Paterson v Warringah Council

[2003] NSWLEC 25

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Land and Environment Court

of New South Wales

CITATION:	Paterson v Warringah Council [2003] NSWLEC 25
PARTIES:	APPLICANT: Paterson RESPONDENT: Warringah Council
FILE NUMBER(S):	10951 of 2001 and; (1)0391 of 2002
CORAM:	Bignold J
KEY ISSUES:	Costs :- costs in related class 1 proceedings involving the issue of two statutory planning enforcement orders-Parties having varying degrees of success in outcome of proceedings
LEGISLATION CITED:	Land and Environment Court Act 1979, s 69 Court's Practice Direction, par 10
CASES CITED:	Altomonte v Hunters Hill Council (2002) 120 LGERA 286
DATES OF HEARING:	02/12/02
EX TEMPORE JUDGMENT DATE :	12/02/2002
LEGAL REPRESENTATIVES:	APPLICANT: Dr I Paterson (Agent) SOLICITORS N/A RESPONDENT: Ms J Smith, Solicitor SOLICITORS Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10951 of 2001 and

(1) 0391 of 2002

Coram : Bignold J

2 December 2002

JOHN PATERSON

Applicant

v

WARRINGAH COUNCIL

Respondent

JUDGMENT

1. The Court has before it competing motions claiming costs in proceedings which were concluded by the delivery of judgment by Commissioner Brown on 3 September 2002 in related proceedings both involving the issue of an order pursuant to the Environmental Planning and Assessment Act 1979, s 121B in respect of premises known as No 6 Tanderra Place, Curl Curl, at the time owned by the Applicant who is a 90 year old pensioner who has lived in the premises for many years assisted by his carer, his son Dr Paterson and his family. Dr Paterson appeared as the authorised agent for his father in the proceedings and again appears before me today on the competing motions for costs.

2. The Council’s claim for costs is essentially on the basis of its assertion that it was the victor in the litigation and that the Court should exercise the discretion in relation to costs conformably to the Land And Environment Court Act 1979, s 69 and not by reference to the Court’s Practice Direction, par 10 in relation to costs which provides that costs are not ordinarily granted in planning or building appeals.

3. There has been some considerable divergence of opinion in the Court as reflected in the decisions as to whether an appeal against an order issued pursuant to the Environmental Planning and Assessment Act, s 121B is relevantly to be regarded as a “planning or building appeal”, for the purposes of the Court’s Practice Direction, par 10. The cases are collected in the recent decision of Justice Pain in Altomonte v Hunters Hill Council (2002) 120 LGERA 286. Her Honour there refers to a number of decisions of the Court in proceedings involving costs claims in relation to statutory enforcement orders issued pursuant to the Environmental Planning and Assessment Act, s 121B which are analogous to, although more extensive in scope, than orders for statutory enforcement issued under the Local Government Act 1993, s 124.

4. It appears that there is a preponderance of opinion in the Court that an appeal pursuant to the Environmental Planning and Assessment Act, s 121B is not relevantly to be regarded as a planning and building appeal although there are decisions in the Court to the contrary which have regarded the cases as falling within par 10 of the Court’s Practice Direction.

5. I will return to that matter presently but it is important to note at the outset the nature of the two related appeals brought by the Applicant against the Council’s orders, the circumstances in which the orders were granted and the outcome in the decision.

6. I have been assisted in this matter by the very lucid and succinct way in which the case has been presented by the Council’s Solicitor Ms Smith, and by Dr Paterson and I thank them for that assistance.

7. As I say the appeals are related, the first one was in relation to an order issued by the Council in October 2001. It required the removal from the aforesaid premises of a number of specified elements. These are detailed as items 1 to 5 as referred to in par 11 of the judgment of Commissioner Brown given on 3 September 2002 and I need not repeat them again here. However, I should note that in par 12 and par 13 of the Commissioner’s judgment, he explains what I have described in the course of argument as the “metamorphosis” of the order ultimately obtained. That order significantly reduced the list of items requiring removal from the premises from the 5 to 2.

8. In par 12 of his judgment the Commissioner indicates that at the commencement of the proceedings the Council amended the schedule of works by the deletion of items 3 and 4. In the course of argument, I enquired as to how this had happened and it appears that the Council did not exercise the statutory modification power conferred upon it by the Environmental Planning and Assessment Act which power requires the approval of the person to whom the order had been given but instead informed the Court that it did not press those matters in its order.

9. Ms Smith, on behalf of the Council, said that the metamorphosis in the order originally given by the Council containing five specific items and the order ultimately made by the Court containing but two and those two are expressed in a different language from the two in the original order (which they reflect) could be substantiated by the power of the Court conferred by the Environmental Planning and Assessment Act, 121ZK(4) which enabled the Court, inter alia, to revoke an order, to modify an order or to substitute for the order any other order that the person who gave the order could have made.

10. Significantly however, the Council had conducted the proceedings on the basis that item 2 of the original order remained pressed. That order in terms required:

the removal of all structural walls and other building works that had converted the sub floor area at the front of the building to habitable areas.

11. Dr Paterson on behalf of his father has informed the Court that it was that particular requirement that caused both his father and himself, as agent and carer, much distress and considerable concern because in terms it required the removal of all structural walls that had converted the subfloor area at the front of the building to habitable areas and it was his view (and I should add that Dr Paterson is a highly credentialed building architect having a doctorate of philosophy in that discipline) that compliance with that order would have imperilled the very existence of the entire building.

12. Ms Smith on behalf of the Council contended that that was not the way in which the item in the original order should be interpreted and she relied upon Dr Paterson’s professed and acknowledged expertise in this area. However, it must be remembered that the order was issued to Dr Paterson’s father, a ninety-year-old, and it perhaps is just fortuitous that Mr Paterson had the benefit of his son, as carer and agent, with his experience to advise and act for him. However, I am not impressed with the argument that item 2 was clear to all and sundry and did not require the removal of structural walls which would in fact support the entire building. In my view, in exercising the powers for statutory enforcement under the Environmental Planning and Assessment Act it behoves a consent authority to express itself with crystal clarity particularly in requiring mandatory works to be done to buildings, and on the competing argument I am entirely satisfied that Dr Paterson’s view of the original item 2 in the original order and the necessity to have that deleted was a reasonable and cogent understanding of that order. I also accept his submission that it was the existence of that requirement which in truth required him, on behalf of his father, to maintain a steadfast resistance to the statutory order.

13. In the circumstances where only at the end of a two day hearing did the Council finally concede that item 2 of the original order should not be pressed and settled upon a form of order which, albeit referring to the removal of a southern wall, identified in order 1 of the orders made by the Commissioner, nonetheless that wall, as Dr Paterson has pointed out, was not a structural wall. This metamorphosis in the statutory order did not vindicate the Council’s original order or render the order ultimately made a mere re-drafting of the original order. In my opinion, the Applicant was entirely justified in resisting the original order and in my view the deletion of that particular vexing provision, item 2, was ultimately the true stakes for the whole proceeding, and on that matter the Applicant was successful.

14. In these circumstances, I am of the view that the Council could not reasonably be regarded as being the successful party in the litigation such as would warrant any order for costs even if I were to adopt the view that seems to be emerging in the cases in this Court as to the disposition of the costs question arising in appeals against orders given pursuant to the Environmental Planning and Assessment Act, s 121B.

15. The other order was the order for the cessation of the use of the premises as three dwellings. It is true that the Council did succeed in that order but it is necessary to contextualise the place and significance of that order in the proceedings. It arose well after the appeal against the Council’s original works order had been filed in the Court and I think as I read the chronology of the history of the case in the Court the decision to link the two appeals in relation to the two statutory orders was only made fairly recently by Justice Talbot, the list judge.

16. I should say that the issue of the separate order requiring cessation of the use of the same premises as three separate dwellings arose in circumstances that caused the Council to move for the vacation of the original hearing date in relation to the works order statutory notice and in the meanwhile the Applicant had lodged a development application with the Council seeking approval for the continuance of the use of the premises as three separate dwellings. That application was refused by the Council and that was the situation when the appeal came on for hearing. In my view the appeal in relation to the cessation of use order though successful so far as the Council was concerned did not reflect any unreasonable conduct on the part of the Applicant. The Applicant had put in a development application and that had been refused. All this happened as I say late in the piece and I am satisfied that the litigation and the great bulk of the litigation was focussed upon the original order requiring the removal of a number of elements of the building itself and that the use order was almost an incidental postlude to that matter particularly after the development application was lodged and rejected by the Council.

17. In the circumstances, I would regard the second appeal as being of relatively minor or incidental importance in the totality of the litigation but nonetheless it is clear that the Council was successful in it. However, in view of my conclusion that the Applicant was essentially successful in relation to the statutory notice requiring works to be undertaken and that that litigation was the true focal point or centrepiece of the entire litigation, and certainly the main contributor to the incurring of costs in the proceedings, I am of the opinion that the success of the Applicant in that behalf cancels out the success of the Council in relation to the second order requiring the cessation of use of the premises as three separate residences.

18. In all of the circumstances, having regard to my analysis of the nature of the cases, their outcome and the circumstances in which the orders were issued, I am of the opinion that each party can justifiably claim a measure of success in the various parts of the litigation and that to recognise that measure of success in each of the parties is such as to warrant the order that in both proceedings each party bear its own costs.

19. For all the forgoing reasons, I order that in each of the two proceedings each party bear their own costs