Palmisano v Cessnock City Council
[2002] NSWLEC 81
•03/15/2002
Land and Environment Court
of New South Wales
CITATION: Palmisano v Cessnock City Council [2002] NSWLEC 81 PARTIES: APPLICANT
Richard PalmisanoRESPONDENT
INTERVENERS
Cessnock City Council
Simon Hawse
Clare HawseFILE NUMBER(S): 10622 of 2001 CORAM: Talbot J KEY ISSUES: Development Application :- orders by consent of all parties including intervener - costs reserved LEGISLATION CITED: Land and Environment Court Act 1979 s 16A(1) CASES CITED: DATES OF HEARING: 15/03/2002 EX TEMPORE
JUDGMENT DATE :
03/15/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr J E Robson (Barrister)
SOLICITORS
Blake Dawson WaldronRESPONDENT
INTERVENERS
Mr R P Mallik (Solicitor)
SOLICITORS
Cessnock City Council
Mr R A Harper (Solicitor)
SOLICITORS
Holman Webb
JUDGMENT:
IN THE LAND AND Matter No. 10622 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 15 March 2002
Clare Hawse
1. HIS HONOUR: This matter comes before the Court for the purpose of determining whether orders should be made pursuant to a notice of motion filed on 25 February 2002 by parties described as interveners, namely Simon and Clare Hawse. The Registrar granted them leave on 18 February 2002 to conditionally appear in the proceedings, for the purposes of the notice of motion.
2. There has been a wide-ranging discussion and the Court is appraised of the issues raised by the interveners’ notice of motion, namely as to whether the Court has jurisdiction to determine an issue raised as a consequence of the framing of the development application on the basis of a certain access being provided and formally comprised in a statement of issues filed by the council, apparently in October 2001. The parties approached the hearing on the basis that the issue of a particular access would need to be determined. The notice of motion by the interveners is predicated on the basis that the issue of access would be resolved as a succinct issue of law in these class 1 proceedings.
3. In the course of submissions the Court has been informed that there are Supreme Court proceedings pending, wherein declarations are being sought as to the right of the present applicant to use access over the interveners’ land or across a road or track designated in a certain position through the interveners’ land. Apparently, that matter is to be hotly contested in the Supreme Court. In those circumstances, the Court has given an indication that, in the light of alternative conditions which were filed in Court by the council this morning (marked as exhibit A in the proceedings), the issue of the access across the interveners’ land is not a necessary issue such that it must be determined in these proceedings in order to resolve the application for development consent.
4. Even if that were not so, the Court has indicated that if the matter were fully argued it would be unlikely to exercise its discretion under s 16A(1) of the Land and Environment Court Act 1979 to allow the question of access over the adjoining land to be determined as a matter ancillary to the Court’s jurisdiction.
5. Firstly, it is not necessary now, having regard to the condition which the council put forward, to determine the issue in these proceedings.
6. Secondly, and in any event, the Supreme Court is seised of the matter and it would be, in the Court’s view, appropriate for the Supreme Court to determine the issues between the intervener and the applicant in that respect rather than to proceed to determine the same question in class 1 proceedings in this Court.
7. As a consequence of that preliminary indication the parties have been given an opportunity to consider their position and invited to indicate to the Court whether, in the light of what the council now proposes as the conditions of consent, the Court could determine the appeal by the granting of consent subject to those conditions.
8. Mr Robson, who appears for the applicant, agrees on behalf of his client that the Court is entitled to grant consent subject to that condition. As I understand the position, he makes no further submission beyond maintaining that his client would seek to have the question of access over the interveners’ land resolved in these proceedings. For reasons I have already explained, the Court is not prepared to proceed to determine that question in these proceedings.
9. The council is content for the Court to determine the appeal by the grant of development consent to the erection of a shed on the subject land in the terms of the development application, subject only to the conditions which are exhibit A.
10. Mr Harper, who appears for the interveners on the notice of motion has foreshadowed that the notice of motion by his clients, and in respect of which they have been given leave to appear as parties for the purpose only of the notice of motion, can be dismissed if development consent is granted subject to the conditions in exhibit A.
11. Any question of costs in relation to the notice of motion and indeed the proceedings, can be reserved.
12. The formal determination of the Court and the orders that the Court makes are as follows:
13. ROBSON: Before your Honour articulates those, I can see no reason, with respect, as to why the Court wouldn’t entertain an application for costs now, which I may have inelegantly anticipated, telegraphed a little earlier.
14. HIS HONOUR: I don’t think it was inelegant, but anyway, can you deal with the issue of costs in three minutes?
15. ROBSON: I would have thought that given the circumstances the submission was relevantly short, and that is that on the solemn material put before the Court, the Court has its normal procedures, we have proceeded a certain way down the track. All we would want would be our costs thrown away, conceding of course that some of the work--
16. HIS HONOUR: Against who?
17. ROBSON: Against the council.
18. HIS HONOUR: Do you seek any costs against Mr Harper?
19. ROBSON: No.
20. HIS HONOUR: Are you in a position to argue that Mr Mallik?
21. MALLIK: I certainly oppose that application.
22. HIS HONOUR: Yes but are you in a position to argue it? I can imagine you’re going to oppose it.
23. MALLIK: Yes I can argue it, your Honour, the basis--
24. HIS HONOUR: In the space of three minutes, given that I have got a 2 o’clock matter and a 3 o’clock matter?
25. MALLIK: Wouldn’t be able to argue it in three minutes.
26. HIS HONOUR: I hesitate to bring you back this afternoon because of time constraints just indicated. I think the question of costs should be reserved in light of the time constraint. The morning has been well-spent as it is. Are you seeking costs?
27. HARPER: I think we probably are. If we’ve got time I can ask.
28. HIS HONOUR: I think perhaps the question of costs should be reserved, Mr Robson, in the light of the position of your opponents.
29. ROBSON: I wasn’t aware of your Honour’s commitments this afternoon.
30. MALLIK: I can indicate on behalf of council I’ll be seeking costs against Mr Robson’s clients.
31. HIS HONOUR: The question of costs will be reserved on the notice of motion and in the proceedings, in the circumstances.
32. ROBSON: Do we have liberty to apply your Honour, in that regard, in relation to costs?
33. HIS HONOUR: You can put on a notice of motion at any time can’t you? If they’re reserved, you just put on a notice of motion. If you want an order for costs against somebody put on a notice of motion, serve them, they’ll be returned. You want the matter to come back before me, is what you’re saying. That will be a question for when it is set down, won’t it?
34. ROBSON: I would have thought that in fact in relation to that aspect your Honour is part-heard
35. HIS HONOUR: Well I might be. And you could put that to the Registrar.
36. ROBSON: We’re happy for the motion your Honour.
38. The formal orders of the Court are:37. HIS HONOUR: You’ve got to file a notice of motion to tell whoever it is that you want costs against, that you want it. And Mr Mallik is going to be in there too, Mr Harper’s going to be in there. I don’t think it’s a matter that can be dealt with in the constraints of today. I think that it’s a good result that the matter has been resolved at least for the purposes of the proceedings, the main proceedings today.
(1) Appeal upheld.
(2) Development application for the erection of a double garage on Lot 38 DP 755230 Laguna is determined by the granting of development consent subject to the conditions comprised in exhibit A to be attached to the formal order of the Court.
(3) Notice of motion filed 25 February 2002 on behalf of Simon and Clare Hawse is dismissed.
(4) Costs in relation to the notice of motion filed 25 February 2002 are reserved.
(6) Exhibit A is retained.(5) Costs in the proceedings are reserved.
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