Payten and Anor. v Canada Bay Council

[2003] NSWLEC 66

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Land and Environment Court

of New South Wales

CITATION:	Payten & Anor. v Canada Bay Council & Anor. [2003] NSWLEC 66
PARTIES:	APPLICANT: Payten & Anor. RESPONDENT: Canada Bay Council & Anor.
FILE NUMBER(S):	40162 of 2001
CORAM:	Bignold J
KEY ISSUES:	Costs :- in class 4 proceedings-discontinued without consent.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 104A Local Government Act 1993, s 114
CASES CITED:	Vanmeld v Fairfield City Council (1999) 46 NSWLR 78; Re The Minister for Immigration Ex Parte Lai Qin (1997) 186 CLR 622
DATES OF HEARING:	03/07/2002
EX TEMPORE JUDGMENT DATE :	07/03/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Burrell, Solicitor SOLICITORS Burrell FIRST RESPONDENT Ms L Finn, Solicitor SOLICITORS Abbott Tout

JUDGMENT:

1. This is an application by the Canada Bay Council, the first Respondent in class 4 proceedings, which were concluded by the Applicant filing a Notice of Discontinuance on 4 April 2002 without the consent of the Council. The Council’s application is that the Applicant pay the Council’s costs in the proceedings and the costs on the Motion.

2. The matter has been argued today before me with the Solicitor for the Applicant submitting that in the circumstances of this case there should be no order as to costs in the proceedings in favour of the Council.

3. The proceedings involved a class 4 application for declaratory and injunctive relief in respect of second storey additions to an existing dwelling situated at 58 Burns Crescent, Chiswick. The application was filed on 4 September 2001. It claimed a declaration that the development application was invalid. It also claimed an injunction restraining the second Respondent, being the owner of the aforesaid premises from carrying out building works pursuant to the development consent. There was also a claim upon filing the class 4 application for an interlocutory injunction but that claim to relief was not pressed. However, on 20 December 2001, the Applicant sought an urgent interlocutory injunction restraining the Council from issuing a certificate of occupancy in respect of the said building work. That application was resisted by both Respondents and in an extempore judgement I dismissed the application for that interlocutory relief. Thereafter, the matter proceeded to a number of callovers when directions were given of the final hearing of the case and on 1 February 2002, hearing dates were allocated for the final hearing on 17 and 18 April 2002. As noted earlier on 9 April, Notice of Discontinuance was filed by the Applicant just over a week before the commencement of the allocated hearing. On 14 May 2002, the Court made an order by consent that the Applicant pay the second Respondent’s costs in the agreed sum of $5,000.00. The Council’s Motion claiming costs was filed on 16 April 2002.

4. The Applicant’s Solicitor has informed the Court from the bar table and the Council’s Solicitor accepts that this is the fact, that the Applicant entered into a contract to sell his property shortly prior to the allocated hearing dates and it was in these circumstances that the Applicant filed the Notice of Discontinuance on 9 April 2002.

5. In support of his submission that there should be no order as to costs, the Solicitor for the Applicant has taken me to the Points of Claim and Points of Defence in their amended form that were filed in the proceedings and has also taken me to the affidavit evidence filed in the case. Reference to these materials was resisted and objected to by the Council on the grounds that such recourse to the filed evidence would be irrelevant to the determination of the disputed costs question, and subject to her objection, I allowed the Applicant to take me to the detailed pleadings and to the evidence filed in the case. I should note, in respect of the affidavit evidence filed, that the Applicant’s case was supported by a number of affidavits not only by himself but by a town planner and by a number of local residents living nearby the Applicant’s premises in Eaton Place, Chiswick. The local residents depose to the reception or non-reception by them of a local paper called the District News. It seems from that evidence that the five or six deponents living in Eaton Place, Chiswick, received that particular local paper throughout 1997 on an irregular basis, not because the paper was published irregularly but apparently they received it irregularly for reasons which have not been explained in the evidence.

6. The affidavit of the Applicant indicates that he purchased the property, 7 Eaton Place, Chiswick, in 1994, leased it out for 12 months and took up residence with his family in April 1995. His evidence is that he was not notified by the Council of the development application and the building application made by or on behalf of the second Respondent in respect of the premises, 58 Burns Crescent, Chiswick, during 1997, and that he only became aware of development activity being undertaken on those premises in May 2001, whereupon he engaged lawyers and planners and others to make representations to the Council and to the builder. These representations having failed, he instructed his present Solicitor in August 2001 to commence the proceedings which, as I earlier noted, were filed on 4 September 2001.

7. By the Amended Points of Claim and Amended Class 4 Application, the original claims to declaratory relief contained in the proceedings have been expanded to include not only the development consent that was granted by the Council in 1997 in respect of the second storey addition to 58 Burns Crescent, Chiswick, but also the building approval also granted in 1997, for the same work, the development consent having been granted by the Council on 1 July, 1997, and the building approval having been granted by the Council on 30 September 1997.

8. The Applicant’s basis for these claims to declaratory and injunctive relief is founded upon the assertion that the Council failed to give notice to the Applicant of the development application and the building application made to the Council in 1997 and that, as a result of that failure, the subsequent development consent and building approval were consequently invalid and of no effect.

9. The Applicant’s claim to be entitled to notice of the development application is shakily based in the evidence and comprises a conversation that the consultant planner engaged by the Applicant had with a planning officer of the Council. At its highest, the evidence establishes that the Council had some practice or policy of notifying persons apt to be disadvantageously affected, or detrimentally affected, by the development proposed to be carried out if approved but the content of the conversation attributed to the Council’s planner also included a statement that the matter was left to the Council’s planner’s discretion as to whether notification should be given in any given case. As I say, that is a very insubstantial foundation and source of obligation to be notified.

10. The source of obligation in relation to the building application is on surer ground when it refers to the provisions of s 114 and subsequent sections of the Local Government Act, 1993, as relevantly in force when the building approval was granted in 1997. Subsection (1) of s 114 requires the Council to give notice of an application for approval to erect a building to the persons “who appear to the Council to own the land adjoining the land to which the application applies if, in the Council’s opinion, the enjoyment of the adjoining land may be detrimentally affected by the proposed building after its erection”.

11. Another source of obligation referred to by the Applicant in the argument today is the Drummoyne Local Approvals Policy 1996 which took effect from 30 October 1996, the aims of which are stated in cl 2 as to—

achieve a balance between the right to reasonably develop a site whilst maintaining the right to aural and visual privacy, views, sunlight and amenity of adjoining neighbours by setting out procedures for determining who and under what circumstances persons are to be notified and (b) giving written notice accompanied by a plan showing the height and external configuration of the buildings.

12. Clause 3 of the Approvals Policy deals with the question of which persons are to be notified and provides that—

notice in writing shall be forwarded to (a) owners and occupiers of adjoining and nearby land if, in the opinion of the Council, or its officer or officers having the delegated authority to determine the application, the enjoyment of the adjoining land may be detrimentally affected by the proposed building after its construction.

13. Founding himself on these obligations, the Applicant’s case was that the development consent granted in 1997 and the building approval granted a little later in 1997, were both a void because the Applicant was not relevantly notified. The Applicant’s property is not an adjoining property but it certainly would be a nearby property within the meaning of the Notification Policy and probably would be held to be an “adjoining property” within the meaning of the Local Government Act, s 114 as in force during 1997.

14. The Council’s Points of Defence put in issue the question whether the Council was under any obligation to notify the development application to the Applicant and also whether it was under any relevant obligation to notify the Applicant in respect of the building application.

15. In relation to the obligation under the Local Government Act 1993, s 114 the Council, in its points of defence, says that the Council’s officer was in possession of relevant discretion and it was properly exercised in the case. Thus a crucial issue would have arisen had the case been litigated as to whether the Applicant could have established a relevant obligation on the part of the Council to notify him of both the development application and the building application.

16. The Council raised two other matters of considerable significance in its defence. Firstly, it pleaded the Environmental Planning and Assessment Act, s 104A as in force in 1997, as precluding challenge to the development consent. s 104A, as then in force, was in these terms—

In the event that public notice of the granting of a consent is given in accordance with the regulations by a consent authority, the validity of the consent shall not be questioned in any legal proceedings except those commenced in the Court by that person at any time before the expiration of three months from the date on which public notice was given.

17. According to the pleadings it is an agreed fact that public notice pursuant to s104A was given in the local paper that I have earlier referred to in 1997, after the grant of the development application. The issue thus raised concerns the question whether the public notification or notice was given in accordance with the Regulations. Clause 81 of the Regulation made under the Act, as then in force required, provided—

The granting of a development consent is publicly notified for the purposes of section 104A of the Act, (a) if public notice in a local newspaper is given by the consent authority and the notice describes the land and the notice contains a statement that consent is available for inspection.

18. The issue raised by the Applicant in reliance upon the affidavit evidence of the six or seven residents of Eaton Place, Chiswick, as to the infrequency or irregularity with which they receive the relevant local paper is relied upon by the Applicant to resist the Council’s defence based upon section 104A. The issue is a narrow one and comes down to the question as to whether the relevant public notice was given in a local newspaper. “Local newspaper” is defined as meaning a newspaper circulating throughout the relevant area at intervals of not more than two weeks. If this issue had been litigated, in my view the evidence relied upon by the Applicant, that is, the evidence of the residents of Eaton Place including the Applicant himself as to the infrequency with which they received the relevant local newspaper would not, in my opinion, have established that the notice pursuant to section 104A had not been made in accordance with the Regulation. The fact that the paper was received but irregularly by those deponents of the six or so properties in Eaton Place falls very far short in my judgment of establishing that the relevant paper did not constitute a “local newspaper” within the meaning of cl 81 of the Regulation. The foregoing analysis means that if the matter had been litigated the Council’s defence based upon section the Environmental Planning and Assessment Act, s 104A would, in my view, have presented an almost insuperable bar to the Applicant succeeding in his challenge to the development consent, it being noted that the proceedings were commenced more than four years after the expiry of the statutory three month period.

19. The Applicant has submitted that the Council could not have relied upon the defence based upon the Environmental Planning and Assessment Act, s 104A because of the decision of the Court of Appeal in Vanmeld v Fairfield City Council (1999) 46 NSWLR 78. The Applicant admitted that that case was authority for the proposition that the section would not preclude a breach of the rules of procedural fairness. In my view, the decision does not establish that proposition although it is true that in his dissenting judgment, the Chief Justice does deal with that subject extensively. Nonetheless, the decision itself does not support the Applicant’s argument or the proposition advanced in the present case.

20. Moreover, I have already referred to the insubstantial source of obligation as to notifying the receipt of development applications by the Council and the difficulty confronting the Applicant of establishing the existence of such a source of obligation is considerable and unless the obligation could be established then the argument at s 104A did not avail in a situation where there had been a denial of procedural fairness would not even have got off the ground. In my view s 104A defence of the Council was a matter of substance and had the matter been litigated, would in all probability have been totally effective to exclude the challenge to the validity of the development consent.

21. This would have left the Applicant with a case challenging the concurrent or collateral building approval for the same development with the difficulties again of establishing a breach of the statutory obligation that I have earlier identified in the Local Government Act, s 114 and the 1996 Council Notification Policy, inasmuch as each of those obligations involves the exercise of a discretionary judgment on the part of the Council or the Council’s officers and the issue before the Court would have been whether the Applicant had established a relevant miscarriage of that discretion. Further difficulty confronting the Applicant would have been to challenge the building approval in a situation when the supporting development consent was, for the reasons given concerning the effect of s 104A in this case, unchallengeable. It would have been highly unlikely, in those circumstances, with the development consent being unchallengeable for the supporting building approval to have been declared invalid, even if the Applicant’s claim had been substantiated.

22. Finally, the Council’s filed Points of Defence raise the question of discretion as to the grant of any relief, either declaratory or injunctive, in the situation of this case where by the time the hearing would have come on, the development approved by the Council for 58 Burns Crescent, Chiswick, would have already been completed. In this respect, I refer to the affidavit of the second Respondent sworn in January 2002 which deposes to the fact that 90 percent of the work was complete at that stage and he, being a builder, estimated that he had spent $100,000 on the work and the cost of demolishing the renovations and restoring the existing house to what it was (he estimated at some quarter of a million dollars). I should also note that when the proceedings were commenced in September last year the new building work was well advanced, and by the time the matter came before me on 20 December for the only claim to interlocutory relief pressed by the Applicant, the building was at that stage nearly completed and the only relief claimed on that occasion, it is to be recalled, was to restrain the Council from issuing a certificate of occupation.

23. Having traversed the pleadings and the evidence, I return to the question posed by the submission made on behalf of the Applicant, namely, should the Court adjudge, in these circumstances, that there should be no order as to costs because the Court has not adjudicated the dispute on the merits because of the belated discontinuance a week or so before the allocated hearing dates, in circumstances where the Court could not conclude, in the absence of a merits hearing, as to who would be the victor in the litigation and where it is satisfied that the parties’ conduct in commencing and prosecuting and defending the proceedings was, in all respects, reasonable. These are the principles found in the judgment of McHugh J, sitting singly in the High Court of Australia in Re The Minister for Immigration Ex Parte Lai Qin (1997) 186 CLR 622 at 624/625 which have often been applied in this Court in subsequent decisions.

24. However, in the case of discontinuance of the proceedings different considerations from those expounded in Lai Qin in my view, apply. Here the Council had been involved in the litigation from the commencement, it had actively participated both at the interlocutory hearing where relief was claimed against it and was prepared to defend the final hearing upon the basis that I have earlier outlined. In my view, the Applicant discontinuing the proceedings in the circumstances as I have outlined, ought to pay the Council’s costs in consequence of the belated discontinuance.

25. Moreover, even if the principles in Lai Qin were applicable, I am by no means satisfied that the Applicant’s behaviour throughout the litigation was relevantly reasonable. The original proceedings only claimed to impugn the development consent and for the reasons that I have stated concerning the development consent and building approval, the development consent was seemingly in an impregnable position. In the amended proceedings, the claims to relief were extended to include the building approval. The Applicant pursued what appeared to be a self-evidently hopeless case for interlocutory relief before me on 20 December and, nonetheless, pressed on with the case right up until eight or nine days before the allocated hearing dates with the Council incurring costs in putting on Points of Defence to the Applicant’s further amended class 4 application. In Lai Qin, McHugh J recognised that in rare cases the Court could reach a view that a case was either bound to succeed or bound to fail and in those rare cases, even though the matter had not proceeded to a final hearing on the merits, the Court might adjudge a party to be liable for costs. In my view, the present case is such a case. For the reasons that I have earlier given, it is more probable than not that the case would have failed and failed utterly.

26. For all the foregoing reasons, I order the Applicant to pay the Council’s costs in the proceedings, thrown away in consequence of the notice of discontinuance of the proceedings being filed on 9 April 2002 without the Council’s consent and additionally the Council’s costs on the hearing of this Motion today—in both cases in the sum agreed, or failing agreement, as assessed.