Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No. 4]
[2000] NSWLEC 158
•07/24/2000
Land and Environment Court
of New South Wales
CITATION: Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No. 4] [2000] NSWLEC 158 PARTIES: APPLICANT:
RESPONDENT:
Mirvac Homes (NSW) Pty Limited
Parramatta City CouncilFILE NUMBER(S): 10320 of 1999, 10369 of 1999 and 10370 of 1999 CORAM: Lloyd J KEY ISSUES: Costs :- planning appeal- protracted appeal process that was ultimately successful - whether exceptional circumstances - whether council's actions 'mischievous and obstructive' LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5, s 97
Land and Environment Court Act 1979 s 69CASES CITED: Bryant v Lismore City Council, Talbot J, NSWLEC, 4 July 1997, unreported;
MacDonald v Mosman Council (2000) 107 LGERA 211;
Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No. 1] [1999], Bignold J, NSWLEC, 29 October 1998, unreported;
Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No. 2] [1999] NSWLEC 38;
Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No. 3] [1999] NSWLEC 139;
Outdoor Australia Pty Limited v Auburn Council (1996) 89 LGERA 365DATES OF HEARING: 29/05/2000 DATE OF JUDGMENT:
07/24/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
J J Bingham (Solicitor)
SOLICITORS:
Coudert Brothers
P C Tomasetti (Barrister)
SOLICITORS:
Storey & Gough
JUDGMENT:
1
IN THE LAND AND Matters Nos: 10320 of 1999;
ENVIRONMENT COURT 10369 of 1999 and 10370 of 1999
OF NEW SOUTH WALES Coram: Lloyd J
- Decision date:24 July 2000
Mirvac Homes (NSW) Pty Limited
Applicant
v
Parramatta City Council
Respondent
REASONS FOR JUDGMENT [4]
Background
1. This is a motion by the applicant for an order that the respondent pay its costs of the proceedings heard on the 22, 23 and 24 September 1999 and in which I delivered a reserved judgement in its favour on 25 October 1999 ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.3] [1999] NSWLEC 139). Those proceedings were three appeals heard together under section 97 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) against the respondent’s deemed refusal of the applicant’s development application relating to three parcels of land formerly known as the Dalmar Estate at Carlingford. The three appeals were as follows:
10320 of 1999 A development application for seventy one (71) residential dwellings and associated civil and landscaping works and for community title subdivision thereof under the Community Land Development Act 1989 on lots 2 and 4 in Deposited Plan 739215 (known as Precinct 1).
10370 of 1999 A development application for thirty four (34) residential dwellings and associated civil and landscaping works and for community title subdivision thereof on part of lot 1 in Deposited Plan 739215 (known as Precinct 2).10369 of 1999 A development application for twenty four (24) residential dwellings and associated civil and landscaping works on lot 5 in Deposited Plan 739215 (known as Precinct 3).
2. Although section 69 of the Land and Environment Court Act 1979 provides that costs are in the discretion of the Court, this discretion must, of course, be exercised judicially; that is to say, it must be exercised in accordance with established principles. The Court has issued a long standing practice direction on costs as follows:
The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional.
The practice direction amounts to a statement of an established principle relating to the exercise of the discretionary prior to make orders for costs which has been consistently applied by the Court in planning and building appeals .
3. The attempt by the applicant to develop the Dalmar Estate has been somewhat protracted. In 1998 the applicant appealed to the Court against the deemed refusal of the respondent to develop the land by way of subdivision and the erection one forty two (142) dwellings. The dwellings were variously free-standing dwellings and so-called courtyard homes. The latter comprised groups of two dwellings having the appearance of being attached to each other, but in fact being physically separated from each other by a space of 50 mm. In that appeal a preliminary question of law was heard and determined by Bignold J ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.1], Bignold J, NSWLEC, 29 October 1998, unreported). The question arose because of some doubt as to whether the courtyard homes were dwelling houses and thus permissible within relevant zone. The respondent (“the council”) contended that a dwelling house was relevantly defined as a building containing one but not more than one dwelling and further contended that the courtyard homes were attached dwellings being building which contained more than one dwelling and were thus prohibited within the zone. Bignold J found that each dwelling would be structurally independent of the immediately adjacent dwelling and held that the form of development was thus permissible.
4. On 4 March 1999 I determined the appeal in those proceedings after a hearing which occupied five (5) days ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.2] [1999] NSWLEC 38, unreported). I allowed the appeal for the subdivision but dismissed the appeal for the residential development on the ground that there was insufficient solar access to a number of the proposed dwellings. Other issues, such as heritage issues, the density of the proposed development and traffic generation were resolved in favour of the applicant.
5. The applicant then set about re-designing the dwellings to rectify the shortcomings identified by me and made the three further development applications for the development of the Dalmar Estate, which I have described (in paragraph 12 above). It seems that the applicant consulted the expert witness who gave evidence for the council in the proceedings determined by me, Mr G W Smith, whose opinions led me to dismiss the previous appeal. The re-design met the Mr Smith’s criticisms. The basic design of the courtyard homes, however, remained the same as that which was considered by Bignold J.
6. The applicant appealed to the Court against the deemed refusal of the council to consent to the three further development applications. Those appeals were heard by me over three (3) days and on 25 October 1999 in a reserved judgment I allowed the appeals and granted consent to the applications, subject to conditions ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.3] [1999] NSWLEC 239, unreported). The council conceded at that hearing that the design of the buildings was now satisfactory insofar as they concerned amenity considerations. It is the costs of that appeal which the applicant now seeks.
7. There were other issues, however, which were raised by the council in the appeal. The council sought to rise again precisely the same issue which was determined by Bignold J ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.1]) . I held that the council was prevented by the principal of issue estoppel from raising again the same issue which was determined by Bignold J. The council raised as an issue the question of whether Grimes Lane, to which part of the proposed development has a frontage, was a public road. This was an issue which the council had not raised in the previous appeal determined by me. The council contended that Grimes Lane was not a public road and that the proposal for vehicular access via Grimes Lane was, as a consequence, not possible. I held that Grimes Lane was a public road and could thus be used for vehicular access to the proposed development. The council again raised a number of merit considerations which had been raised and decided in the previous appeal, notably heritage issues, the density of the proposed development and the issue of traffic generation. The council did not call any new expert evidence of the merit issues but simply relied upon the objections of nearby residents, whose objections were a repetition of those which were raised in the previous appeal determined by me ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.2]). The applicant relied upon my previous findings on those issues and upon the expert evidence of Mr N Ingham (town planner) and Mr M B Colston (traffic engineer). In the absence of any expert evidence to the contrary I found that the merits of the proposed development are all one way; that is to say, in favour of the grant of development consent.
The submissions of the parties
8. Mr J J Bingham, appearing for the applicant, accepted the need to demonstrate the existence of exceptional circumstances. The exceptional circumstances are said to be as follows. On the issue of the permissibility of the development the applicant sought to raise again the very issue which had been heard and determined by Bignold J ( in Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.1]). As to the status of Grimes Lane, which had not been raised as an issue in the previous appeal ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.2]), Mr Bingham submits that in raising the issue the council was being mischievous and obstructive. It was a device to frustrate the applicant. The council had not acted reasonably in raising the issue and if it was genuinely concerned about the status of the lane then it could have exercised its powers under section 16 of the Roads Act 1993 by publishing a notice in the Gazette dedicating it as a public road. As to the general merits, no expert evidence was presented by the council, no new evidence was presented by the residents and there was nothing which would have led the court to depart from my earlier conclusion. The council had on 22 July 1999 been advised by the expert retained by it, Mr G W Smith, that he could not support the council’s case on the merit issues.
9. Mr P C Tomasetti, appearing for the respondent, submits that there were no exceptional circumstances in the present case. The issue of permissibility was raised to reserve the council’s appeal right and protect its position in that respect. The council was unaware at the previous hearing ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.2]) of the questionable status of Grimes Lane and it took a position that the status of the lane should be established. As to the merit issues, Mr Tomasetti submits that it was proper for the council to lead evidence from the objectors and this was no different from the practice where consent orders are sought by the parties, in which event it is the practice of the court to afford to objectors the opportunity of giving evidence. In such circumstances an applicant is well advised to adduce expert evidence to counter such objections. The calling of evidence by objectors is, in Mr Tomasetti’s submission, consistent with one of the objectives of the EP&A Act: “ to provide increased opportunity for public involvement and participation in environmental planning and assessment ” (section 5 (c)).
Conclusions
10. Both Mr Bingham and Mr Tomasetti referred to a number of decided cases on applications for costs in planning appeals. Each of the cases referred to, however, are dependant upon their own facts and are not determinative of the question of costs in this case. As Pearlman J said in Outdoor Australia Pty Limited v Auburn Council (1996) 89 LGERA 365 (at 370):
It is a matter for the Court on the facts in each case to determine if exceptional circumstances exist which would justify an exercise of the Court’s discretion to award costs .
11. I nevertheless accept the views expressed by Talbot J in Bryant v Lismore City Council (NSWLEC, 4 July 1997, unreported) that if the actions of the council are “ mischievous and obstructive ” then that is a sufficient ground for a finding of exceptional circumstances.
12. As I have noted, the three issues in the case were: firstly , the question of permissibility of the development, secondly , the status of Grimes Lane, and thirdly , the merit issues.
13. The first issue was unusual in that the council wished to appeal against Bignold J’s determination (in Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.1]) . That determination was, however, on an interlocutory question and not a final determination, so that no right of appeal arose. Since the council was successful in the final hearing (in Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.2]), there was no ground upon which it could appeal against Bignold J’s decision. I accept Mr Tomasetti’s submission that the council raised the issue in the further appeal (( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.3]) to reserve its appeal right and to protect its position. The question of whether the council was estopped from raising the issue in the second appeal was a live one which was fully argued. These facts do not suggest to me that the circumstances in which the issue was raised were either exceptional or that in doing so the council was being either mischievous or obstructive.
14. The second issue relating to the question of whether Grimes Lane was a public road was, as I have noted, one which was not raised in the previous appeal. This was because the council was not then aware that there was a doubt as to the status of the lane. Having being alerted to doubts over the status of the lane it was, in my opinion, proper for the council to have the issue determined. There is no doubt that it was a relevant issue since the applicant proposed to rely upon the lane for access to part of the proposed development. In my judgment of 25 October 1999 ( Mirvac Homes (NSW) Pty Limited v Parramatta City Council [No.3]) I said (at 39):
As I have noted ... the Council has only recently come into possession of information which suggests that this assumption [that Grimes Lane was a public road] might be misplaced . What is the Council to do? Should it stand by and ignore the information which it now has? If it were to do that, then it may only compound the problem if the successor in title to the owner of the lane were to subsequently appear and claim ownership of it. If the Council were to stand by and not take the point, it could conceivably be sued by the applicant if, having constructed the garages fronting onto the lane, either it or those who purchase the houses from it were to be denied access by the true owner. It could be argued that, rather than acting unconscionably, by taking the point now the Council may be acting responsibly. Although the likelihood of the true owner of the lane or his successor in title turning up is only a remote possibility, it cannot be ruled out altogether. Stranger things have happened in the past, particularly in the ownership of Old System land, as this is.
15. In my opinion this comment shows that the raising of this issue by the council, after having recently come into position of information which questioned the status of the lane, could not be described as an exceptional circumstance, neither could it be said that the council was being either mischievous or obstructive.
16. As to the merit issues, I accept the force of Mr Tomasetti’s submissions. The merit issues were not raised by the council but by the objectors. The council’s solicitor, Mr C C Gough, told the applicant’s solicitor, Mr M T Driscoll, on 25 August 1999 (about one month before the hearing) the following:
We are instructed that the only issue to be pressed at the hearing of this matter is public interest. As you are aware, a large number of objectors have commented on this application and wish to give evidence at the hearing of the appeal.
17. According to Mr Driscoll, there was a further conversation between him and Mr Gough shortly before 8 September 1999 (about two weeks before the hearing dates) as follows:
I said “You said that the only issue now is the public interest, what do you mean by that?
- Christopher Gough said “Matters raised by objectors in their letters of objection.”
I said “I intend to file reports of Neil Ingham and Michael Colston to address the issue raised by objectors in their letters.”
18. The council thus made it clear that as far as it was concerned there were no merit issues which it saw to justify a refusal of the development applications, but in accordance with the practice of the Court and consistent with the relevant objectives of the Act to which Mr Tomasetti referred (paragraph 9 above) it intended to allow the objectors to give evidence. It was solely for the purpose of meeting those objections that the applicant commissioned the expert reports of Mr Ingham and Mr Colston. It seems to me that there is nothing exceptional in this and neither were the actions of the council either mischievous or obstructive.
19. It follows that since no exceptional circumstances have been established, the applicant’s notice of motion for costs must be dismissed. In accordance with the principle described MacDonald v Mosman Council (2000) 107 LGERA 211 (at 215-216), the applicant must pay the costs of the motion.
20. I make the following orders:
1. The notice of motion is dismissed.
2. The applicant must pay the costs of the notice of motion.
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