Shoalhaven City Council v Dickson

[1988] NSWLEC 13

Land and Environment Court

of New South Wales

CITATION:	Shoalhaven City Council v Dickson & Ors [1988] NSWLEC 13
PARTIES:	APPLICANT Shoalhaven City Council RESPONDENT Dickson & Ors
FILE NUMBER(S):	40175 of 1984
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	08/26/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: The Applicant seeks an order for costs against the three Respondents in respect of class 4 proceedings commenced on 30th October, 1984.

These proceedings which have not been prosecuted with any vigour or despatch have now been terminated by my order pronounced yesterday dismissing, by consent, the application.

The class 4 proceedings involved a property situate at Tomerong containing an area of some 17 hectares and being Portion 183 Parish of Wandrawandian which the Respondents (who are related mother and daughters) acquired in July 1979.

The Applicant sought injunctive relief against the Respondents "occupying or carrying out any building work" on the subject land and requiring the Respondents to remove from the land "three buildings which have been partially erected upon the said land".

The proceedings never came on for hearing in this Court although at one time the hearing had been specially fixed for 11th June, 1987. That hearing date was vacated on terms that the 3rd Respondent lodge with the Applicant an objection under State Environmental Planning Policy No. 1 - Development Standards on the basis that if this application were approved all matters in dispute between the parties would be resolved save for the question of costs.

In determining the question of costs I have had regard to all the affidavits filed in the proceedings. These are affidavits filed by the Applicant. The Respondents did not file any affidavits.

Although the position is not entirely clear on the affidavit material it appears that from the date of acquisition of the property in 1979 until the commencement of the proceedings the Respondents had been living in sub-standard accommodation on the subject land.

It appears that the Applicant commenced the class 4 proceedings after one of its Health and Building Surveyors inspected the subject land in July 1984 observing that a timber frame cabin-type cottage and brick piers appeared to have been recently placed on the land. Following that inspection the Applicant issued a stopwork notice which was posted to one of the Respondents and her husband. On 13th August, 1984 the same Inspector returned to the subject property and observed that "considerable brickwork additions were being made to an old galvanised and fibro shed". He also observed a truck on the subject land with another dwelling-house loaded on it. On that occasion he spoke to two of the Respondents advising them that they must obtain the Council's approval before carrying out building work.

On 19th October, 1984 the same Inspector returned to the subject land and observed that roofing work was being carried out.

Prior to commencing the proceedings the Applicant's Solicitors had written to each of the Respondents advising them that the Council required building operations to cease forthwith and no other development to be undertaken without the Council's approval. The letter advised that unless the Council's requirements were complied with legal proceedings would be instituted in this Court seeking to restrain the unauthorised building work and the restoration of the land to its previous state.

Before the Respondents had been served with the originating process they wrote to the Applicant indicating their plight in seeking better living accommodation and explaining their conduct in relation to building works being carried out on the subject land and appealing to the Applicant for understanding and assistance.

This appeal was met with advice from the Applicant's Solicitors that they were instructed to "proceed to have the Court determine the matter".

Soon thereafter in February 1985 the Respondents lodged development applications with the Applicant seeking approval for 2 dwelling-houses to be erected on the subject land and the up-grading and renovation of an existing building on the subject land.

On 25th June, 1985 the Applicant granted development consent for the erection of the aforesaid 2 dwelling-houses (subject to the imposition of conditions). On the same day it refused the application to up-grade the existing building. In respect of the latter determination an appeal under s.97 of the Environmental Planning and Assessment Act was made to this Court on 12th August, 1985. (That appeal was never heard and by consent yesterday I ordered that it be dismissed with no order as to costs). Recently the Applicant has granted development consent to the up-grading of the existing building by upholding the 3rd Respondent's objection under State Environmental Planning Policy No. 1.

It is in the light of the foregoing facts that I must determine the Applicant's application for costs.

It is agreed that the approach I should take in determining this question is to ask whether the Applicant would have been successful in the proceedings. On the basis of the affidavit material filed in the proceedings I am of the opinion that the principal relief sought ie the mandatory injunction requiring the demolition of the partially erected dwellings would have been refused in the Court's discretion. Solid confirmation for this opinion is provided by the fact that the Applicant in June 1985 granted development consent to the 2 new dwellings and in recent times has granted development consent to the up-grading of the existing dwelling.

There remains the question whether the Applicant would have succeeded in its application for prohibitory injunctions against the continuation of building works. The answer to this question is likewise profoundly influenced by the fact that the Applicant has, subsequent to commencing the proceedings, granted development consent to all three dwellings.

Moreover on the affidavit material, again I think that the Court's discretion would have been likely to have been exercised in favour of the Respondents, whose plight was acute. Looking at the affidavit material it appears to me quite probable, that had the Respondents' letter outlining their plight and making their appeal to the Applicant been received before the commencement of the proceedings, the Applicant would have stayed its hand. Unfortunately the Respondent's letter was received soon after the commencement of the proceedings and this doubtless influenced the decision of the Applicant to allow the matter to proceed to be determined by this Court.

However as I have earlier indicated the subsequent history of the case indicates that the proceedings have not been prosecuted with any vigour or despatch, doubtless because the Applicant had genuine sympathy for the plight of the Respondents in seeking to improve their substandard housing conditions. In the end the parties have resolved their differences without the intervention of the Court. This result not only is satisfactory but could have been reasonably anticipated.

In all of the circumstances of the case I am of the opinion that no order for costs should be made in these proceedings. Accordingly I order each party to bear its own costs.