The Owners Strata Plan 62254 v Rockdale City Council
[2009] NSWLEC 206
•1 December 2009
Land and Environment Court
of New South Wales
CITATION: The Owners Strata Plan 62254 v Rockdale City Council [2009] NSWLEC 206 PARTIES: APPLICANT
The Owners Strata Plan 62254
RESPONDENT
Rockdale City CouncilFILE NUMBER(S): 10391 of 2009 CORAM: Sheahan J KEY ISSUES: COSTS :- principles to apply in Class 1; effective surrender of a party; absence of disentitling conduct by moving party LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Rules 2007CASES CITED: Monaghan v Holroyd City Council; Holroyd City Council v Monaghan [2009] NSWLEC 112 DATES OF HEARING: 1 December 2009 EX TEMPORE JUDGMENT DATE: 1 December 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr M Wright, Barrister
SOLICITORS
Andreones LawyersRESPONDENT
Ms J Hewitt, Solicitor of
HWL Ebsworth
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESSheahan J
1 December 2009
10391 of 2009 THE OWNERS STRATA PLAN 62254 v ROCKDALE CITY COUNCIL
EXTEMPORE JUDGMENT
1 His Honour: These Class 1 proceedings are one element of litigation concerning the fire safety of a project known as the Oceanview Apartments at Brighton-Le-Sands. The current proceedings are to be discontinued by consent, but the Council resists an order that it pay the applicant’s costs.
2 On 6 January 2009 Council purported to give notice of intention to issue an order under s121B of the Environmental Planning and Assessment Act 1979. The proposed order and the supporting reasons as set out in the notice were complex and lengthy.
3 The Owners Corporation made no representations, and a form of purported order issued on 3 March 2009. The Corporation’s solicitors objected to the order and lodged a Class 1 appeal (Matter 10207 of 2009) on 31 March 2009. Council withdrew the order on 6 April 2009. On 29 April 2009 that appeal was discontinued by consent, and the Council agreed to an order that it pay the Corporation’s costs.
4 On 18 May 2009 a second purported order was served, without any fresh notice of intention being given beforehand. The Corporation commenced this present appeal against that May order on 16 June 2009.
5 It contends that the mandatory procedural fairness requirements in s121H of the Act remain unsatisfied. No fire safety schedule was attached to the order, in claimed breach of cl 168 of the Environmental Planning and Assessment Regulation 2000. The applicant further disputes that the purported order is in some way mandated by decisions made by the Supreme Court in some related proceedings.
6 However, the parties seem to agree that something needs to be done about fire safety, but not necessarily that which is proposed in an expert report by Trevor Howse & Associates Pty Ltd in November 2008, relied upon by Council, to which the applicant stated many reservations in its Statement of Facts and Contentions dated 12 August 2009.
7 The Corporation sought to defer the pursuit of the present proceedings (see letter of 28 July 2009) while some agreement on further action was explored, including in conjunction with the then current Supreme Court proceedings. The Council refused.
8 Once particulars were provided during September, Council decided to withdraw the order.
9 The costs discretion is very broad, and the court must be satisfied in each case that an order is just, equitable, fair and reasonable. I dealt with the principles and surveyed the relevant authorities in Monaghan v Holroyd City Council; Holroyd City Council v Monaghan [2009] NSWLEC 112 at [81]ff, and will apply, but not repeat, those principles now in this case. As requested by Ms Hewitt, on Council’s behalf, I have also considered the matter set out in Rule 3.7(3) of the Land and Environment Court Rules 2007.
10 The Corporation says that the Council “surrendered”, and that, in the absence of any disentitling conduct on the Corporation’s part, it is entitled to a costs order in all the circumstances.
11 The Council concedes that if the court decides to make an order against it, it is appropriate that Council pay the Corporation’s costs incurred after 23 September 2009. On that date the applicant’s solicitors wrote two letters, one giving further and quite precise particulars of its legal challenges to the May order, in support of, it would seem, a suggestion that a Judge be asked to rule upon them as a threshold matter.
12 However, I am satisfied that, quite apart from knowledge gained in the earlier proceedings regarding the applicant’s position, those challenges were adequately foreshadowed or “telegraphed” to the Council in the Statement of Facts and Contentions dated 12 August 2009, even if that statement can be said not to strictly comply, in terms of its form, with requirements of the Court’s relevant practice note.
13 I have concluded that in all the rather unusual circumstances of the case it is appropriate that Council should meet the applicant Corporation’s costs.
ORDERS
14 The orders of the court will, therefore, be:
1. The applicant’s Notice of Motion dated 3 November 2009 is upheld.
2. Leave is granted to the applicant to discontinue these proceedings, by consent.
3. The respondent is ordered to pay the applicant’s costs on a party-party basis, as assessed or agreed, including those incurred on this Notice of Motion.
0