Walton v Blacktown City Council

[2006] NSWLEC 451

Land and Environment Court

of New South Wales

CITATION:	Walton v Blacktown City Council [2006] NSWLEC 451
PARTIES:	APPLICANTS Lance Walton Linda Walton RESPONDENT Blacktown City Council
FILE NUMBER(S):	11059 of 2005
CORAM:	Preston CJ
KEY ISSUES:	Development Consent :- modification - conditions concerning carparking numbers and signage and fire evacuation plan
LEGISLATION CITED:	Land and Environment Court Act 1979 s 34A, s 34B(1), s 69(2), s 80, s 80A Land and Environment Court Rules 1996 Pt 13 r 16(e), Pt 16 r 4, Pt 16 r 4(1), Pt 16 r 4(2)
CASES CITED:	Aldi Food Pty Limited v Holroyd City Council (2005) 142 LGERA 141; Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006); International Trucks Australia Pty Limited v Blacktown City Council [1997] NSWLEC 56 (16 March 1999); Progress and Securities Pty Limited v North Sydney Municipal Council (1988) 66 LGRA 236; Statewide Developments Pty Limited v Minister for Infrastructure and Planning (2005) 142 LGERA 154; Walton v Blacktown City Council [2006] NSWLEC 65 (8 February 2006); Walton v Blacktown City Council (No 2) [2006] NSWLEC 345 (19 April 2006)
DATES OF HEARING:	12/07/2006
EX TEMPORE JUDGMENT DATE:	07/12/2006
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT Mr P Kelso (solicitor) SOLICITORS Norman Waterhouse Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

12 JULY 2006

11059 OF 2005

WALTON V BLACKTOWN CITY COUNCIL

JUDGMENT

1 HIS HONOUR: Mr and Mrs Walton have applied to the Court to modify a development consent granted by the Court. In order to understand this application, it is helpful to explain the background to the application.

Background

2 Mr and Mrs Walton run a guesthouse called The Allawah Street Guesthouse in Blacktown. They have a development consent, granted in about 1992, allowing the use subject to conditions including that the number of bedrooms is limited to two and that four car parking spaces be provided.

3 Mr and Mrs Walton wanted to increase the number of bedrooms for use in the guesthouse from two to four.

4 The relevant environmental planning instrument applying to the land was the Blacktown Local Environmental Plan 1988. That plan classifies a guesthouse as a bed and breakfast establishment. A bed and breakfast establishment is a permissible use in the relevant zone in which the land is located but only with prior development consent. Application for development consent is made under the Environmental Planning and Assessment Act 1979.

5 So on 22 December 2004, Mr and Mrs Walton applied to Blacktown City Council, which was the relevant consent authority, for development consent to increase the number of rooms for use in the guesthouse from two to four so as to hold up to thirteen people (guests).

6 On 13 July 2005, the Council refused the application for a number of stated reasons. Primarily, the Council was concerned about fire safety in the development, the safety of residents of the guesthouse and the health and safety of surrounding residents.

7 Mr and Mrs Walton were dissatisfied with the Council’s decision. On 14 September 2005, Mr and Mrs Walton lodged an appeal to this Court, as they were entitled to do, under s 97 of the EPA Act. That appeal involves a re-hearing of the development application. It allows the Court to make a fresh decision on the facts established before the Court. The Court has all the functions and discretions that the Council as the consent authority had when it determined the development application originally.

8 The appeal went through various case management steps. The Registrar determined that the proceedings should be dealt with by means of an on-site hearing under 34A of the Land and Environment Court Act 1979. The on-site hearing was fixed for 8 February 2006.

9 An on-site hearing involves dealing with the appeal by means of a conference presided over by a single commissioner: see s 34B(1) of the Land and Environment Court Act.

10 As Chief Judge, I arranged for Commissioner Moore to be the single commissioner to exercise the Court’s jurisdiction to hear and determine the appeal under s 97 of the EPA Act.

11 Commissioner Moore conducted the on-site hearing on 8 February 2006. Mr and Mrs Walton were legally represented by Mr C Gough, solicitor. The Council was legally represented by Mr P Kelso, solicitor.

12 The Council had prepared draft without prejudice conditions of consent that it contended ought to be imposed if the Court were otherwise minded to uphold the appeal and grant development consent. The Council was required to prepare such draft conditions under Pt 13 r 16(e) of the Land and Environment Court Rules 1996.

13 These draft conditions were tendered at the on-site hearing, being marked as exhibit A. Of relevance to Mr and Mrs Walton’s current application under s 96 of the EPA Act are condition 4, dealing with the provision of an evacuation plan on the rear of the door of each guest bedroom, and condition 5, dealing with the provision of three off street car parking spaces for residents and guests.

14 At the on-site hearing Commissioner Moore was informed by the parties’ legal representatives that the matters in dispute in the proceedings between the parties had been reduced to only one. This related to the requirement by the Council that a sign be erected next to the front door of the premises.

15 Commissioner Moore determined that the sign was inappropriate: see paras 2 and 3 of his judgment in Walton v Blacktown City Council [2006] NSWLEC 65 (8 February 2006).

16 Of relevance to Mr and Mrs Walton’s current s 96 application is the fact that no issue was raised in relation to conditions 4 and 5 of the draft conditions or generally to the issue of signposting of the off street car parking spaces.

17 I have mentioned earlier that an appeal under s 97 of the EPA Act is a re-hearing and the Court, in this case constituted by a single commissioner, has all of the functions and discretions of the consent authority in determining whether consent ought to be granted to the development application and, if so, on what conditions.

18 Commissioner Moore, exercising those functions and discretions, considered that, although consent ought to be granted for the increase in the number of bedrooms, it was desirable to consolidate the earlier development consent for the bed and breakfast establishment with any new consent. In this way, there would be one consolidated consent incorporating, inter alia, the matters in the earlier, currently operative consent for the lower occupancy level and clarifying a number of matters: see Walton v Blacktown City Council [2006] NSWLEC 65 (8 February 2006) at [4].

19 Commissioner Moore gave the parties an opportunity to finalise the conditions for the consolidated consent. He adjourned the proceedings for further hearing.

20 On 22 February 2006, the Council filed in court, at a call-over before the Registrar, proposed conditions for a consolidated consent. Of relevance to Mr and Mrs Walton’s s 96 application are conditions 6 and 7.

21 Condition 6 dealt with the evacuation plan. It was in the same terms as the originally proposed condition 4 that had been in the draft without prejudice conditions tendered at the hearing on 8 February 2006.

22 Condition 7 dealt with the provision off-street car parking. It is in slightly different terms to the originally proposed condition 5. Condition 7 provided:

“7. A total of three (3) off-street car parking spaces shall be provided for residents and guests and shall be signposted accordingly. The remaining space in the open shall be reserved for use by permanent residents of the premises.”

23 Mr and Mrs Walton wished to oppose a number of the conditions proposed by the Council in this latest version of the draft conditions. Accordingly, the Registrar fixed the proceedings for a further hearing in court before Commissioner Moore. Initially the hearing was fixed for 5 April 2006 but this date was later changed to 19 April 2006.

24 On 19 April 2006, Commissioner Moore continued the hearing dealing with each of the proposed conditions contested by Mr and Mrs Walton. On this occasion Mr Walton appeared for himself and his wife. Mr Kelso, solicitor, appeared for the Council. Of relevance to Mr and Mrs Walton’s current s 96 application, is the fact that Mr and Mrs Walton challenged conditions 6 and 7.

25 In relation to condition 6, Mr and Mrs Walton opposed the condition primarily on the basis that it was not founded on a requirement in any legal planning document: see Walton v Blacktown City Council (No 2) [2006] NSWLEC 345 (19 April 2006) at [15].

26 In relation to condition 7, Mr and Mrs Walton opposed the condition in at least two respects. First, they wanted the number of off-street car parking spaces to be reduced from three to two. Secondly, they wanted to not have parking signage differentiating between the owners’ parking space and the guests’ parking spaces.

27 Commissioner Moore dealt with Mr and Mrs Walton’s challenge to each of these conditions, amongst other conditions.

28 In relation to proposed conditions 6, Commissioner Moore held:

“16. I accept that it is not founded on any planning requirement. I also, however, accept that it is desirable public policy that these notices be provided, particularly as, on Mr Walton’s own statement, his premises are used from time to time by disadvantaged or distressed persons in the community. I am satisfied that it is a matter of sound public policy and public safety that this be required and I impose the condition as proposed by the council.”

29 In relation to proposed condition 7, Commissioner Moore held:

“17 Condition 7, as originally proposed by the council, required three off-street carparking spaces for residents and guests with two of them to be for guests and one be reserved for the use by permanent residents of the premises and sign posting noting the guest spaces. The draft condition did not take into account the fact that there were two further carparking spaces on site in the garage but that these spaces were being used by Mr and Mrs Walton for storage purposes, a course of events which they wished to continue to have available to them.
18 As a consequence, I proposed that the clause, for the purposes of discussion, should be re-worded to read as follows:

‘7 total of three off-street carparking spaces in the open in addition to the two spaces in the garage shall be provided for residents and guests. Two of the spaces in the open shall be allocated to and available for guests and shall be sign posted accordingly. The remaining space in the open shall be reserved for and available for use by permanent residents of the premises.’
19. I am satisfied that there is no specific requirement in Part A of the Blacktown Development Control Plan 1992 (the DCP) setting a numerical requirement for premises of this nature in a residential area or generally. The notes to table 5.1 of the DCP say, in the first note:
‘For activities not specifically mentioned, carparking requirements will be determined on the merits of the application.’

20 The 1992 consent required four carparking spaces.
21 Having reviewed Mr and Mrs Walton’s objections to providing that number of spaces in this application, the council has agreed to three spaces being available in a usable form, having considered matters such as the proximity to public transport.
22 Mr Walton’s objection, as I have understood it, is not to the provision of three carparking spaces by itself, although he has raised concerns about that matter in the past, but his principal objection is the reservation of one of the spaces for the use by the permanent residents. I deal with the first matter first.
23 I am satisfied, having regard to the fact that there are four usable guest rooms in the upper level of the premises together with a residence presently occupied by the Walton family on the ground floor, that it would be reasonable to require three off-street parking spaces as a minimum. Indeed, I indicated to Mr Walton that, had the council not indicated a preparedness to accept three spaces, I would have been minded to impose the earlier, higher number.
24 Having concluded that, on the merits of the application, it was appropriate to require three off-street carparking spaces, I turn to consider Mr Walton’s objections to one of those being reserved for the permanent residents.
25 I am satisfied that, as the permanent residents’ vehicle will be that most likely to be constantly parked at the premises, it is appropriate and desirable that it be parked off the street.
26 I am satisfied that if, from time to time, there is overflow parking required and Mr Walton is unable to accommodate that on the site::
• such car parking should be off the street;
• it will be available on the street; but
• the permanent residents’ vehicle should be off the street on a regular basis.

27 I am, therefore, satisfied the clause as re-worded by me is the appropriate version.”

30 Commissioner Moore gave judgment at the conclusion of the hearing. He upheld the appeal and granted development consent subject to conditions. The conditions of consent included condition 5, dealing with the evacuation plan, and condition 6, dealing with the off-street car parking spaces in the re-worded version that he had stated in the judgment.

31 For accuracy, the conditions that were the subject of the orders of relevance to this s 96 application are as follows:

“5. An evacuation plan shall be provided on the rear of the door of each guest bedroom showing the path of egress in the event of an emergency. This condition must be satisfied prior to commencement of use of the third and fourth guest bedrooms.

6. A total of three (3) off-street car parking spaces in the open in addition to the two (2) spaces in the garage shall be provided for residents and guests. Two (2) of the spaces in the open shall be allocated to guests and shall be signposted accordingly. The remaining space in the open shall be reserved for use by permanent residents of the premises.”

32 The orders of the Court were entered.

33 Mr and Mrs Walton were dissatisfied with Commissioner Moore’s decision, particularly in rejecting their arguments in relation to conditions 5 and 6.

The modification application

34 On 15 May 2006, Mr and Mrs Walton lodged an application under s 96 of the Act to modify the consent granted by the Court. Because the Court had granted the development consent, the s 96 application could be made directly to the Court rather than to the council with an appeal to this Court.

35 The 96 application set out in response to the question on the form to “give details of the manner and extent of the modifications” the following: s 96(8) of the Land and Environment Court Act 1979.

“• evacuation plans on bedroom doors
• car parking signage
• parking for the 3 cars should be the 2 cars
• change in classification of buildings and structures A 3.2 classification class 1b(ii)
• question Commissioner Moore saying my letter to Mr Glen Apps was rude.”

36 Although not stated on the s 96 application itself, it was common ground that the application was made pursuant to s 96(1A) of the EPA Act.

The hearing

37 The s 96 application was fixed for hearing on 12 July 2006. The Court was constituted by myself and I have been assisted by Commissioner Moore.

38 At the hearing, Mr Walton appeared for himself and his wife. Mr Kelso, solicitor, appeared for the Council.

39 At the commencement of the hearing I asked Mr Walton to identify precisely the modifications to the development consent granted by the Court that he is seeking in the s 96 application. Mr Walton stated the modifications are as follows:

(a) delete condition 6 and substitute a new condition 6 which reads as follows:

“A total of two off-street car parking spaces in the open”.

(b) delete condition 5 entirely.

40 Mr Walton submitted these modifications would:

(a) reduce the number of off-street car parking spaces from three to two;

(b) remove the requirement for signposting of the car parking spaces; and

(c) remove the requirement to provide a fire evacuation plan.

41 I asked Mr Walton to confirm that there were no other modifications to the consent granted by the Court that he wanted to make in the s 96 application. Mr Walton read aloud the conditions of consent and commented on them as he went. At the conclusion of this process, Mr Walton confirmed that there were no other modifications to the consent granted by the Court that he was seeking in the s 96 application.

42 Having settled upon what modifications were the subject of the s 96 application, Mr Walton tendered the evidence upon which he wished to rely in support of the s 96 application. He tendered two statements written by himself: first, a statement dated 4 July 2006 (exhibit A) and secondly, a statement dated 14 May 2006 (exhibit B). The latter document, Mr Walton said, he had wanted to tender before Commissioner Moore at the continuation of the hearing on 19 April 2006 but the tender had been rejected.

43 Mr Walton stated he did not wish to tender any other documents than those two statements. He also stated that he did not wish to call any oral evidence.

44 Mr Kelso tendered Blacktown Local Environmental Plan 1988 (exhibit 1) and Blacktown Development Control Plan 1992 (exhibit 2). Mr Kelso indicated that he did not wish to cross-examine Mr Walton on his two statements.

The applicant’s submissions

45 Mr Walton then made submissions. These submissions, to a large extent, involved reading his two statements (exhibits A and B) in respect of each of the three modifications that are the subject of the s 96 application. In essence, Mr Walton’s submissions are as follows.

46 His first submission related to the reduction in the specified number of off-street car parking spaces. Physically, there is a paved area in the front yard of the guesthouse capable of parking five cars. Mr Walton has no intention to reduce that area. The condition imposed by the Court requires the marking and provision of three spaces in that area. Mr Walton has no issue but that such marking is reasonably practicable and able to be readily achieved. Mr Walton takes no objection on the grounds of cost. Mr Walton’s objection is ideological. He objects to being required by the condition to do something which he says is not expressly stated in “the rules” as needing to be done. The rules to which Mr Walton referred include Blacktown Local Environmental Plan 1988 and Blacktown Development Control Plan 1992.

47 Blacktown Local Environmental Plan 1988 specifies, in Schedule 7 dealing with complying development, in item 2 relating to the development of bed and breakfast establishments, that the parking required is:

“Provision of one off-street parking space per guest bedroom, for each additional guest bedroom exceeding 1.”

48 Applying this formula to Mr and Mrs Walton’s guesthouse, a total of three car parking spaces would be required.

49 Blacktown Development Control Plan 1992 provides in Pt A, s 5 car parking, p A-26, note to table 5.1, that for activities not specifically mentioned, car parking requirements will be determined on the merits of the application. Bed and breakfast establishments are not mentioned in the table.

50 Mr Walton submits that the condition which requires three off-street car parking spaces cannot be founded in Blacktown Development Control Plan because bed and breakfast establishments are not specified and no requirements for car parking are stated for bed and breakfast establishments. Mr Walton does not accept the note which says that car parking for activities not specified can be determined on the merits. In his view, only if there is a specification is there any entitlement to impose a requirement for car parking spaces.

51 In relation to Blacktown Local Environmental Plan, Mr Walton accepts that Sch 7 does specify, when applied to Mr and Mr Walton’s guesthouse, three car parking spaces. However, Mr Walton says that this is in total and not only for guests. However, Mr Walton relies on a practice, apparently communicated to him, of the Council to reduce the number of car parking spaces for developments in close proximity to public transport. Mr Walton submits that their guesthouse is in close proximity to Blacktown railway station. Accordingly, the number of car parking spaces should be reduced from three to two. Mr Walton submits one of those two should be for permanent residents, leaving the other for guests of the guesthouse.

52 Mr Walton’s second submission related to providing signage for the car parking spaces. Mr Walton accepts that signage is reasonably practicable and can readily be provided at a modest cost. Again, however, Mr Walton’s objection is ideological. He submits that there is no requirement to provide signage in any of “the rules”, including Blacktown Local Environmental Plan or Blacktown Development Control Plan. He submits it is not necessary because guests and he and his wife will know where to park without signage. Furthermore, guests and he and his wife should have the freedom to park where they wish without being controlled by signage.

53 Mr Walton’s third submission related to the provision of the fire evacuation plan. Mr Walton accepts that a fire evacuation plan could be provided on the rear of each of the bedroom doors and could be done with modest cost. Again, Mr Walton’s objection is ideological. He says “the rules” do not require the provision of fire evacuation plans for a building of the nature of their bed and breakfast establishment. The rules to which Mr Walton refers in relation to this issue are said to be contained in the Building Code of Australia.

54 The Building Code of Australia provides for classification of various buildings. Mr and Mrs Walton’s guesthouse would fall within class 1b. For a class 1b building, the Building Code of Australia does not specify expressly that a fire evacuation plan needs to be provided on the rear of bedroom doors. For completeness, neither Blacktown Local Environmental Plan nor Blacktown Development Control Plan state expressly that a fire evacuation plan is required. The Act and the Regulations also do not so specify. Commissioner Moore so held in para 16 of his second decision: Walton v Blacktown City Council (No 2) [2006] NSWLEC 345 (19 April 2006).

55 Mr Walton submits that because none of the rules expressly state that a fire evacuation plan must be provided, there is no justification to so require the provision of a fire evacuation plan.

56 For these reasons, Mr and Mrs Walton submit that the conditions that are the subject of the s 96 modification should be modified.

The Council’s submissions

57 Mr Kelso submitted that the s 96 application should be refused for two reasons.

58 First, as a matter of discretion, the Court would refuse the application because there has been no change in circumstances from the time of the Court’s decision on 19 April 2006 to date which would justify modifying the consent. Each of Mr and Mr Walton’s proposed modifications were either argued or able to be argued at the hearings of the s 97 appeal before Commissioner Moore. Mr Kelso cited the cases of Progress and Securities Pty Limited v North Sydney Municipal Council (1988) 66 LGRA 236 and International Trucks Australia Pty Limited v Blacktown City Council [1997] NSWLEC 56 (16 March 1999) at [15] - [18].

59 Secondly, Mr Kelso submitted the Court would refuse the s 96 application on the merits for the same reasons that Commissioner Moore gave in his second decision.

60 Mr Walton made submissions in reply, essentially reiterating the points he had made in-chief.

The Court’s determination

61 I have determined that the s 96 application should be refused, both in the exercise of my discretion and on the merits.

62 The chronology I have given above well illustrates that the matters that are now challenged by Mr and Mrs Walton in their s 96 application have been litigated before. Mr and Mrs Walton have had ample opportunity to put their arguments on these issues and have availed themselves of that opportunity. Each of their arguments that has been put in relation to the conditions sought to be modified on this s 96 application has been dealt with before by the Court in the s 97 appeal.

63 Nothing has changed after Commissioner Moore’s decision of 19 April 2006. The arguments put by Mr Walton, summarised in his statements that became exhibits A and B, do not refer to any circumstance that has occurred subsequent to Commissioner Moore’s decision.

64 An application under s 96 of the EPA Act is not the appropriate vehicle to seek a re-hearing on the merits of a decision of the Court on a s 97 appeal, unless there has been some material change in circumstance or something has been revealed which was not known at the time of the hearing of the s 97 appeal: see generally Progress and Securities v North Sydney Municipal Council (1988) 66 LGRA 236 at 243, 245 and 246.

65 I would also reject the s 96 application on the merits.

66 In relation to the number of car parking spaces, the marking and provision of two spaces for guests and one for the permanent residents, in an area capable of accommodating five spaces, is in my opinion a reasonable requirement. The schedule to which Mr Walton refers in Blacktown Local Environmental Plan would require three car parking spaces. Contrary to Mr Walton’s submission, this must be interpreted as three car parking spaces for guests. That is plain from the fact that in the formula the number of car parking spaces is proportionate to the number of guest bedrooms. A reduction from three car parking spaces to two car parking spaces for guests, as would be required by the condition imposed by the Court, does taken into account the factor of the close proximity of the guesthouse to public transport. The marking and provision of a car parking space for the permanent residents is also a reasonable requirement. I, therefore, decline to decrease the number of car parking spaces that were imposed by condition 6 of the consent.

67 Having marked and provided the car parking spaces, it is in my opinion only reasonable to require signage indicating the existence and the intended purpose of those spaces. The signs can be discreet and tasteful. They need not be ugly or detract from the amenity of the front yard of Mr and Mrs Walton’s guesthouse. The fact that signage is not specified expressly in either the Blacktown Local Environmental Plan or Blacktown Development Control Plan is irrelevant. Those documents do not exhaust a consent authority’s power to impose conditions on a development consent. Sections 80 and 80A of the EPA Act permit a consent authority to impose conditions in relation to planning matters notwithstanding that those matters are not expressly required to be included in conditions by any relevant environmental planning instrument or development control plan. I decline to delete from condition 6 of the consent the requirement for signage.

68 In relation to the provision of the fire evacuation plan, again, the fact that the Building Code of Australia does not expressly require the provision of such plans for a class 1b building does not preclude a consent authority from imposing such requirements exercising the powers under ss 80 and 80A of the Act. There are sound public policy reasons for requesting the provision of a fire evacuation plan in a guesthouse. These were summarised by Commissioner Moore in para 16 of his second judgment. I agree. I decline to delete condition 5 of the consent.

69 For these reasons, the s 96 application should be refused.

Costs

70 The Council made application for costs in the event that the Court refused the s 96 application. Mr and Mrs Walton opposed the Council’s application for costs. Section 69(2) of the Land and Environment Court Act provides that, subject to the Rules, costs are in the discretion of the Court and the Court may determine by whom and to what extent costs are to be paid.

71 Part 16 r 4 of the Land and Environment Court Rules 1996 applies to proceedings under, inter alia, s 96 of the EPA Act: see Pt 16 r 4(1). Pt 16 r 4(2) provides:

“No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of a particular case, fair and reasonable.”

72 The approach embodied in Pt 16 r 4(2) of the Rules is that an order for costs will not be made in class 1 proceedings unless the Court considers the making of a costs order is, in the circumstances of a particular case, fair and reasonable: see Statewide Developments Pty Limited v Minister for Infrastructure and Planning (2005) 142 LGERA 154 at 156 [4], Aldi Food Pty Limited v Holroyd City Council (2005) 142 LGERA 141 at 144 [5] and Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [12] - [14].

73 An examination of the cases reveals a variety of circumstances where courts have considered that it would be fair and reasonable to make an order for costs. Amongst these circumstances are where the defence of the proceedings has been commenced or continued in circumstances where the applicant or respondent respectively, properly advised, should have known that it has no chance or very poor prospects of success: see Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [15(f)] and cases therein cited.

74 Mr Kelso submits that Mr and Mrs Walton’s s 96 application was doomed to failure. It fell within the category of cases where it is fair and reasonable for the Court to make an order for costs. Furthermore, Mr Kelso submits that the Council put Mr and Mrs Walton on notice at the earliest available opportunity that their case was doomed to failure and that costs would be sought against them.

75 Mr Kelso wrote to Mr and Mrs Walton on 23 May 2006 stating that the s 96 application was doomed to failure. The reason stated was that there had been no change in circumstances since the conditions of consent were imposed by the Court and that the application was no more than an attempt to appeal against the conditions. Mr Kelso invited Mr and Mrs Walton to withdraw their application at or before the initial return of the s 96 application before the Court on 28 June 2006. If Mr and Mrs Walton failed to withdraw their application, and the Court refused their application, the Council stated it would seek its costs of the application.

76 On 23 May 2006, Mr Walton replied to Mr Kelso’s letter of 23 May 2006. Amongst the other matters he raised, Mr Walton said:

“I also don’t understand the words:
‘there has been no change in circumstances since then’
This appears to be correct, but I don’t understand why you said this.”

77 On 26 May 2006, Mr Kelso again wrote to Mr and Mrs Walton pointing out that the reason why the Council said the application was doomed to failure was that there had been no change in circumstances since the Court imposed the conditions that were now the subject of the s 96 application. Mr Kelso said:

“2. What you have sought to do is to apply to modify some of the conditions imposed by the Court (plus 2 unsupportable ‘modifications’ as mentioned in our last letter). The Court has consistently said that, before it will modify a condition which it has imposed, the applicant must show that something has changed since the condition was imposed to justify the Court in modifying it. This is what we meant by the need to show a ‘change in circumstances’, the fact is that nothing relevant to the conditions in question has happened since those conditions were imposed on 21 April last.”

78 Mr Kelso again gave notice that the Council would be seeking its costs if Mr and Mrs Walton did not withdraw their application.

79 On 2 June 2006, Mr Walton replied to Mr Kelso’s letter. He stated that Mr and Mrs Walton would be pursuing their current application.

80 On 14 June 2006, Mr Kelso responded, once again giving notice that Mr and Mrs Walton’s decision to proceed with the application is at their own risk in relation to costs if they are unsuccessful.

81 I have determined that in the particular circumstances of this case it would not be both fair and reasonable to award costs of this s 96 application. The s 96 application probably did have poor prospects of success, for the reasons I have given. However, Mr and Mrs Walton are lay persons who could not be expected to know the planning law and judicial decisions relating to s 96 applications. Although Mr Kelso fairly tried to give notice through his letters of the likely outcome and provide a reason for that outcome (that there has been no change in circumstances), the terms of that notice would perhaps only be properly understood by a person with some knowledge of the planning law and judicial decisions. Mr Walton evidently did not understand the significance of what he was being told by Mr Kelso, as evidenced by his question in his letter of 24 May 2006 stating that he did not understand the reference to the need for a change in circumstances and why Mr Kelso said there had been no change in circumstances.

82 At Talbot J said in Aldi Food Pty Limited v Holroyd City Council (2005) 142 LGERA 141 at 144 [5]:

“...costs will not be awarded in the proceedings referred to in Part 16 rule 4 unless it is fair and reasonable to depart from the underlying assumption in the circumstances of the particular case. Reasonableness is to be determined according to the ordinary sense of the word. The award for costs has to be fair as well as reasonable. Thus not only must it be reasonable for costs to be awarded but it must also be just and equitable.”

83 Looking at all of the circumstances of this s 96 application, including the background and history to it, I have not been persuaded that it is not only reasonable for costs to be awarded but that it is just and equitable for costs to be awarded. Accordingly, I consider that the proper order in the particular circumstances of this case is that each party should pay their own costs of the s 96 application.

Orders

84 The orders of the Court are, therefore:

1. The application is dismissed;
2. Each party is to pay their own costs of the application;
3. The exhibits can be returned to the parties.

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