Refalo v Liverpool City Council

[2025] NSWLEC 108

Land and Environment Court

New South Wales

Medium Neutral Citation:

Refalo v Liverpool City Council [2025] NSWLEC 108

Hearing dates:

26 August 2025

Date of orders:

25 September 2025

Decision date:

25 September 2025

Jurisdiction:

Class 1

Before:

Pain J

Decision:

In matter 2024/00163113:

(1)   The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed.

(2)   Each party to pay their own costs of the notice of motion dated 30 April 2025.

In matter 2024/00163114:

(1)   The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed.

(2)   Each party to pay their own costs of the notice of motion dated 30 April 2025.

Catchwords:

COSTS – Class 1 appeals of development control orders settled without need for final court determination – development control order issued to stop use of land used for lettuce farming for over thirty years - application for costs by applicants – whether fair and reasonable to order costs - whether local council acted unreasonably in not responding to urgent requests to advise whether any outstanding issues in light of agreement of experts – failing to provide approval documents vital to applicants’ case which local council held – statement of facts and contentions failed to properly identify why the development the subject of the development control orders was unlawful – no prospects of success in relation to portable dwellings as these were not buildings – notice of motion dismissed

Legislation Cited:

Copyright Act 1968 (Cth), s 43

Environmental Planning and Assessment Act 1979 (NSW), ss 8.18, 9.34, Sch 5 Pt 1

Government Information (Public Access) Act 2009 (NSW)

Land and Environment Court Rules 2007 (NSW), r 3.7

Liverpool Local Environmental Plan 1997 (NSW)

Cases Cited:

Coolah Holdings Pty Ltd v Eurobodalla Shire Council (No 2) [2012] NSWLEC 84

Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84

Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299

Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300

Texts Cited:

Land and Environment Court, Classes 1, 2 & 3 Miscellaneous Appeals Practice Note (3 April 2018)

Category:

Costs

Parties:

David Refalo (First Applicant)
Jannie Refalo (Second Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Stafford (First and Second Applicants)
M Harker (Respondent)

Solicitors:
Beatty Hughes and Associates (First and Second Applicants)
Liverpool City Council (Respondent)

File Number(s):

2024/00163113
2024/00163114

Publication restriction:

Nil

JUDGMENT

1. The Applicants run a lettuce-growing business in Kemps Creek. That business relevantly traverses two sites, 90 Racemosa Close (90 Racemosa) and 65 Brenda Avenue (65 Brenda). The lettuce growing business commenced on 90 Racemosa in 1998. The business expanded onto 65 Brenda from 2010.

2. Two development control orders (DCOs) were issued by Liverpool City Council (the Council), one for each lot where the Applicants grow lettuce commercially. The development targeted by the DCOs, in addition to the activity of growing lettuce, included:

1. one dwelling of the dual occupancy on 65 Brenda, highlighted in green on Attachment A to the DCO for 65 Brenda, which was built before the Applicants purchased 65 Brenda and was also occupied by the current tenant before they purchased the premises in 2019 (Christina’s Home);

2. a moveable dwelling on 65 Brenda, highlighted in red on Attachment A to the DCO for 65 Brenda, placed on the site of a former pool cabana in 2011 (Ross’ Home);

3. another moveable dwelling on 65 Brenda, highlighted on Attachment A to the DCO for 65 Brenda, in place since 2011 and which was occupied by farm workers at the time the Orders were issued (Rural Workers’ Dwelling); and

4. a moveable dwelling on 90 Racemosa, in place since 2008, outlined on Attachment A to the DCO for 90 Racemosa (Troy’s Home).

3. The Applicants appealed under s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking orders revoking the two DCOs purportedly issued under s 9.34 and Part 1 of Schedule 5 to the EPA Act by the Council, being:

1. a Stop Use Order and Demolish Works Order ‘No-115/2024’ in relation to 65 Brenda (the subject of proceedings 2024/163113); and

2. a Stop Use Order and Demolish Works Order ‘No-116/2024’ in relation to 90 Racemosa (the subject of proceedings 2024/163114).

4. The appeal proceedings were settled on the second day of hearing. The Applicants by notices of motion dated 30 April 2025 seek their costs of the resolved two Class 1 proceedings.

5. The presumptive rule in Class 1 proceedings that there be no order as to costs is the context for an evaluation conferring a broad discretion to determine whether costs are fair and reasonable; Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 at [48], [50] (Sansom). Rule 3.7 applies to all proceedings in Class 1 of the Court’s jurisdiction; r 3.7(1)(a). Rule 3.7(2) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) states:

(2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

6. The Applicants bear the onus of persuading the Court that an order is fair and reasonable; Coolah Holdings Pty Ltd v Eurobodalla Shire Council (No 2) [2012] NSWLEC 84 at [43].

7. As also identified in Sansom at [67] merit matters encompass a variety of cases. A distinction should be drawn between those commencing an appeal of a development consent refusal with a citizen resisting the imposition of a liability under threat of criminal sanction as is the case for the Applicants; see also Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300 at [73], [75].

8. Unlike an appeal of a development application which is essentially a voluntary decision of an applicant seeking the benefit of a development consent, unless the Applicants commenced their appeals, the two DCOs stopped their longstanding lettuce growing business on two separate blocks. The Applicants also had long standing tenants on their lots who lost their homes if the DCOs were in effect. It is fair to state that the Applicants had to appeal the DCOs out of commercial and personal necessity in these circumstances.

9. Where proceedings have settled without a hearing on the merits, and the parties have acted reasonably, the proper exercise of discretion will usually be that the parties bear their own costs: Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 at [30]. A court should not engage in a hypothetical trial to determine what the outcome would likely have been in order to determine costs: Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 at 624-5; [1997] HCA 6.

10. The Applicants rely on subrule 3.7(3) of the LEC Rules, in particular:

(3)  Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:

…

(c)  that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,

(d)  that a party has acted unreasonably in the conduct of the proceedings,

…

(f)  that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:

(i)  the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii)  to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

Chronology

11. The agreed chronology provided by the parties was lengthier than that set out below. It identified all communications between the parties from 2 May 2024 to 1 April 2025 in the context of the notice of intention to issue a DCO dated 17 October 2023 and the issuing of the DCOs on 4 April 2024. Part of that chronology included lengthy communications concerning requests made by the Applicants’ solicitors under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to the Council from 18 October 2023 to 2 May 2024.

12. As I identify below in relation to ground 5 while the written submissions set out the events in relation to the GIPA Act in great detail and appeared to be intended to support a submission of unreasonable behavior by the Council leading up to the commencement of these proceedings, in oral submissions that focus was changed appropriately to letters sent after the two appeals were commenced.

13. Notices of intention to issue the DCOs dated 28 February 2024 were sent to the Applicants. The DCOs were issued on 4 April 2024.

14. These appeals were commenced on 2 May 2024. The Applicants made a further application to access documents under the GIPA Act. This time the Applicants, by email dated 3 May 2024, sought to have the various approved plans produced under the exemption provided in s 43 of the Copyright Act 1968 (Cth) for ‘judicial proceedings’ and the Council confirmed on the same day that the plans would now be included in any schedule.

15. On 9 May 2024 the Applicants requested the Council not to take any further enforcement or compliance action in respect of the DCOs while the proceedings remained on foot.

16. On 29 May 2024 the Applicants’ solicitors wrote to the Council’s solicitor and asked that all relevant documents be produced pursuant to paragraph 15 of the Court’s Classes 1, 2 & 3 Miscellaneous Appeals Practice Note (Practice Note). In that letter, the Applicants’ solicitors sought ‘development applications, building permits, construction permits, or any other kind of development approval applicable to the land the subject of the Notices’.

17. On 30 May 2024 the Council’s Statements of Facts and Contentions (SOFCs) was filed.

18. On 12 June 2024 the Council produced to the Applicants information relating to the DCOs, which did not include at this stage any development approval files or documents (such as those referred to in the SOFCs).

19. On 13 June 2024 the Council undertook not to take any further enforcement or compliance action in respect of the DCOs while the proceedings remained on foot.

20. On 17 June 2024 the Council’s Access to Information Officer (Officer) made a decision on the GIPA Act application and identified 45 documents in the schedule to its decision. The decision recorded that the ‘Council is unable to reproduce the documents you have requested without the express written permission of the copyright owner. A viewing is available by appointment to note the numerous copyright holders’.

21. In the Officer’s reasons “Balancing the Public Interest Test” it was recorded that the officer ‘decided to provide access Both [sic] in a redacted format of some documents and in a view only format of information that holds copyright’.

22. Under ‘Access’ the Officer recorded ‘Access will be provided by an agreed appointment for view only. As discussed, there is an overriding public interest against disclosure of the material’.

23. On 18 June 2024 the Applicants’ solicitors contacted the Officer regarding the withheld plans, noting that it was not the fair use exemption for legal advice that would be relied on to obtain copies of the plans, but the litigation exemption (the Council was a party to the relevant litigation).

24. On 18 June 2024 the Applicants’ solicitors emailed the Council’s solicitor in these proceedings referring to the Applicants’ earlier request for documents under the Practice Note. The correspondence referred to the approvals identified in the Council’s SOFCs and stated relevantly:

We request copies of all development approvals, and permits applicable to 90 Racemosa Close and 65 Brenda Avenue, including all plans, assessment reports and supporting documentation that comprise such development approvals and permits.

25. On 21 June 2024 the Council produced further documents in response to the request to produce documents under the Practice Note, but said it was still waiting on 3 files that were in the Council’s archives. Included with the documents produced was a document entitled ‘Explanatory Notes’, which stated (Explanatory Notes):

We have not been able to locate any record of the following:

For 90 Racemosa Close, Kemps Creek, Record Numbers:

DA-223/1985

B-748/1985

T-60/1998

A-1868/1999

S-43/2000

A-1663/2000 & W-1663/2000

For 65 Brenda Avenue, Kemps Creek, Record Numbers:

BA-577/63

BA-1443/80

BA-49/82

BA-3583/96

26. On 28 June 2024 three further documents were produced to the Applicants by the Council from the Council’s archives. The documents produced across 21 and 28 June included plans for some but not all of the above ‘approvals’.

27. On 1 July 2024 the Applicants filed their two Statements of Facts and Contentions in Reply (SOFCRs). The Applicants asserted in SOFCRs that there was still a shortfall in the documents that had been produced and in their contentions the portable dwellings were not buildings.

28. On 29 July 2024, 20 August 2024, 10 September 2024, 25 September 2024, 3 October 2024 and 18 October 2024 the parties participated in a conciliation conference.

29. On about 24 October 2024 water engineers for the Council (Mr Haigh) and Applicants (Mr Norris) had a discussion the outcome of which was recorded by Mr Haigh:

Mr Norris was going to go through and respond to all comments recommendations made by Council and then proceed to amend and add additional information to the two reports outstanding for health

30. On 21 February 2025 the Applicants’ solicitors wrote to the Council as follows:

We note that the Proceedings are listed for a four day hearing on 1-4 April 2025 and that the parties respective experts are to file joint expert reports by 5 March 2025.

At issue are orders requiring the closing down of lettuce growing operations that commenced in 1997 and demolition orders requiring the eviction of a family, a farm worker and a tenant from homes they have lived in for up to 30 years.

The Class 1 proceedings will be lengthy, expensive, and will likely require numerous current and prior Council officers to be called for cross examination

…

There are no merit reasons for the position taken by Council.

In so far as the “discretionary” reasons for the issue of the orders (for demolition of the dwellings and crops) are concerned (being the matters that are to be the subject of the joint expert reports):

It is our understanding that the “environmental harm” issues identified in Council’s Statement of Facts and Contentions (filed 30 May 2024)… have been (or are readily capable of being) resolved between the experts by the carrying out of identified stormwater and wastewater system upgrades and compliance with an Operational Environmental Management plan (OEMP). The stormwater and waste water upgrades and terms of the OEMP have been documented in reports prepared by Martens & Associates and provided in draft to Council (Martens Reports) (on a without prejudice basis). We are advised by Mr Norris… that your Mr Haigh’s “outstanding concerns” as at October 2024 are now fully addressed in a penultimate version of the two reports prepared by Martens & Associates following his return from leave.

In relation to the suitability of the dwellings (dual occupancy, secondary dwelling and two rural workers cottages) on the properties, this is addressed by the building survey report prepared by Mr Keato (of AE&D Pty Ltd) (and provided to Council on a without prejudice basis). It is our understanding that Council’s only reservations in so far as the dwellings are concerned are due to an unwillingness to accept the evidence documented in detail by our client’s very experienced and qualified expert in his report.

Accordingly, we are unclear what matters of substance could still be in issue between the experts. …

31. On 27 February 2025 the water engineers made first contact after their conversation on 24 October 2024.

32. On 10 March 2025 a joint expert report of the water engineers was filed (Water JER). Mr Norris (an engineer and environmental scientist engaged by the Applicants) and Mr Haigh (an environmental health officer engaged by the Council), in the Water JER filed 10 March 2025 concluded that subject to:

1. the completion of, relevantly, works detailed in the Water Management Report and Wastewater Management Report prepared by Mr Norris, and

2. the implementation of the Applicants’ operations environment management plan,

neither the site hydroponics operations nor the dwellings would pose a significant risk of harm to site occupants or the environment. They said that this resolved the contentions in the proceedings insofar as they relate to water management, wastewater management and sewage management.

33. On 13 March 2025 the solicitor with carriage for the Council went on leave.

34. On 14 March 2025 the Applicants’ solicitors wrote to the Council:

As you will be aware, Mr Haigh and Mr Norris have reached complete agreement on the water and wastewater issues raised by Council.

It is unclear to us on what basis Council would wish to agitate these issues further. Accordingly, can you please advise whether:

Council would not agree to settle this aspect of the proceedings so that the parties are not put to the cost of preparing to deal with these issues in submissions or requiring their experts to attend the Council; and

If Council is not prepared to settle this aspect of the proceedings, the basis on which Council intends to further agitate these issues so that the parties may prepare accordingly.

35. On 14 March 2025 an officer for the Council wrote to the Applicants’ solicitors indicating that the Council would action their email from earlier that day as soon as possible the following week.

36. On 17 March 2025 counsel for the Council commenced a 10-day hearing ending on 28 March 2025.

37. On 18 March 2025 the solicitor with carriage for the Council returned from leave.

38. On 19 March 2025 a building code joint report was filed (with cover sheet dated 17 March 2025). Mr Keato (engaged by the Applicants) and Mr Bennett (engaged by the Council), engaged as building code and fire safety experts, were asked to address Contention 1(d) of the 65 Brenda SOFC and Contention 2(c) of the 90 Racemosa SOFC. In their joint expert report of 17 March 2025, their opinion was that confirmation should be given that the smoke alarms had been hard wired and interconnected, and that the garden sheds next to Ross’ Home and Troy’s Home would be moved to meet fire separation requirements.

39. On 19 March 2025 the Applicants’ solicitors wrote to the Council:

We refer to the JER prepared by Mr Keato and Mr Bennett…

You will note that, as with the JER prepared by Mr Norris and Mr Haigh, the parties’ experts are in complete agreement.

Can you please, as a matter of urgency, indicate to us which matters remain in dispute between the parties - at least regarding wastewater and dwelling aspects of the case.

40. On 24 March 2025 the Applicants’ solicitors sent a without prejudice email to the Council offering to discontinue the proceedings if the DCOs were withdrawn and the Council paid the Applicants’ costs.

41. On about 24 March 2025 the Council officer with delegation commenced leave and returned on 26 March 2025.

42. On 25 March 2025 the Council requested written advice from counsel about its prospects, and the means to secure compliance with the agreements of the experts. That counsel was in a 10-day hearing from 17 to 28 March 2025.

43. On 26 March 2025 an officer of the Council responded that it was seeking instructions on the without prejudice offer and said:

We are seeking instructions in respect of the offer. Any resolution will be a result of agreements between the experts. That does not provide a basis for costs.

It appears to us (and subject to instructions) that given the agreements between the experts, the matter can be resolved subject to a means by which the Council can be assured that your client does the things that the experts agree are required. That could be by way of s 34 agreement.

We will revert to you as soon as possible.

44. The Applicants’ solicitors responded to this email that day:

Noting that you are seeking instructions – in the absence of any formal agreement or counteroffer our clients are incurring, and will continue to incur, significant costs in preparing for the hearing.

While our clients are open to considering a resolution of the proceedings, they would need to understand the exact terms that Council are considering and any resolution would need to properly recognise the expense to which they have been put in bringing these proceedings and having to prepare for a hearing.

Can you please let us know when you are likely to receive instructions as a matter of urgency?

45. An officer of the Council responded again that day:

I should have instructions by tomorrow morning 27 March 2025.

46. On 28 March 2025 the Council’s counsel concluded a 10-day hearing.

47. On the morning of 31 March 2025 the Council received advice from counsel.

48. The first day of the appeals hearing was 1 April 2025.

Evidence

49. The Applicants read an affidavit of Mr Wisken’s solicitor affirmed 30 April 2025 which set out steps taken leading up to the commencement of the two Class 1 appeals and efforts made to obtain documents from the Council under the GIPA Act.

50. The Respondent relied on an affidavit of Mr Garcia solicitor sworn 20 June 2025 which identified the various offers made by the Applicants including the email from Mr Wisken sent on 14 March 2025. As Mr Garcia was on holiday until 17 March 2025 and had other work on his return to the office he was not sure when he read that email. Another email dated 24 March 2025 was sent as above in [40]. The offer did not address the Applicants doing the work identified as necessary by the experts. Steps were taken internally in the Council to respond to the email dated 24 March 2025 including obtaining counsel’s advice. Mr Wisken considered the 24 March 2025 letter replaced the offer in the 14 March 2025 letter. Counsel’s advice was provided on 31 March 2025 due to their other commitments.

51. The Council read a second affidavit of Mr Garcia sworn 25 August 2025. It identified that 83 documents including development approvals and permits were produced by the Council to the Applicants on 21 and 28 June 2024. The affidavit referred expressly to two sets of documents for 90 Racemosa and three sets of documents for 65 Brenda. The affidavit stated that the Explanatory Notes provided by the Council on 21 June 2024 inadvertently stated that documents specified in it by record number were not able to be located. In fact some of these documents were produced to the Applicants. The Council’s solicitor could not locate one record for 65 Brenda being an application for an extension to an existing dwelling. That approval was provided separately under the GIPA Act request.

Applicants’ case

52. The Applicants relied on five grounds in support of their application for costs on the basis that the Council had behaved unreasonably leading up to the commencement of proceedings and during the proceedings and commenced and continued a claim which did not have reasonable prospects of success. Their primary ground was ground 4. Grounds 1 and 5 are related.

Ground 4: No merit issues between the parties after joint expert reports served but the Council waited until hearing to withdraw the DCOs

53. Ground 4 asserted that there were no merit issues between the parties after joint expert reports were served but the Council waited until the hearing to withdraw the DCOs. This was despite the Applicants’ solicitors making several enquiries to the Council about whether the Council was prepared to settle those aspects of the proceedings. Particular reliance was placed on letters sent by the Applicants’ solicitors to the Council’s solicitor dated 14 March and 19 March 2025, set out above in the chronology. The Applicants submitted this conduct was unreasonable.

54. The Council submitted that until the Applicants indicated a commitment to carry out the works agreed by the experts there remained merit issues between the parties. The Applicants delayed in making that commitment (and in expressing even a willingness to do those works) until part-way through the hearing. Once done, the proceedings were then quickly resolved. No unreasonable behaviour on the Council’s part arose in these circumstances.

Finding on ground 4

55. In assessing ground 4 the overall context for the proceedings must be considered, beyond the 14 March (a Friday) and 19 March (the following Wednesday) letters from the Applicants’ solicitor. As identified in the chronology the proceedings commenced on 2 May 2024. A conciliation conference was held on multiple occasions on 29 July, 20 August, 10 September, 25 September, 3 October and 18 October 2024. No agreement was reached. The water engineers continued to talk. The water engineers engaged in joint reporting which was finalised in a report dated 10 March 2025. The experts concurred that provided agreed work was carried out the growing operations did not pose a significant risk of harm to the environment.

56. The fire safety experts also reached agreement on 19 March 2025 that provided action was undertaken their concerns could be addressed. The proceedings must be considered as a whole in assessing the alleged unreasonableness of the Council in not responding substantively to two letters sent to the Council within two weeks of the final hearing. That the Applicants consider there should have been a prompt response by the Council in the limited time before the hearing does not mean that the Council’s behaviour was unreasonable. The Council’s solicitor’s second affidavit identified the processes required to be undertaken in the Council in relation to getting agreement to settle and there was not enough time to complete these before the hearing. The text of the letters did not state that the Applicants were prepared to undertake the work identified by the experts as the Council submitted.

57. When all the matters referred to above are considered the Applicants have not established that the Council’s behaviour was unreasonable in ground 4.

Ground 1: The Council pleaded documents to assert illegality that it had not been able to find

58. Ground 1 asserted that the Council pleaded documents to assert illegality that it had not been able to find (noting that a statement of facts and contention is not strictly a pleading). In its two SOFCs, the Council referred to a number of documents to assert illegality of development the subject of the DCOs that it later revealed it did not actually have and so could not have reviewed for the purpose of preparing the SOFCs.

59. At paragraphs [24] to [27] of Part A of its SOFC for 65 Brenda dated 30 May 2024 and paragraphs [19] to [25] of Part A of its SOFC for 90 Racemosa dated the same, the Council identified a number of approvals that were said to apply to those premises. The Council then proceeded to assert:

1. in paragraph [28] of Part A of its SOFC for 65 Brenda, that the Council had no record of a development consent being issued for ‘the conversion of the double garage to a habitable dwelling with the addition of the “lean-to,” the instillation (sic) of the portable dwelling structure for use as a rural workers’ dwelling, or the conversion of the outbuilding into a habitable dwelling’; and

2. in paragraph [26] of Part A of its SOFC for 90 Racemosa, that the Council had no record of a development consent being issued for ‘the unauthorised portable accommodation, the agriculture protection netting and the raised hydroponic farm pads for use of the Premises for intensive plant agriculture’.

60. On 21 June 2024, in response to a request by the Applicants’ solicitors that the Council produce documents relevant to the appeal, including approvals and plans, pursuant to paragraph 15 of the Practice Note, the Council provided the Explanatory Notes to the Applicants’ solicitors, set out above in [25].

61. Mr Garcia’s very recent affidavit identified for the first time that the Explanatory Notes provided by the Council were admitted by the Council to be incorrect. The Applicants were aware that they were not entirely correct in that they had been provided with some of the documents referred to in them however they had not been provided with copies of all the specified documents. They submitted that out of 19 decisions information about 11 had been provided.

62. These approvals and permits were all identified in the SOFCs dated 20 May 2024. The SOFC was misleading to the Applicants because by listing a number of known approvals and then asserting that there was no approval for certain development, it was inferred that the Council had reviewed each of the listed approvals to confirm they did not relate to the alleged unlawful development. In fact it had pleaded approvals that it had not even been able to find. These circumstances were improper and unreasonable conduct in the proceedings (r 3.7(d)).

63. The Council submitted that the Council had, and had produced to the Applicants by 28 July 2024, the stamped approved plans for all but one of the building approvals referred to in its contentions; the outlier was produced as part of the GIPA Act application. None recorded approvals for any of the development the subject of the DCOs. That provided a sufficient basis to make the relevant allegations that there were no approvals for the lettuce operation and the residential accommodation on the two lots. The inference should not be drawn that the Council did not have the documents before it from the known circumstances, accepting that the Explanatory Notes were incorrect.

Finding on ground 1

64. The Applicants assert that the Council officers did not have the relevant approvals as specified in the SOFCs before them to review when the contentions were formulated, a serious allegation. The basis for that submission was that not all the various approvals identified in the SOFC were produced to the Applicants or were not provided in a timely manner. The Explanatory Note provided to the Applicants on 21 June 2024 identified erroneously a number of approvals identified in the SOFC and stated that these were not able to be located in the Council’s records. It was certainly unfortunate that the Explanatory Notes were wrong, as Mr Garcia’s second affidavit identified. The Applicants were however aware of that as they received some of the documents wrongly identified as not able to be located. They also received documents through the GIPA Act process. The Council’s position was that the key documents being all building approvals were provided to the Applicants by 28 July 2024 and none of these identified that approval was granted for the development the subject of the DCOs. As identified by Mr Garcia the Council’s solicitor many of the records were old dating back to 1985 in some cases. They were created before the TRIM system, which enables more ready identification of documents held by the Council, was implemented.

65. Weighing up all these matters I do not consider there is a sufficient evidentiary basis to support the Applicants’ assertion that the Council’s officers had not reviewed relevant approvals before their inclusion in the SOFCs.

66. Ground 1 is not established.

Ground 5: Failure of the Council to provide prompt, full and frank disclosure of documents required for Applicants to confirm alleged illegality of development

67. Ground 5 which is closely related to ground 2 asserted that the failure of the Council to provide prompt, full and frank disclosure of documents required for the Applicants to confirm or deny the alleged illegality of development justified an order for costs. The Applicants submitted that the documents required for the Applicants to investigate the alleged illegality of the development the subject of the two DCOs were drip-fed between 18 October 2023 and 28 June 2024. It was unreasonable for the Council to make serious allegations that certain uses or buildings were unlawful, but on the other hand fail to promptly produce to the Applicants all the information the Council held that would have enabled the Applicants to confirm whether this were so, or whether there was material on the Council’s file that might be relevant to the Court’s discretion.

68. The Applicants’ written submissions set out lengthy GIPA Act processes and informal requests to the Council for information which commenced with requests on 18 October 2023, 20 December 2023 and 22 January 2024 and in relation to which the parties engaged in extensive correspondence. The DCOs were issued on 4 April 2024. In oral submissions focus on the GIPA Act requests was reduced and the submissions focussed on the provision (inadequate according to the Applicants) of documents by the Council once proceedings had been commenced.

69. The Council submitted that conduct by the Council under the GIPA Act is a matter for the NSW Civil and Administrative Tribunal. It is not for this Court to assess the reasonableness of action carried out by the Council under a separate statutory process.

Finding on ground 5

70. As noted above in [11] while included in the chronology provided by the parties I have not considered the GIPA Act processes whether before or after these proceedings were commenced are relevant to my consideration. As the Council submitted, GIPA Act requests where there are disputes are considered in the NSW Civil and Administrative Tribunal (as these were). It is not appropriate given the separate statutory process that this Court be asked to review that process.

71. Given my finding above in ground 1 on the basis of the matters identified in paragraph [64] there does not appear to be any basis to accept ground 5, when all the circumstances are considered, of unreasonable behaviour by the Council justifying an award of costs. Ground 5 is not established.

Ground 2: The Council’s SOFCs failed to properly identify why the development the subject of the DCOs was allegedly unlawful

72. Ground 2 asserted that the Council’s SOFCs failed to properly identify why the development the subject of the DCOs was allegedly unlawful. The Applicants’ two SOFCRs filed on 1 July 2024 put the Council on notice that it had failed to address the relevant historical environmental planning instruments that were necessary for the Council to establish whether there was a proper basis for the DCOs. The Council did not take steps to remedy this shortfall until the night before the hearing by serving on the Applicants an 826-page bundle containing primarily multiple historical versions of the Liverpool Local Environmental Plan 1997 (NSW) (LLEP).

73. The Council submitted that the Applicants were made sufficiently aware in the relevant SOFCs that the Council contended that the uses on the site were unlawful and why. The onus was on the Applicants to plead that they benefited from any historic existing or continuing use, not the Council. The Council filed the bundle of historic versions of the LLEP to assist the Applicants and the Court as that material was not otherwise filed by the Applicants.

Finding on ground 2

74. In the absence of a determination by the Court of the matters in issue between the parties it is difficult to weigh up this ground. The words in the SOFC make sense on their face. To the extent they did not make the Council’s case clear to the Applicants they would usually be the subject of correspondence between solicitors to clarify what was intended. If the Applicants were relying on existing use they bore the onus of doing so. The Council’s provision to the Court of a bundle of historical planning instruments appears a neutral matter in these circumstances. I am unable to conclude that the Council acted so unreasonably in these circumstances that a costs order is justified.

Ground 3: No reasonable prospects of success to have portable dwellings demolished as ‘buildings’ under EPA Act development control orders

75. Ground 3 asserted that the Council had no reasonable prospects of success in seeking to have the three portable dwellings demolished as ‘buildings’ under the EPA Act. Under the EPA Act there is only power, relevantly, to issue demolition orders for a ‘building’. The Council should have known the portable dwellings on the properties were not ‘buildings’ before issuing the DCOs. Rule 3.7(3)(f) and (d) apply in these circumstances.

76. The Council submitted that the concession in respect of the portable dwellings was appropriately made at the hearing in response to evidence provided by the Applicants as to the nature of the structures. That evidence was not served until two weeks before the hearing.

Finding on ground 3

77. The legal position that portable or moveable dwellings are not buildings for the purposes of the relevant planning controls is not disputed by the parties. At issue appears to be when knowledge that the dwellings the subject of the DCOs were not buildings should have been known by the Council. No evidence was placed before the Court about what the dwellings the subject of the DCOs looked like so it is difficult to assess in the absence of evidence, as opposed to assertions, that it should have been obvious to the Council’s officers what the nature of the dwellings was. The effect of the Applicants’ submissions is that no DCOs should have been issued in relation to the three movable dwellings. According to the Council once evidence was filed addressing the issue two weeks before the final hearing the matters concerning the dwellings were no longer pressed at the hearing.

78. In the absence of any determination on the issue of the movable dwellings or evidence to support the submission that this should have been obvious I am not able to accept the Applicants’ assertions. No unreasonable behaviour of the Council justifying an order for costs was identified.

79. The Applicants are unsuccessful and their notice of motion will be dismissed.

80. The Applicants have been unsuccessful in relation to their notice of motion. The same costs rules apply to the costs of the notice of motion. I do not consider it is fair and reasonable to order an award of costs in all the circumstances. Each party should pay their own costs of the notice of motion.

Orders

81. The Court makes the following orders:

In matter 2024/00163113:

1. The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed.

2. Each party to pay their own costs of the notice of motion dated 30 April 2025.

In matter 2024/00163114:

3. The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed.

4. Each party to pay their own costs of the notice of motion dated 30 April 2025.

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Decision last updated: 26 September 2025