Harris v Pittwater Council

[2007] NSWLEC 97

Land and Environment Court

of New South Wales

CITATION:	Harris v Pittwater Council [2007] NSWLEC 97
PARTIES:	APPLICANTS Brian Harris and Victoria Harris RESPONDENT Pittwater Council
FILE NUMBER(S):	40440 of 2006
CORAM:	Pain J
KEY ISSUES:	Costs :- exercise of discretion to award costs in contested Class 4 proceedings
LEGISLATION CITED:	Land and Environment Court Act 1979 s 69
CASES CITED:	Harris v Pittwater Council [2006] NSWLEC 697 ; Latoudis v Casey (1990) 170 CLR 534 ; Oshlack v Richmond River Council (1998) 193 CLR 72
DATES OF HEARING:	7 February 2007
EX TEMPORE JUDGMENT DATE:	7 February 2007
LEGAL REPRESENTATIVES:	Mr J Ayling SC SOLICITORS Abbott Tout RESPONDENT Mr A Galasso SC SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

7 February 2007

40440 of 2006 Harris v Pittwater Council

EX TEMPORE JUDGMENT - COSTS

1 Her Honour: I made a declaration in Harris v Pittwater Council [2006] NSWLEC 697 on 7 November 2006 that:

That on a proper construction of Pittwater LEP 1993 the use of the property, being Lot 22A in DP18005, Folio Identifier 22A/18005 known as 23 Paradise Avenue, Paradise Beach, Clareville as the site of the two dwelling houses presently erected thereon, is lawful.

2 Each party now seeks its costs in these proceedings. The Applicants argued they were successful in the proceedings and costs should follow the event. The Council argued that there was disentitling conduct in commencing and pursuing the proceedings so that its costs should be paid.

3 The Applicants relied on the affidavit of Ms Bracks dated 6 February 2007 annexing a Notice of Determination refusing the Applicants’ development application for additions to the dwelling on the property in question because:

…

2. The allotment is identified under Pittwater Local Environmental Plan 1993 as being zoned 2(a) (Residential “A”). Subject to clause (21B) in PLEP 1993, the allotment is within Area (1) as shown on the Dual Occupancy Map, which prohibits dual occupancy development on the subject land. The applicant has not established that existing use rights are attached to the whole of the land for which development consent is sought, and as such, Council cannot grant its approval for the proposed works (S 79C(1)(a)(i) Environmental Planning and Assessment Act, 1979).

4 A further letter from the Council to the Applicants dated 24 November 2004 is at annexure B which contains similar statements.

5 That is relevant history leading up to the litigation and explains why the Applicants commenced the proceedings seeking a declaration that they had existing use rights. The nature of the declaration sought required that affidavit evidence be filed concerning the history of development on the site.

6 A week before the hearing on 2 November the Applicants filed a Notice of Motion dated 27 October 2006 seeking an amendment of the pleadings so that an alternative declaration was sought that:

Alternatively that on a proper construction of Pittwater LEP 1993 the use of the property as the site of the two dwelling houses presently erected thereon is lawful.

7 This amendment was allowed by me on 27 October 2006. No further evidence was filed as a result of this amendment as this declaration also required the same evidence as was relevant to the existing use rights declaration sought. When the matter was heard the Applicants argued firstly for the alternative declaration of lawfulness of development on the site. They did not press for the declaration of existing use rights.

8 The Council argued that there is disentitling conduct on the Applicants’ part because while they commenced proceedings seeking a declaration of existing use rights they abandoned this argument at the hearing. The implication of the argument was that if the Applicants had commenced the proceedings on the basis they argued for rather than in relation to existing use rights there may have been no need for the proceedings at all.

Finding

9 Section 69 of Land and Environment Court Act 1979 provides me with broad discretion which I must exercise judicially. The usual order is that costs follow the event unless the successful litigant has engaged in disentitling conduct relating or leading up to the litigation see Oshlack v Richmond River Council (1998) 193 CLR 72 at 96 – 98 [65] – [70] per McHugh J. Latoudis v Casey (1990) 170 CLR 534 states that costs are compensatory. The Applicants were arguably successful given the decision that I made was one of the declarations they sought. Was there any disentitling conduct which suggests the Applicants should not get costs?

10 Were the proceedings unreasonably commenced? Given the history of this matter before the Council as identified in the documents attached to Ms Bracks’ affidavit I do not think so. It was clear that the Council’s view was that insufficient evidence was provided to it to demonstrate the Applicants had existing use rights and, therefore, further development on the property was prohibited. According to the annexures to Ms Brack’s affidavit, its view was not motivated by a belief that the development of two houses was not in fact prohibited, that is, that such development was lawful. The Applicants acted reasonably in commencing the proceedings.

11 Were they unreasonably conducted? The late amendment of the pleadings a week before the hearing did not cause additional costs to be incurred nor were any costs thrown away in that the evidence filed in relation to the planning and development history of the site was not thrown away. The Council argued that the Applicants abandoned the case that they commenced based on establishing existing use rights as the alternative declaration sought was contrary to the assertion of existing use rights.

12 I consider the Applicants’ characterisation of the proceedings is correct. The case concerned the construction of certain planning instruments in relation to which there were two possible but inconsistent approaches arriving at the same outcome. The two alternatives both required a consideration of the history of the site to which the evidence filed was directed. Regardless of which alternative construction was argued for, the Applicants had the onus of proving what the legal consequence of the history of the site as contained in the evidence was. This is not a case where a party unreasonably pursued an issue which had no merit. It would have been unwise to abandon one of these approaches when the Court’s determination of the legal consequence of the evidence was unknown. I do not consider there were costs thrown away by the Applicants’ conduct of the case and there is no basis on which to order apportionment because the Applicants were only half successful, which was one alternative submission made by the Council. There was no unreasonable conduct of the proceedings by the Applicants. The Applicants should have their costs.

Orders

13 The Court orders that the Respondent pay the Applicants’ costs of the proceedings including the hearing on costs on 7 February 2007.