Sericott Pty Limited v Snowy River Shire Council
[1998] NSWLEC 133
•11/26/1998
Land and Environment Court
of New South Wales
CITATION: Sericott Pty Limited v. Snowy River Shire Council [1998] NSWLEC 133 PARTIES: 40171
APPLICANT
Sericott Pty LtdRESPONDENT
Snowy River Shire Council40299
APPLICANT
Snowy River Shire CouncilFIRST RESPONDENT
Sericott Pty LtdSECOND RESPONDENT
Leslie James BlackstockTHIRD RESPONDENT
Community Association10522
RESPONDENT
APPLICANT
Sericott Pty Ltd
Snowy River Shire CouncilFILE NUMBER(S): 40170; 40299; 10522 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Land & Environment Court Rules 1996CASES CITED: Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 18 DATES OF HEARING: 17/11/98 DATE OF JUDGMENT:
11/26/1998LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Sericott Mr G Newport
Snowy River Shire Council Mr P McEwen SC
Community Association Mr G Newport
Solicitors Sericott Mr A McGuirk of Dobes & Andrews
Snowy River Shire Council Deacons Graham & James
Community Association Mr A McGuirk of Dobes & Andrews
Sericott Mr G Newport
Snowy River Shire Council Mr P McEwen SC
Community Association Mr G Newport
Solicitors Sericott Mr A McGuirk of Dobes & Andrews
Snowy River Shire Council Deacons Graham &James
Community Association Mr A McGuirk of Dobes & Andrews
JUDGMENT:
1. A declaration that the works carried out upon the lands described in the Schedule to these declarations ("the lands"), and relating to Development Consent 55/92 ("the works"), have been "physically commenced" within the meaning of s 99 of the EPAA.
2. A declaration that the works constitute an "existing use", within the meaning of s 106 of the EPAA, for the purpose of the subdivision of some of the lands into 14 freehold lots for the purpose of an integrated tourist resort, as referred to in development consent 55/92, granted by the respondent on 3 December 1992.
3. A declaration that the lands have the benefit of "existing use" rights, pursuant to Part 4 Division 2 of the EPAA, for the purpose of the subdivision of some of the lands into 14 freehold lots for the purpose of an integrated tourist resort, as referred to in development consent 55/92, granted by the respondent on 3 December 1992.
4. The respondent to pay the applicant's costs
Matter 40299 of 1997
* Application dismissed and the applicant to pay the costs of the First and Third Respondents
Exhibits S6, S7 and A1 to be returned.
1. In this litigation there are some outstanding matters to be attended to in the two Class 4 proceedings, namely final declarations in matter 40170, and questions of costs in both matters, and some issues concerning the further conduct of the pending, and related, Class 1 proceedings.
The "Orders" in the Class 4 proceedings
2. In my judgment of 24 July 1998 I came to a series of conclusions regarding the two Class 4 proceedings, and, in an endeavour to avoid undue delay in concluding the litigation, I made the following orders:
"In Matter 40170 of 1997
1. A declaration that works carried out on the subject lands, and relating to Development Consent 55/92 have been "physically commenced" within the meaning of s 99 of the EPAA.
2. A declaration that those works constitute an existing use within the meaning of Section 106 EPAA.
3. The declaration sought in Prayer 3 is refused but the parties have leave to bring in Short Minutes of Order to reflect these reasons for judgment in respect of "existing use rights".
4. The question of costs is reserved.
In Matter 40299 of 1997
1. Application dismissed.
2. The question of costs is reserved.
All exhibits may be returned."
3. It now appears that the Registrar on 24 July 1998 entered the orders in the two Class 4 proceedings in the following terms:
In Matter 40170 of 1997
"1. The works carried out on the subject lands, known as lots 13 and 14 in Deposited Plan 868116, lots 1-4 in Deposited Plan 868117 and lots 1-4 in Deposited Plan 270133, and relating to Development Consent 55/92 have been `physically commenced' within the meaning of Section 99 of the Environmental Planning and Assessment Act.
2. Those works in 1. above constitute an existing use within the meaning of Section 106 of the Environmental Planning and Assessment Act.
3. The declaration sought in Prayer 3 of the Application is refused, but the parties have leave to bring in Short Minutes of Order to reflect these reasons for judgment in respect of "existing use rights".
4. The question of costs is reserved.
5. The exhibits be returned."
In Matter 40299 of 1997
"1. The Application be dismissed.
2. The question of costs is reserved.
3. The exhibits be returned."
The Class 1 proceedings
4. The Class 1 proceedings were commenced on 5 September 1997 and concern an appeal by Sericott against Council's refusal on 16 July 1997 of Development Application 134/97, which sought approval for a "proposed new entry gatehouse and sign structure and associated roadworks" on part of the site which is the subject of the two Class 4 proceedings.
5. The Class 1 proceedings have been adjourned from time to time pending the resolution of the Class 4 proceedings. On 9 October 1998, Talbot J adjourned for hearing before me a notice of motion in the Class 1 proceedings, by the Council, seeking the following orders:
"1. That the following issues be determined by a Judge as preliminary questions of law:-
a) must the development application be refused on the grounds that the development proposed is development which may not be carried out under the provisions of the Snowy River Local Environmental Plan 1997 or otherwise?
b) having regard to the decision of this Honourable Court on 24 July 1998 in proceedings between the parties (no.40170 of 1997), whether the land to which the application relates has the benefit of any existing use rights which would enable the development application to be determined by the grant of approval.
2. That, in the event that the Court holds that the development application can legally be approved, the respondent have leave to amend its statement of issues to add the following additional issue:
3. Whether the development application should be approved in isolation from the development of an integrated all-year round tourist resort on the land of which the land the subject of this application forms part.
3. Such further or other orders as the Court may deem fit."
6. Subsequently the company filed a Notice of Motion in the Class 1 proceedings seeking the following orders:
"1. That the class 1 appeal be expedited.
2. That the motion for expedition be heard together with matter no.40170 of 1997 and 40299 of 1997 before Sheahan J at 10.00am on 17 November 1998.
3. That the matter be listed for hearing before an Assessor in Sydney.
4. Such further or other orders as the Court sees fit."
7. The Council had already raised with the company some questions of law, and, on 16 September 1998, following my judgment in the two Class 4 proceedings, filed a Statement of Issues in the following terms:
"1. Must the development application be refused on the grounds that the development proposed is development which may not be carried out under the provisions of the Snowy River Local Environmental Plan 1997 or otherwise?
2. Whether the land to which the application relates has the benefit of any existing use rights."
8. The parties acknowledge that the questions of law now raised in the Class 1 proceedings may be effectively determined by the finalisation of my orders in the Class 4 proceedings, and the Council raised no real argument against the expedition sought by the company in the Class 1 proceedings.
9. The parties agreed that the current issues in the Class 1 proceedings should be stood over, with liberty to restore on short notice, pending consideration of their respective positions, following my determination of the outstanding issues in the two Class 4 proceedings. I have been assured by the parties' representatives that there are grounds for ordering expedition, but I am content to adjourn the matter, as suggested, without coming to any conclusion on that question.
The Class 4 proceedings
10. Turning, therefore, to the Class 4 proceedings, I note that only the question of costs remains to be dealt with in 40170, but that both parties contend that, apart from the outstanding issue referred to in Order 3, made by me in 40299, some aspects of my declarations 1 and 2 in those proceedings also need to be altered, to reflect clearly the Court's intentions as disclosed by my lengthy published reasons.
11. Both parties urged me to vacate those two declarations and one Order in 40299, in favour of more comprehensive declarations, which would precisely delineate the lands affected by them, pursuant to the provisions of Part 15, Rule 9(e) of the Land and Environment Court Rules 1996 ("the Rules"):
"9. The Court, may, on terms, set aside or vary an order in any of the following cases:
....
(e) if the order does not reflect the intention of the Court;
...."
12. Put simply, the outstanding question, on which the parties do not agree, is the extent to which existing use rights apply to the land comprised in the "community title" lot, being lot 1 in deposited plan 270133.
13. The various relevant deposited plans were tendered as Exhibit A1. Lot 1 in deposited plan 270133 comprises existing and proposed roads, recreation areas (e.g. tennis court) and lands intended for use in connection with infrastructure items such as water supply.
14. Mr McEwen SC, for the Council, argues that the terms of my judgment make it clear that only the following lands within lot 1 in deposited plan 270133 should be so declared:
"Those portions of community plan DP 270133 shown as developed roads on Annexure "O" of the affidavit of Peter Williams Burns sworn 7 October 1997, and the areas shown as `tennis courts' and `water tank' on the plan A02, being part of exhibit S6".
15. Mr McEwen's basis for arguing that existing use rights should be restricted to these areas is that my judgment of 24 July 1998 specifically stated (p33) that: "Whilst I am prepared to accept that `existing use' rights apply to permit the continuance of the present 14 lot subdivision, I do not accept that these rights extend to the balance of the lands, as yet undisturbed". Mr McEwen argues that any new order should reflect this statement by restricting existing use rights to lands actually disturbed by physical works.
16. Specifically in respect of roads, Mr McEwen says that if any roads at all are to be included in the Schedule to the proposed orders, it/they should be only those clearly identified in the evidence as having been "physically commenced". (Hence his suggestion that they be identified by reference to Annexure "O" of the affidavit of Peter William Burns sworn 7 October 1997).
17. On the other hand, Mr Newport, for the company, argues that all lands within lot 1 comply with the parameters of my decision and should be declared as having existing use rights.
18. Mr Newport also argues that the lands can and should be defined by reference only to the Consent and not by reference to a narrow observation of actual physical works. To illustrate the absurdity of the contrary view, he says that actual work done may in fact "disturb" land on the periphery of the lands actually comprising lot 1 of deposited plan 270133, and the Court simply could not have meant to infer that such lands, being "disturbed", should have existing use rights. Hence, he argues, the correct delineation of the lands to enjoy such rights must refer to the Consent and would therefore be those which were so identified on the "approval stamped" plans numbered AO1-3 in Exhibit S6, together with those roadways shown in the "engineering stamped" plans in Exhibit S7.
19. Mr Newport notes that if only the Annexure "O" roads are to be identified as relevant lands it would appear that at least lots 13 and 14 would have no access. The relevant development application (see Annexure "G" to affidavit of Victoria Margaret Eleanor Maxwell dated 23 October 1997) and the consent (Annexure "V" to that affidavit) must, therefore, in his submission, be read with the stamped plans (Exhibits S6 and S7).
20. The central finding of my judgment dated 24 July 1998 appears at page 30 in the following terms:
"Accordingly, I have come to the view that Council gave consent to more than merely a 14 (or 16) lot subdivision, in that Council was aware, at the time it agreed to the conditions, that the application was in fact for a subdivision of the whole of the relevant lands for a specific purpose, namely, the development, in stages, of an integrated tourist resort, which was shown in some detail on the stamped drawings."
21. Whilst it is true that I made (at p33 of my judgment) comments relied upon by Mr McEwen, and quoted in par 15 above, it is clear from reading the judgment as a whole that the "undisturbed" lands to which I was referring (to which existing use rights, I have held, do not apply), are only those lands set aside for development in subsequent stages of the total proposed project. At p37 of my judgment, for instance, I stated, in conclusion, that "the `existing use' rights are confined to permitting the completion of `Stage 1' of the development and do not extend to the balance of the lands at present undisturbed" (emphasis now added).
22. Existing use rights were established in this case by the evidence of actual physical works on the land, which works were of such an extent "as to ensure that the development consent would not lapse" (s106 EPAA). However, once existing use rights were established on that basis, they then apply to those lands which can be appropriately identified as the subject of the consent.
23. There is an important distinction, in the context of the question of existing use rights, between land "simply held in reserve for some future activity" (Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 18), and land, which is the subject of a valid consent, but is undisturbed only because the works proposed for it have simply not yet been finished.
24. The "Stage 1" consent, when read together with the stamped plans, clearly envisages the construction of all roads within lot 1 of deposited plan 270133, the construction of the tennis courts, clubhouse, waterworks, etc.
The declarations to be made
25. Therefore, to best reflect the intentions of my judgment of 24 July 1998, the declarations and orders made in 40170 on 24 July 1998 should be vacated, pursuant to Part 15 Rule 9 of the Rules, and in lieu thereof the Court should make the following three declarations:
1. A declaration that the works carried out upon the lands described in the Schedule to these declarations ("the lands"), and relating to Development Consent 55/92 ("the works"), have been "physically commenced" within the meaning of s 99 of the EPAA.
2. A declaration that the works constitute an "existing use", within the meaning of s 106 of the EPAA, for the purpose of the subdivision of some of the lands into 14 freehold lots for the purpose of an integrated tourist resort, as referred to in development consent 55/92, granted by the respondent on 3 December 1992.
3. A declaration that the lands have the benefit of "existing use" rights, pursuant to Part 4 Division 2 of the EPAA, for the purpose of the subdivision of some of the lands into 14 freehold lots for the purpose of an integrated tourist resort, as referred to in development consent 55/92, granted by the respondent on 3 December 1992.
Schedule
"The lands" comprise the whole of the land described and referred to in:
(a) Lot 13 and lot 14 in DP 868116;
(b) Lots 1-3 inclusive in DP 868117;
(c) Lot 1 in DP 270133.
Costs
26. The costs in both Class 4 matters, which were heard together, were reserved in my judgment of 24 July 1998 and the Court has now heard the parties' submissions on the question.
27. Mr Newport, on behalf of Sericott, says that the company was "essentially successful" in its Class 4 proceedings, and the Council "totally lost" those which it had brought. While he acknowledges that the company did not succeed in establishing existing use rights for all of the subject land, he submits that the correct test is the gaining of the relief sought, rather than some measure of its quantum.
28. Mr McEwen, on behalf of the Council, concedes that, in the ordinary course of events, the company should be entitled to its costs in matter 40299, but urged the Court to make no order as to costs in either case. He submits that the overwhelming burden of the company's costs arose in matter 40170, in which the company fell far short of the ambit of its Counsel's opening address and, he submits, obtained only a "minimal result", in that the Court did not hold that existing use rights attached to a large proportion of the subject land.
29. In Class 4 of the Court's jurisdiction costs normally follow the "event". I agree with Mr Newport that the more appropriate definition of "event", as in "success" in proceedings, is whether a party has essentially gained the relief it sought, rather than a precise measure of the quantum of that relief. In matter 40170, Sericott essentially obtained all of the declarations it sought, even though the third declaration limited the extent to which existing use rights applied to the subject lands. In matter 40299, Council totally failed to obtain the declaratory relief it had sought.
30. Accordingly, I have come to the view that Sericott is entitled to its costs in both matters. It logically follows that the third respondent (the Community Association DP 270133) must also have its costs. The second respondent Blackstock has taken no part in any of the proceedings in 40299.
Conclusions
31. The Orders of the Court will, therefore, be as follows:
Matter 10522 of 1997
These Class 1 proceedings, and the two outstanding Notices of Motion, are adjourned to a date to be fixed, and the parties have liberty to restore them to the Registrar's callover list on three days notice.
Matter 40170 of 1997
* The declarations and order of the Court as entered on 24 July 1998 are vacated pursuant to Land & Environment Court Rules 1996 Part 15 rule 9(e).
* In lieu of those declarations and order, the Court makes the declarations numbered 1 to 3, as set out in par 25 of this judgment, and orders:
4. The respondent to pay the applicant's costs.
Matter 40299 of 1997
1. Application dismissed
2. The applicant to pay the costs of the First and Third respondents.
Exhibits
32. All the exhibits before the Court on 24 July 1998 were returned when judgment was delivered, but several documents were tendered (some again) during the hearing on 17 November 1998.
33. Exhibits S6, S7 and A1 may now be returned to Counsel for Sericott
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