K R & P C Hayden v Eurobodalla Shire Council

[1988] NSWLEC 18

Land and Environment Court

of New South Wales

CITATION:

K R & P C Hayden v Eurobodalla Shire Council [1988] NSWLEC 18

PARTIES:

APPLICANTS
K R & P C Hayden

RESPONDENT
Eurobodalla Shire Council

FILE NUMBER(S):

10259; 10260 of 1987

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Local Government Act 1919

CASES CITED:

DATES OF HEARING:

DATE OF JUDGMENT:

09/28/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This matter involves appeals against two notices served pursuant to s.317B(1A) of the Local Government Act 1919 ("the L.G.A."), directing the owners to demolish three dwellings. The Court allowed the appeals against the notices, but made substitution of its own orders with respect to each notice. Each party now makes application for costs, or makes submissions with respect to the manner in which the Court should exercise its discretion with respect to the making of an order for costs.

The hearing of the case occupied two days and the Court had the benefit of a view. The matter was disposed of with expedition because the Court had the assistance of experienced Counsel which enabled it to minimise the issues that had to be argued. There was no dispute at the hearing as to the lawfulness of the buildings, and the evidence was generally confined to the circumstances of the case, as outlined by one of the owners and members of the owners' family. On behalf of the Council, town planning evidence and evidence as to the alleged structural defects of the buildings and remedies required if the buildings were to remain was received.

Expert evidence called by the appellants in that regard generally was in line with the evidence given by Council, however the necessity for certain rectification works was disputed, and the Court had to resolve those differences.

Ultimately, the orders of the Court were that one building should be completely demolished, but that two buildings could remain subject to the execution of some of the works and conditions recommended by Council.

The question of costs is always a difficult matter because the parties are not entitled as of course to an award for costs, and the matter must remain as the exercise of the Court's discretion. It is important that that discretion be exercised on the individual facts of the case to which it relates. I am most conscious, particularly in cases such as s.317B(1A) notices, that the exercise of the discretion should not relate to considerations of penalty or punishment. More importantly I should have due regard to the fact that one of the parties had to bring the matter to the Court, and then determine which party was substantially successful therein.

The Council exercised its statutory power to order the demolition of unauthorised structures. S.317B gave the power of demolition as an alternative to an order that works be carried out to bring such building into conformity with the relevant Act and Ordinances. Whilst it had no duty so to do, Council prior to exercising its power gave written notice to the owner of the alleged departures from the provisions of the L.G.A. with respect to the erection of a building, and invited representations as to why legal proceedings should not be instituted. Council relies heavily upon this invitation because, so it submits, had the owners responded to that invitation by suggesting the exercise of the alternative, and the doing of works, such matters would have been considered by Council. It submits that no real response, apart from what it calls emotional grounds, was made, and therefore Council had no information upon which it could base any decision to substitute the alternative to demolition in any notice that it serv

ed. Council submits that it had no way at that stage of knowing the manner in which the buildings were constructed, or whether or not appropriate works therefore could be carried out.

On the other hand, the owners submit that it is clear that, at the time the Council made its decision to order demolition, it had adopted a blanket policy which applied to the whole of the Shire to order demolition of buildings erected without consent.

It is not necessary for me to go into details of my findings in this regard, but I note that I was satisfied that because of the application of that policy, Council at that time did not appear to give a full consideration of the merits of the circumstances of the case, or consideration to whether or not it should order works to be carried out as an alternative to demolition.

The owners exercised their right of appeal, but it was not until just before the hearing, or during the hearing, that a list of defects of the various buildings or conditions which might be imposed to bring the buildings up to a reasonable standard was made available to them. I note that such conditions were submitted to the Court at my request.

The case was conducted by Council on the basis, that notwithstanding that building "4" may be appropriate for retention as a Rural Worker's Dwelling and notwithstanding that works might be carried out to all of the buildings to bring them up to standard, the Court should not exercise its discretion to substitute works of rectification to any of the buildings and that each of the buildings should be demolished.

Council was wholly successful with respect to so-called building "3", but in the manner in which it conducted its case it was unsuccessful in regard to the demolition of the remaining buildings.

On the other hand, however, this hearing was the only opportunity that Council had to canvass and examine fully all of the circumstances with respect to the erection of structures, and therefore the determination of matters which should be carried out if any of the buildings were to be maintained. Council succeeded in having orders made requiring substantial works to be carried out to such buildings.

As I understand my power, I have a wide discretion to order that a party pay costs of the proceedings. I am satisfied on the whole that the respondent Council has been substantially successful in the proceedings. I am not, however, satisfied in the circumstances of this case that it should expect costs follow the event, and that it be awarded an order for all of its costs. I find it most difficult to try to apportion the costs, particularly where, on the one hand, one building has been the subject of an order for demolition, and, on the other, it was only at the hearing that the owners gave any indication that they preferred to carry out works of rectification or made any offer to carry out such works rather than demolish the buildings.

In all of the circumstances, I am of the opinion that the Council should have an order for costs, but that order should be limited to half of its costs incurred with respect these proceedings, and I so order.

The order is:

1. Applicants to pay one half of the costs of the respondent.