John Hatch trading as JMH Living Design v Sutherland Shire Council

[1999] NSWLEC 120

Land and Environment Court

of New South Wales

CITATION:

John Hatch trading as JMH Living Design v Sutherland Shire Council [1999] NSWLEC 120

PARTIES

APPLICANT
John Hatch trading as JMH Living Design

RESPONDENT
Sutherland Shire Council

NUMBER:

10941 of 1998

CORAM:

Cowdroy AJ

KEY ISSUES:

Costs :- in class 1 - council previously determining similar application without objection - delay in raising point of law - circumstances not amounting to "exceptional circumstances"

LEGISLATION CITED:

Land & Environment Court Practice Direction 1993
Land & Environment Court Act 1979

DATES OF HEARING:

05/24/1999

DATE OF JUDGMENT DELIVERY:

06/01/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso

SOLICITORS
Dunhill Madden Butler

RESPONDENT
Mr S Berveling

SOLICITORS
Legal Services Department
Sutherland Shire Council

JUDGMENT:

1. The applicant seeks an order that the Sutherland Shire Council (“the council”) pay its costs of the proceedings which were determined in its favour by this Court on 30 March 1999.

2. The proceedings concerned the interpretation of the term “cluster housing” in the council’s Local Environmental Plan 1993. The council had alleged the development proposed by the applicant was prohibited as it did not conform to such definition. Accordingly the class 1 proceedings required the court to determine a question of law.

3. Clause 10 of the Land and Environment Court Practice Direction 1993 (NSW) provides that “ the practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional ”. Despite such practice direction, the court retains an absolute and unfettered discretion as to costs by virtue of s 69(2) of the Land and Environment Court Act 1979 (“the Act”). The Court has recognised that it is entitled to make an order for costs where “exceptional circumstances” exist (see for example Bevillesta Pty Limited v Parramatta City Council (1988) 65 LGRA 358; Minas v Botany Municipal Council (1988) 65 LGRA 129; Chris Lonergan & Associates v Byron Shire Council (unreported 10268 of 1997, Pearlman CJ, 27 April 1998); Jeffrey Nahum v North Sydney Council (unreported 10592 of 1993, Stein J, 25 February 1994); Cadonia Pty Limited v Leichhardt Council (unreported 10480 of 1993, Bignold J, 5 August 1994); Teller Properties Pty Limited v Randwick City Council (unreported 20147 of 1994, Talbot J, 3 September 1994). In Outdoor Australia Pty Limited v Auburn Council (1996) 89 LGERA 365 at 366-369 the Chief Judge considered numerous authorities and the history of such rule.

4. The applicant submits that council’s conduct was capricious. It relies upon the fact that on 8 August 1997 the council granted permission for a cluster housing development for five dwellings at 2 Matthew Flinders Place, Burraneer which was virtually identical to the development the subject of the applicant’s deemed refused application. The applicant further relies upon the fact that following the deemed refusal of the proposed development almost six months elapsed until the point of law was raised.

5. “Exceptional circumstances” are difficult to define. Each case obviously must be considered taking into account all the circumstances in order for a determination to be made. Conduct which could be regarded as unreasonable, vexatious, frivolous or arising out of mala fides could each constitute exceptional circumstances and would warrant a court exercising its discretion to award costs.

6. The fact the council had previously given approval for a development having the same shortcomings as the development from which the point of law arose does not constitute exceptional circumstances. The council was entitled to consider upon reflection that its interpretation of the LEP may have been erroneous and have such question determined by a court. It could not be said the result was obvious or “ seemed to be quite apparent ” as was found by Stein J in Nahum v North Sydney Municipal Council (1994) 83 LGERA 200 at 200. Nor could it be said that the point was “ obviously untenable ” as was considered by Bignold J in Cadonia (supra). In Outdoor Australia (supra) Pearlman J found that in the case before her there was a “ fine line indeed ” as to whether the clause in question constituted a prohibition or a development standard. A similar observation can be made of the point of law raised in these proceedings. The arguments were complex and it was necessary for the court to consider in detail the various competing arguments before it could reach a decision. The council’s delay in raising the argument does not detract from the basic consideration that it was entitled to have the interpretation of the relevant clause of the Local Environmental Plan determined by this Court.

7. In all of the above circumstances the court does not consider there are “exceptional circumstances” which would warrant an order being made in favour of the applicant in respect of costs.

Orders

8. The court orders that the Notice of Motion be dismissed.