The Owners - Strata Plan No. 74664, 74662, 74667, 74670, 74668 v Auburn Council

[2008] NSWLEC 230

Land and Environment Court

of New South Wales

CITATION:

The Owners - Strata Plan No. 74664, 74662, 74667, 74670, 74668 v Auburn Council [2008] NSWLEC 230

PARTIES:

The Owners - Strata Plan No. 74664, 74662, 74667, 74670, 74668 (Applicants)
Auburn Council (Respondent)

FILE NUMBER(S):

10315 of 2008; 10316 of 2008; 10317 of 2008; 10318 of 2008; 10293 of 2008

CORAM:

Jagot J

KEY ISSUES:

Costs :- whether presumtion of no order as to costs displaced - whether fair and reaonsable for the Council to pay the applicants' costs - appeals against orders served by the Council - orders agreed to be invalid - Council ordered to pay the applicants' costs

CASES CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 2007

TEXTS CITED:

Auburn Council v Hiken Group Pty Limited; Auburn Council v Proprietors of Strata Plan 74671 [2008] NSWLEC 191
Pittwater Council v Minister for Planning; Austral Monsoon Industries Pty Limited v Minister for Planning (No 2) [2008] NSWLEC 153

DATES OF HEARING:

5 August 2008

EX TEMPORE JUDGMENT DATE:

5 August 2008

LEGAL REPRESENTATIVES:

APPLICANTS
Mr M Wright
SOLICITORS
Andreones Pty Ltd Lawyers

RESPONDENT
Mr S Flanigan
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

5 August 2008

10315 of 2008
10316 of 2008
10317 of 2008
10318 of 2008
10293 of 2008

THE OWNERS – STRATA PLAN NO. 74664, 74662, 74667, 74670, 74668
Applicants

AUBURN COUNCIL
Respondent

JUDGMENT

Jagot J:

1 These are notices of motion in five related class 1 appeals brought under s 121ZM of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2 In the notices of motion the applicants in all five proceedings seek leave to discontinue the proceedings (about which there is no issue), but also seek an order that the respondent, Auburn Council, pay the applicants’ costs of the proceedings as agreed or assessed.

3 The application for costs by the applicants is explained by the background circumstances. In short, the Council served orders on the present applicants and another party, known as Hiken Group Pty Ltd under item 6 of s 121B of the EPA Act relating to fire safety. Those orders were framed in terms of the powers set out in s 121P, namely, that instead of the orders specifying that the recipient do or refrain from doing a particular thing, the orders instead required the recipient to submit to the Council within a particular time period particulars of the work the recipient considered necessary to make provision for the matters as specified.

4 Both Hiken, the owner of the commercial strata within the building, and the present applicants submitted particulars of work to the Council. I infer that the Council was dissatisfied in some respects because both Hiken and the present applicant became respondents to separate class 4 proceedings commenced by the Council. In addition, the present applicants, unlike Hiken, also filed class 1 appeals under s 121ZM against the Council’s failure to act in accordance with one or other of the subsections of s 121ZM.

5 In the class 4 proceedings against Hiken there was an application by Hiken to strike out the proceedings. Lloyd J heard that application on 30 May this year and determined, consistently with the position taken by the present applicants, that the Council’s class 4 proceedings had no jurisdictional foundation. The scheme of the EPA Act required the Council, on receipt of the particulars of work, to take one or other of the steps identified in s 121R, namely, either to accept the particulars with or without modification or to reject the particulars and thereafter to order the recipient either to carry out the work in accordance with the particulars, carry out the work in accordance with modified particulars or carry out work as specified by the Council itself. On this basis, Lloyd J determined that the class 4 proceedings commenced by the Council against Hiken had to be dismissed (Auburn Council v Hiken Group Pty Limited; Auburn Council v Proprietors of Strata Plan 74671 [2008] NSWLEC 191).

6 Because the orders against the present applicants were identical, the Council discontinued the class 4 proceedings against the present applicants on the basis of an agreement that the Council pay the present applicants’ costs of the class 4 proceedings. That, of course, left on foot the five appeals against the orders served by the Council which the parties now seek to resolve and in respect of which the issue of costs has arisen.

7 From the applicants’ point of view, it simply says that it was entirely appropriate for it to seek to protect its position by commencing these five appeals against orders the Council had served. The applicants put the Council on notice relatively early in the course of these class 1 proceedings that the Council had not complied with s 121R of the EPA Act with the consequence that the orders were invalid. It necessarily followed from all the circumstances that the presumption against any costs order was displaced; it being fair and reasonable that the Council pay the applicants’ costs of these proceedings as well.

8 For its part, the Council notes that the class 1 proceedings, in effect, gave rise to the same issues as the class 4 proceedings. In the class 4 proceedings the Council had agreed to pay the applicants’ costs. It would be unfair to burden the Council with additional costs orders in these proceedings. In this respect the Council relied upon the observations of Lloyd J in another decision, Pittwater Council v Minister for Planning; Austral Monsoon Industries Pty Limited v Minister for Planning (No 2) [2008] NSWLEC 153 from [9] onwards but particularly at [15]. His Honour observed that the Council’s costs in the class 1 appeal had been adequately met by the costs order in the class 4 proceedings in circumstances where the Council’s legal contentions in the class 1 appeal were not separate or distinct from the relief that the Council had successfully sought in the class 4 proceedings involving (as they did) what His Honour described as “mutually relevant facts and akin law principles”.

9 The essential difference in the present case is that the powers that the Council invoked against the applicants were those powers vested in councils by the provisions of s 121B of the EPA Act, namely, the power to issue an order requiring a recipient to take action under threat of further legal sanction. The issue of orders is a serious matter because the provisions of the EPA Act provide that a failure to comply with an order is an offence. Persons in the applicants’ position, as in this case, are justified in seeking to protect their position by filing class 1 appeals against the Council’s failure either to accept the particulars submitted with or without modification or to reject the particulars. If that action had not been taken by the applicants, then it would have been left under threat of the orders that the Council had served.

10 It seems to me that the inescapable fact is that the Council sought to invoke coercive powers with potentially serious consequences against the present applicants but in fact did not act validly in so doing (and I should note in this regard that the Council accepts that the orders that it served were invalid). In those circumstances, there seems to me to be a very strong case for displacement of the presumption as set out in Pt 3.7 r 2 of the Land and Environment Court Rules 2007 (that 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).

11 I am satisfied that it is fair and reasonable in the circumstances of this case that the Council be ordered to pay the applicants’ costs of the class 1 proceedings. It invoked its coercive powers. It did so on an invalid premise. That invalid premise caused the applicants quite reasonably to commence the appeal proceedings to protect its position. As it turned out, invalidity is now agreed with the consequence that these appeals have proved futile.

12 Accordingly, I am satisfied that in each of the five class 1 appeals there should be an order that the respondent pay the applicants’ costs of the proceedings as agreed or assessed and I so order. I make orders in accordance with each of the notices of motion in the five proceedings.

13 The orders of the Court are:

(1) The Court notes that the applicants discontinue the proceedings in each of the proceedings; and

(2) The respondent is to pay the applicants’ costs of the proceedings as agreed or assessed, including the costs of the notice of motion filed 30 July 2008.

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