J a Westaway and Son Pty Ltd v Manly Council

[2005] NSWLEC 565

Land and Environment Court

of New South Wales

CITATION:

J A Westaway and Son Pty Ltd v Manly Council [2005] NSWLEC 565

PARTIES:

APPLICANT:
J A Westaway and Son Pty Ltd

RESPONDENT:
Manly Council

FILE NUMBER(S):

10359 of 2005

CORAM:

Bignold J

KEY ISSUES:

Costs :- consent orders upholding appeal and withdrawing statutory enforcement order

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 121B
Land and Environment Court Rules, Pt 16 r 4(2)

DATES OF HEARING:

31/08/2005

EX TEMPORE JUDGMENT DATE:

08/31/2005

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Thompson, Barrister
SOLICITORS
Williams Woolf & Zuur

RESPONDENT:
Mr R K Graham, Solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

31 August 2005

10359 of 2005 J A WESTAWAY & SON v MANLY COUNCIL

JUDGMENT

1 HIS HONOUR: This is an application for costs in concluded class 1 proceedings, involving an appeal against a purported statutory enforcement order issued by the Council on the Applicant (who was the builder retained by the owners of the property at 10 Marshall Street, Manly, to undertake approved building additions and alterations to the dwelling house situated at that address).

2 An order purporting be made pursuant to item 15 of the table to the Environmental Planning and Assessment Act 1979, s 121B was given to the builder by notice dated 21 March 2005. When the proceedings came before the Court at the initial callover the Applicant was directed to file a Statement of Issues which he duly did. In the issues filed, a number of points are raised, including the claim that the statutory order was invalid. Particulars were assigned to that specific claim which seemed to rely upon an inconsistency in the text between the order that was given and the draft form of that order, of which notice was given to the builder some little while before the order was finally given.

3 The textual difference would appear to be explicable on the basis that there was a typographical error or omission in the text of the order that was given. (That typographical error reflects an erroneous representation of the relevant condition of the development consent.) I interpose that an order pursuant to item 15 of the section is an order “requiring compliance with the development consent in circumstances where the development consent is not being complied with”, and the person to whom the order may be given “is the person entitled to act upon the development consent or a person acting otherwise than in compliance with it.” Although the point was not taken, it is extremely doubtful whether the order would have been regarded as a valid order owing to the identity of the person to whom it was directed. But in any event, that matter cannot be unravelled because there is really no evidence about the matter, save to say that when the matter (following the filing of the Statement of Issues) came back to the Court on 28 July 2005, the Council and the Applicant asked the Court to make consent orders, that the appeal be allowed, and the statutory order be withdrawn, and that costs be reserved.

4 The Applicant today seeks an order for costs against the Council and asserts that the history of the case is sufficient to lead the Court to conclude that the discretion to order costs in accordance with the Rules of Court in these proceedings is fair and reasonable: See Land and Environment Court Rules, Pt 16 r 4(2).

5 The Solicitor appearing for the Council has contested this submission, submitting that if the person to whom the proposed statutory enforcement order was given had raised the matters that were ultimately raised in this appeal, in respect of the proposed order the Council may not have issued the final order. The strength of this argument must depend upon the validity of the other issues that had been raised, because the point ultimately asserted for invalidity namely the textual differences between the draft order and the final order of course did not exist when the draft order was given.

6 In the circumstances, I am satisfied that the discretion available to the Court has been successfully invoked by the Applicant in the light of the outcome of this case, and accordingly I order the Council to pay the Applicant’s costs in the proceedings in the sum agreed for failing agreement as assessed.