UMA Centre Limited v Canterbury-Bankstown Council

[2023] NSWLEC 1322

Land and Environment Court

New South Wales

Medium Neutral Citation:

UMA Centre Limited v Canterbury-Bankstown Council [2023] NSWLEC 1322

Hearing dates:

Conciliation Conference 16 May and 8 June 2023

Date of orders:

22 June 2023

Decision date:

22 June 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Consent No. DA-893/2020 is modified in the terms in Annexure A.

(3)   Development Consent No. DA-893/2020 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of consent with new operational plan of management – conciliation conference – agreement between the parties – costs sought by the Respondent – orders

Legislation Cited:

Civil Procedure Act 2005, s 98

Environmental Planning and Assessment Act 1979, ss 4.55, 8.15

Environmental Planning and Assessment Regulation 2021, s 113

Land and Environment Court Act 1979, s 34

Land and Environment Court Rules 2007, rr 3.7, 3.10

Uniform Civil Procedure Rules 2005, Pt 42, r 42.1, Sch 1

Cases Cited:

Ghazi Al Ali Architect Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1493

Category:

Principal judgment

Parties:

UMA Centre Limited (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

22/382066

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal being an application pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to the Court to modify development consent DA/893/2020 granted by the Court in the matter of Ghazi Al Ali Architect Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1493, for alterations and additions to the existing community facility and construction of a mixed-use development, including a public place of worship with ancillary facilities, food and drink premises, and basement car parking (the Proposed Development) at 15-19 Enterprise Avenue, Padstow (the Site) subject to the conditions of consent.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 May 2023 and 8 June 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and approving the modification to the development consent subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

5. The parties’ decision involves the Court exercising the function under s 4.55(8) of the EPA Act to approve the modification to the development consent.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent granted by the Court. The parties explained how the jurisdictional prerequisites have been satisfied.

7. The provisions of s 4.55 extend to enable the Court to modify a consent granted by it: s 4.55(8) of the EPA Act. The Respondent sought an order for costs and made submissions as to the power to make such an order resulting from a s 34 Agreement filed with the Court. The Applicant agreed to such an order only if the Court had powers to do so.

8. The present appeal is confined to a modification to development consent DA-893/2020 by encompassing Eid festivals. The Operational Plan of Management has been updated to accommodate the Eid festivals and there are consequential modifications to the conditions of consent. There is no change to the approved built form or architectural plans arising out of the modification application. For this reason, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted as required by s 4.55(2) of the EPA Act.

9. The modification application was placed on notification by the Respondent on 17 May 2023 and notification concluded on 6 June 2023. No submissions were received by the Respondent.

10. The Respondent made written submissions in support of a proposed Order which read as follows:

“The applicant is to pay the respondent’s costs in the agreed sum of $3,000 within 28 days, pursuant to s3.7 of the Land and Environment Court Rules 2007.”

11. The Respondent’s submission as to the Court’s jurisdiction to make the costs order as a result of a s 34 Agreement are reproduced in extract as follows:

“The current application was undertaken by way of s4.55(8) as a consequence of which the proposal did not go through the Portal; and no costs of assessment were ever paid.

Council argued it could not undertake a notification to residents absent payment of the relevant fees. The applicant chose to meet the cost. This submission for costs does not relate to the notification fee which was met informally by the applicant, rather than via the Portal.

Upon receipt of the current application under s4.55(8) the Council undertook its assessment and concluded that the revised PoM was deficient in several particulars. See Statement of Facts and Contentions filed 10 February 2023.

The Council retained McLaren Traffic Engineering (who had been originally retained in 2021/00362101), specifically Matthew McCarthy, to advise on conditions.

The conditions proposed by Mr McCarthy became the basis of the conditions which the parties now ask the Court to impose as part of the s34 agreement.

Had the matter proceeded by way of a s4.55 amendment (rather than s4.55(8) directly to the Court) the application fee through the Portal would have been $11,296.67.

Mr McCarthy for McLaren Traffic Engineering has indicated that his costs would be $4,950.00 (plus GST) and thus far has invoiced Council the sum of $1,500.00 (plus GST) for his work in this matter. A further invoice is anticipated.

This does not include the costs of Mr Aley, Council’s planner, nor the legal costs of the author, which are more in the way of opportunity costs rather than specific invoices.

The Council contends that it is unfair and unreasonable for the rate payers of Canterbury Bankstown to foot the bill for this application because it has proceeded via s4.55(8).

There is a clear source of authority for the Court to agree to costs under rule 3.7. The costs sought are reasonable and commensurate with the costs the Council has been put to in order to deal with the application.”

12. The answer lies in r 3.10 of the Land and Environment Court Rules 2007 (LEC Rules) which relevantly provides as follows:

3.10   Court functions not exercisable by Commissioners

(1)  The following functions of the Court are not exercisable by a Commissioner—

(a)  the functions conferred on the Court by any of the following provisions of the Civil Procedure Act 2005—

…

(iv)  section 98 (the power to make general orders as to costs),

…

(b)  the functions conferred on the Court by any of the following provisions of the Uniform Civil Procedure Rules 2005—

…

(v)  Part 42 (the power to make orders as to costs),

…

(2) Nothing in this rule prevents a Commissioner from making an order as to costs pursuant to the requirements of section 8.15(3) of the Environmental Planning and Assessment Act 1979.

(Emphasis added.)

13. The function of the Court to award costs under s 98 of the Civil Procedure Act2005, reproduced below, is regulated by r 3.7 of the LEC Rules. This function to award costs is not exercisable by a Commissioner (r 3.10(1)(iv) LEC Rules).

98   Courts powers as to costs

(1)  Subject to rules of court and to this or any other Act—

(a)  costs are in the discretion of the court, and

(b)  the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)  the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2)  Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3)  An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4)  In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to—

(a)  costs up to, or from, a specified stage of the proceedings, or

(b)  a specified proportion of the assessed costs, or

(c)  a specified gross sum instead of assessed costs, or

(d)  such proportion of the assessed costs as does not exceed a specified amount.

(5)  The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and this section has effect in addition to, and despite anything in, the Married Persons (Equality of Status) Act 1996.

(6)  In this section, costs include—

(a)  the costs of the administration of any estate or trust, and

(b)  in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and

(c)  in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed.

14. Part 42 of the Uniform Civil Procedure Rules 2005 (UCPR) relates to costs and the general rule in civil proceedings that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. (r 42.1 UCPR). However, Sch 1 of the UCPR provides for the Application of the rules in various jurisdictions set out in a table format with four columns. The Sch 1 table provides that the rules apply in the Land and Environment Court (Column 1) and, in the context of Class 1 proceedings (Column 2), the function to award costs under s 98 of the Civil Procedure Act 2005 is not excluded (Column 3) whereas the application of r 42.1 of the UCPR is expressly excluded (Column 4).

15. The only cost function exercisable by a Commissioner of the Land and Environment Court is that to make an order for costs under s 8.15(3) of the EPA Act, which is preserved by r 3.10(2) of the LEC Rules. These proceedings do not attract the costs function pursuant to s 8.15(3) of the EPA Act.

16. Hence, any agreement between the parties that the Applicant should pay an agreed amount of costs to the Council can be an inter-parties agreement, which may be noted by the Court before making the orders in a s 34(3) agreement. In this case, the Applicant’s agreement was conditional on the Court having the power to make such an order and as I do not have that power, I am unable to note it as an inter-party agreement. Alternatively, the Council can apply by notice of motion for costs in that amount. The Registrar has delegation to determine cost applications up to $30,000. This application can be by consent.

17. The parties filed a s 34 Agreement without the order for costs on 8 June 2023.

18. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

19. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

20. The Court notes that

1. Canterbury-Bankstown Council, the Respondent, as the relevant consent authority has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the modification application DA-893/2020/A filed with the Court on 19 December 2022, by the inclusion of an updated Operational Plan of Management, prepared by Nexus Environmental Planning Pty Ltd, dated 1 May 2023.

2. The Applicant filed the amended application with the Court on 15 May 2023

Orders:

21. The Court orders:

1. The appeal is upheld.

2. Development Consent No. DA-893/2020 is modified in the terms in Annexure A.

3. Development Consent No. DA-893/2020 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

Annexure A

Annexure B

Plan of management

**********

Decision last updated: 22 June 2023