Parkes v Byron Shire Council

[2003] NSWLEC 78

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Land and Environment Court

of New South Wales

CITATION:	Parkes v Byron Shire Council [2003] NSWLEC 78
PARTIES:	APPLICANT: Parkes RESPONDENT: Byron Shire Council
FILE NUMBER(S):	11050 of 2001
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- determination of preliminary question of law by consent-whether costs should be ordered.
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	15/03/2002
EX TEMPORE JUDGMENT DATE :	03/15/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr T Hale SC SOLICITORS Beesley and Hughes RESPONDENT: Mr I Hemmings, Barrister SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND

Matter No. 11050 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

15 March 2002

PARKES

Applicant

v

BYRON SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J:

1. The Court has before it two matters, one a preliminary question of law raised by the Council in the proceedings, they being an appeal in class 1 against the Council’s refusal of the development application made by the Applicant, and, secondly, a Motion that is not being pressed by the Applicant seeking leave to categorise the development, the subject of the pending class 1 appeal, as a “bed and breakfast establishment” rather than as a tourist facility, the latter of which was the description given to the development application when it was originally lodged with the Council.

2. The second matter has effectively been withdrawn. It arose only by Notice of Motion filed and served on Monday of this week and the Council has responded to it in part by having prepared an affidavit by the Council’s Director of Local Approvals, Mr Pratt, sworn on the 13th (that is Wednesday of this week) and filed on the 14th. It is agreed that by the end of the day on the 13th, the Council had been informed by the Applicant’s Senior Counsel that that Motion would not be pressed and indeed ought not to have been served other than as a draft Motion which had been intended to elicit the Council’s approval so that the Court might deal with that matter in preference to the Council’s question which well before earlier this week had been conceded by the Applicant to not be in contest but, more importantly, not to be decisive or even relevant to the issues raised by the case.

3. The confusion has been compounded by an extraordinary amount of correspondence passing between the parties’ solicitors in recent months and it is unfortunate that in a planning appeal such an amount of detailed correspondence passing between solicitors would be required. Nonetheless the Applicant’s case presented a fundamental problem inasmuch as the development application, which had been made to the Council in 2000, had described the development for which approval was being sought as “the conversion of a dual-occupancy development to a tourist facility”, and in the supporting documentation including the Statement of Environmental Effects and Planning Report there is also raised and discussed and asserted “existing use rights”.

4. Another complicating factor lies in the fact that whilst the development application remained undetermined by the Council, the Applicant’s Solicitor on 24 October last year wrote to the Council advising that the client wished to redefine how the proposed development application, together with an application relating to the adjoining premises also owned by the client, should be described. The letter went on to say that the description of the development considered globally was a bed and breakfast establishment and that each of the two existing developments on the two adjoining lots therefore constituted part of the overall bed and breakfast establishment. The letter went on to say to the General Manger of the Council “please ensure that in any Council reports that the subject development applications be so described”.

5. The Council’s response to this letter was to not accept the Applicant’s suggestion, which it understood to be a purported amendment to the development application and one which would require the Council’s approval if it were to be an effective amendment or variation of the development application conformably to the provisions of cl 55 of the Regulation made under the Environmental Planning and Assessment Act. Thereafter, the Council determined the development application by refusing development consent on a number of grounds, and that was expressed in terms a decision “to refuse the application to convert the dual occupancy development into a tourist facility”. The reasons for refusal provide some 11 reasons for the decision, the last of which asserted that the development was prohibited pursuant to cl 32(4) of the Byron Local Environmental Plan.

6. Soon after the appeal was filed, the Council filed its request to have determined the following question of law, namely “whether the development of the property described in the development application is prohibited having regard to cl 32(4) of the Byron Local Environmental Plan”. Conformably to the Court’s Rules and practice in requesting the determination of that question, the Council advised that its determination was likely to be decisive of the outcome of the proceedings if the Court were to hold that the development was indeed prohibited.

7. Although today after some debate the Applicant has agreed to the question being determined by consent in a manner that I will presently announce, for some time after the matter had been raised with the Court he had indicated that the question of law was not in dispute but that it would not be determinative of the appeal and that in truth it was somewhat irrelevant to the issues raised by the appeal. Indeed, the Applicant opposed the Court directing that the preliminary question of law be determined, but that opposition was unavailing and the Registrar directed that the preliminary point of law be heard by a Judge of the Court and fixed today as the hearing date. The Registrar also gave leave for any other point of law that might be filed and served to be dealt with on the same occasion.

8. It was pursuant to that leave that the Applicant’s Solicitor filed the Notice of Motion that I have earlier discussed. Directions were given by the Registrar in the conventional form requiring the filing of Statement of Facts and Statement of Agreed Facts and written submissions and the like. The difficulty, of course, with the question raised by the Council was that it is premised upon the fact (both legal and factual) that the development application sought approval for “tourist facility development”.

9. On the one hand that premise appears to be singularly uncontroversial because that is precisely how the development application described the proposed development. But on the other hand it was somewhat inapt because as long ago as October last year the Council was on notice that the Applicant had sought a re-definition of the proposed development, namely as part of a “bed and breakfast establishment”. It is common ground that the subject development site is so located that in terms of the Byron Local Environmental Plan a “bed and breakfast establishment” is a permissible form of development and, as I say, it is not disputed (and has not been disputed by the Applicant for some little while now) that within that zone cl 32(4) of the Local Environmental Plan prohibits the carrying out of development for a number of stated purposes including the purpose of “tourist facilities”.

10. The Council perceived that one way in which the case could be determined at the preliminary stage was for the Applicant to seek the leave of the Court pursuant to cl 55 of the Regulation to amend the development application in the manner that the Applicant’s Solicitor had sought in his letter to the Council of 24 October and, at face value, that appears to have been the basis and foundation for the Applicant’s Motion filed earlier in the week. However, Senior Counsel appearing for the Applicant (who has been involved in giving advice in the case) has submitted that it would not be appropriate to determine in advance of the hearing on the merits the question of the proper characterisation of the development in terms of permissible categories and prohibited categories of development under the Local Environmental Plan and has also withdrawn the Motion seeking the Court’s consent under cl 55 of the Regulation for the amendment of the development application.

11. The amendment of the development application, or the re-definition of the development the subject of the development application, may or may not involve physical changes to the proposed development and the existing development and, according to the correspondence at least, there is a strong suggestion that some physical changes may be necessary to support the application for a “bed and breakfast establishment”. However, Senior Counsel for the Applicant has submitted that that consent, if ultimately sought from the Court pursuant to cl 55 of the Regulation, should not be required to be obtained in advance of the hearing on the merits.

12. The upshot of the debate has been, as I have earlier mentioned, the withdrawal of the Applicant’s Motion raising the question of whether the Court would exercise the discretion vested in it under cl 55 of the Regulation in the favour of the Applicant and the determination, by consent, of the Council’s question in a manner that I will presently mention. That determination necessarily is not determinative of the case and at one stage Senior Counsel for the Applicant put the submission that it served little or no utility, but upon reflection I think he agreed that there might be some utility in giving the determination to the question which I determined in this fashion. By consent, the Council’s preliminary question of law is determined as follows:

The development site, the subject of the pending development appeal, is land to which cl 32(4) of the Byron Local Environmental Plan 1988 applies and in terms of that provision, development for the purpose of a tourist facility is prohibited development.

13. In the course of argument I had suggested that it might be appropriate to give further directions in an endeavour to elucidate the matters still in dispute between the parties, but for the reasons I have already given, Senior Counsel for the Applicant strongly resisted any such preliminary determination preferring instead that the matter be dealt with finally on the merits at the hearing so that all relevant evidence might be given.

14. I might add that the case (and the issues raised in the case) are to be understood in the light of the fact that the existing premises have been used for some while on the basis of providing holiday accommodation on the coast and that class 4 proceedings against the Applicant have been taken by the Council in respect of that use suggesting that it has a commercial flavour which is being conducted without consent.

15. That is the background to the present application and indeed the related application to the existing development similarly used by the Applicant next door to the development site, so that there is some strength in Senior Counsel’s submission that evidence of the way in which the premises have been, and are being, used obviously may become very significant in terms of the Court ultimately categorising the development for which consent is sought. That consent is to extend to the physical structures and thereby the capacity of the existing development to accommodate or provide more accommodation than is currently provided with the existing developments.

16. The matters before the Court having been so determined, the Council has sought an order for costs on a number of bases. Firstly in respect of the Motion filed on Monday of this week by the Applicant but withdrawn today and notified to the Council on Wednesday as having been withdrawn, the Council says that costs and expenses were incurred in obtaining the affidavit of Mr Pratt. Secondly, it says that it should have costs on the preliminary question it has raised because it has been entirely successful by virtue of the consent determination that I have given. Thirdly, it says that the Applicant had not complied with the directions given by the Court for filing of the statement of facts and the like.

17. This application for costs was met by an application for costs by the Applicant against the Council in respect of the Council’s preliminary question of law on the basis that the question of law ought not to have been raised and pressed. The Applicant had opposed the determination of the question as a preliminary question of law because he had (acting on advice no doubt) perceived the question to be irrelevant and certainly not determinative of the issues truly raised by his appeal. Ultimately, for the reasons that I have already given, the Applicant’s view of that question of law has been vindicated inasmuch as it is now conceded that though having some utility, the question does not dispose of the proceedings and indeed leaves untouched (except for the fact that the determination at least resolves the question of the tourist facility aspect of the development) ultimately the true and proper categorisation of the proposed development.

18. In all of the circumstances, and notwithstanding the fact that the correspondence indicates that considerable effort and expense has been incurred in these interlocutory matters, ultimately they have been unavailing and ultimately unhelpful, and in my judgment, no order for costs should be made in respect of any of these rather inconclusive interlocutory manoeuvres including the hearing of the matters before me today.

19. The Applicant has himself contributed to the regretful inconclusiveness of the whole matter by failing to comply with the Registrar’s directions and by filing and serving the Motion earlier in the week which was withdrawn halfway through the week. That has contributed no doubt to expenses being incurred and it has not, in truth, contributed to the obtaining of a solution to the real dispute between the parties.

20. I think also the Applicant, notwithstanding the fact that from 24 October last year when he sought the Council’s consent as it were to redefine the proposed development so that it would fall within a permissible category of development (namely bed and breakfast establishment) in one sense has contributed to the confusion by the way in which he has propounded his development application with the supporting material which unmistakably described the development as a “tourist facility” and left up in the air whether any justification founded on “existing use” rights would be invoked.

21. It is unfortunate that the case has, as it were, gone off the rails so early in the piece and it is to be hoped that with what has been experienced thus far, the matter can now be dealt with more efficiently. Counsel for the Council has submitted that it must have the opportunity to raise any further preliminary question of law concerning the permissibility of the development proposed and its proper categorisation because it is bound by provisions of the Local Environmental Plan (to which I was not taken) to take certain procedural steps advising concurring authorities and the like even if the development is properly categorised as a “bed and breakfast establishment”, being a permissible form of development.

22. As I said I had invited the parties’ concurrence to giving some further directions in that matter, but those efforts have proved unsuccessful and of course it is open to either party to bring before the Court any appropriate Motion that they might be advised to take.

23. For all of the reasons, I answer the preliminary question of law in the manner I have propounded and I order that there be no order for costs in the proceedings. I also give the following directions—

Within 21 days, I direct the Applicant to serve with the Council’s Solicitors amended plans and particulars of the changes to the material lodged with the development application upon which the Applicant relies for categorising the proposed development as bed and breakfast facility and the Council to notify the Applicant within 14 days of receipt of that information of the grounds, if any, upon which it would object to or oppose such a categorisation of the development as a bed & breakfast establishment and why it would object to any amendment of the original application.