Altomonte v Hunters Hill Council

Land and Environment Court (NSW)|2002-06-07|Before: Pain J

Introduction

In these proceedings the Applicant seeks an Order for costs in Class 1 proceedings decided by Commissioner Murrell on 12 December 2001. The proceedings concerned an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against an Order issued by Hunters Hill Council (the Council) under s 121B of the EP&A Act requiring the demolition of a fence adjoining the foreshore to the Lane Cove River (the Order).

By Notice of Intention to Issue an Order dated 25 January 2001, the Council gave the Applicant notice of its intention to serve an Order under s 121B of the EP&A Act. The Notice of Intention stated that the Council proposed a period of 14 days from the time the Order issued as the period of compliance. By letter dated 9 February 2001 from the Applicant to the Council, the Applicant asserted that the Notice was invalid and that the Council had no power to issue an Order in reliance on the Notice. The Order was issued on 16 July 2001. The Order specified a period of seven days from the date of the Order as the period of compliance. The Applicant appealed against the Order in Class 1 proceedings.

The Applicant filed a Statement of Issues which raised a number of matters concerning whether the Order was invalid due to: (a) failure to afford the Applicant a reasonable period in which to comply therewith; (b) failure to give proper reasons for the giving of the Order; (c) failure on the Respondent's part prior to the giving of the Order to give consideration, or to give real consideration, to representations made to the Respondent by the Applicant concerning the subject matter of the same contrary to and in breach of the statute therein made and provided. .
A further issue raised in the Statement of Issues was whether the demolition of the fence as required by the Order was reasonable in the circumstances. When the matter came before Commissioner Murrell it was noted that the Statement of Issues raised questions relevant to the legal validity of the Order issued by the Council under s 121B of the EP&A Act.

In her decision Commissioner Murrell formed a view about the issues raised in the Statement of Issues. She found that the Council had not complied with the provisions for the issuing of the Order laid out under the EP&A Act. The areas of non-compliance identified by Commissioner Murrell were that the seven day period specified for compliance with the Order was an unreasonable period of time in which to comply, and there was no real attempt to provide the opportunity for representations to be made by the Applicant. Commissioner Murrell's conclusions were based in part on the admission in cross-examination by the Council's town planner that the period of seven days was unreasonable.

Commissioner Murrell referred to the decision of Talbot J in Barnes v Dungog Shire Council (1999) 103 LGERA 269 where his Honour stated: the failure to strictly comply with the precondition in s 121J had the consequence that the act of giving the Order was invalid . She noted, however, that it is outside the role of a Commissioner to make a declaration as to the validity of the Order, that being a point of law.
Commissioner Murrell then went on to consider the merits of the Order relating to whether or not the Applicant's fence should be demolished. In the circumstances Commissioner Murrell formed the view that the fence should not be demolished and upheld the Applicant's appeal. The Parties' submissions
In the question of costs before me, it was agreed by the parties and is trite law that s 69(2) of the Land and Environment Court Act 1979 provides wide discretion to the Court to decide issues related to the award of costs. In seeking costs the Applicant and the Council both referred the Court to the Practice Direction 1993, par 10, Costs in Class 1 and 2, which provides that: The practice of the Court is that no order for Costs is made in planning and building appeals unless the circumstances are exceptional.
The decision of the Court of Appeal in Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376 was referred to. In that decision the Court of Appeal overruled the application of par 10A of the Court's Practice Direction 1993 (the Practice Direction). Paragraph 10A dealt with costs in Class 3 valuation matters in similar terms to par 10. Further decisions on costs in Classes 1 and 2 which have been decided in this Court since Maurici have held that par 10 of the Practice Direction is indicative of the Court's long standing practice in awarding costs in Class 1 and 2 matters which concern planning and building appeal matters; Wilson on behalf of the Gurrungigar Environment Group v Bourke Shire Council and ors [2001] NSWLEC 200, Oosthuizen v Sutherland Shire Council [2001] NSWLEC 137.

It is the Applicant's case that in the situation before me there are exceptional circumstances warranting an award of costs. The Applicant sought to rely on Barnes v Dungog Shire Council (1999) 103 LGERA 269 and the decision of Bignold J in Van Haasteren v South Sydney Council [2000] NSWLEC 168, which emphasise the mandatory nature of the requirements under the EP&A Act when issuing Orders under Division 2A of that Act.

The Applicant argues that it raised clearly in the Statement of Issues the questions of law going to the validity of the order under s 121B of the EP&A Act, but these were not dealt with prior to the hearing on the merits because the Court Registrar listed the matter before a Commissioner alone.

The Applicant argued that the nature of these proceedings, dealing with the validity on the merits of an Order issued under s 121B of the EP&A Act, should be distinguished from the planning and building appeals which the Practice Direction refers to. The implication of this seemed to be that the nature of this kind of Order meant that it had more serious consequences than a planning or building appeal. One further inference the Court drew from the Applicant's submission was that exceptional circumstances were therefore more likely to be found in these kinds of matters where there was some "error" on the part of the Council. The Applicant referred to the decision of McEwen AJ in Care v Canterbury City Council (2001) 115 LGERA 252 in this regard. That case concerned an application for costs in an appeal against an Order issued by the Respondent under s 121B of the EP&A Act requiring that the owners of the premises cease using those premises for a particular activity. The judgment of McEwen AJ at 257 states: Although this is a class 1 matter I do not regard it as falling into the ordinary matters dealt with in class 1 insofar as it is not a building or planning appeal, further we are dealing with a notice given under a statute, the effects of which can be far reaching and serious.
McEwen AJ, after reviewing the circumstances giving rise to the Order, found that the circumstances of the issuing of the Order were in his opinion out of the ordinary and were exceptional, applying the Practice Direction, par 10, and awarded costs to the Applicant.

The Council argued the circumstances of this case were not exceptional. There was time to have the legal questions determined before the merits case but this opportunity was not availed of by the Applicant.

The Council referred to the decision of Lloyd J in Prince v North Sydney Council (2001) 115 LGERA 65. In Prince, the Respondent had sought costs arguing that exceptional circumstances existed. The Respondent essentially relied on two factors. Firstly, the Applicant persisted in bringing the appeal despite the fact that the Respondent had written to the Applicant two days before the hearing stating that it would not take any further action to enforce the order. Furthermore, that at the hearing the Respondent had stated that it believed there was substantial and satisfactory compliance with the order. Secondly, that the Applicant had misled the Council and the Court in the Applicant's claim for expenses and by submitting a report that was not authentic. Lloyd J held that exceptional circumstances did not exist.

The decision of Pearlman J in CSR Limited v Fairfield City Council and Anor [2001] NSWLEC 221 was also referred to by the Council. This was a Class 1 Appeal against a deemed refusal to grant an extension of a period of time specified in a condition of a development consent. A preliminary issue of law was decided in favour of the Respondents. Pearlman J held that raising a preliminary question of law in Class 1 proceedings is only a factor to be taken into account in considering whether there are exceptional circumstances. Pearlman J did award costs in the matter, finding the circumstances were exceptional. It should be noted that case did not deal with an Order under s 121B of the EP&A Act. Does the 1993 Practice Direction apply?
It seems to me the issue arises as to whether the Practice Direction par 10 applies at all. The question is whether appeals against statutory Orders in Class 1 and 2 are different from building or planning appeals, as referred to in par 10 of the Practice Direction. The Applicant did raise the issue of whether, applying the Practice Direction, appeals against enforcement orders ought be treated differently in that context. It seems to me that I must consider a more fundamental issue, whether the Practice Direction, par 10 applies at all in these kinds of matters.

Since the hearing in this matter, Cowdroy J has handed down his decision in Misra v Campbelltown City Council No 2 [Costs] [2002] NSWLEC 63 on 8 May 2002. That case also concerned an Order issued by a Council under s 121B of the EP&A Act. The Council in Misra submitted the Practice Direction did not apply because of, firstly, the decision in Maurici and, secondly, the Practice Direction, par 10 refers to "planning and building appeals" and an Order pursuant to s 121B of the EP&A Act is not of the same nature of proceedings. Rather such Orders are directed to the enforcement of a planning law located, as s 121B is, in Pt 6 "Implementation and enforcement" of the EP&A Act.

The decision of this Court in Gardiner & Anor v Hornsby Shire Council [2000] NSWLEC 37 was referred to by his Honour. In Gardiner the Chief Judge held that an appeal from an Order issued by a council to enforce a breach of the planning law was not a planning or building appeal. Gardiner related, amongst other matters, to an appeal under s 180 of the Local Government Act 1993 (the LG Act) against an order issued under s 124 of that Act. Her Honour did not apply the Practice Direction but rather applied general principles on costs and awarded costs in that case. Cowdroy J, following the decision of her Honour in Gardiner, also determined that the appeal against the s 121B Order did not constitute a building or planning appeal. Accordingly, the Practice Direction did not apply and exceptional circumstances were not required to be shown before an order for costs is made.

Orders under s 124 of the LG Act are similar in nature to Orders under s 121B of the EP&A Act (the section in issue in this case, Care and Misra). The sections under the respective Acts relating to both types of Orders give a Council power to order a specified person to do or refrain from doing a specified thing; specify almost identical requirements for a Council to follow before they issue an order; confer a right of appeal on a person issued with an order; and specify that failure to comply with an order constitutes an offence.

I note the decision in Prince concerned an appeal under s 180 of the LG Act against an order under s 124 of that Act, as was the case in Gardiner. It should be noted that Lloyd J also considered the possibility that cl 10 of the Practice Direction no longer applied so that it was relevant to consider the general practice of the Court in awarding costs in the past. His Honour found on that occasion that the usual practice was that in the exercise of the Court's discretion on costs there would be no order unless there were exceptional circumstances.

There are now decisions of this Court suggesting the Practice Direction, par 10, does not necessarily apply to costs in appeals against enforcement Orders under the EP&A Act and the LG Act so that I do not think the Practice Direction applies in this case. Accordingly, the Court's discretion must be exercised under s 69(2) of the Land and Environment Court Act 1979. I do not think the Applicant needs to demonstrate exceptional circumstances before an order for costs is made.

In this case the Applicant was successful before Commissioner Murrell at first instance on "merits" grounds and, arguably, on legal grounds. In these circumstances I consider it is appropriate to make an award of costs in the Applicant's favour. Orders

The Respondent pay the Applicant's costs in these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Altomonte v Hunters Hill Council [2002] NSWLEC 65 APPLICANT A Altomonte PARTIES : RESPONDENT Hunters Hill Council FILE NUMBER(S) : 10585 of 2001 CORAM: Pain J KEY ISSUES: Costs :- Class 1 proceedings - whether Order under s 121B of the Environmental Planning and Assessment Act 1979 is a "planning and building appeal" - does Practice Direction 1993 par 10 apply - whether costs should be awarded Environmental Planning and Assessment Act 1979 s 121B, s 121ZK LEGISLATION CITED: Land and Environment Court Act 1979 s 69 Local Government Act 1993 s 124, s 180 Practice Direction par 10, par 10A Barnes v Dungog Shire Council [1999] NSWLEC 146; (1999) 103 LGERA 269 ; Care v Canterbury City Council (2001) 115 LGERA 252 ; CSR Limited v Fairfield City Council and Anor [2001] NSWLEC 221; Gardiner & Anor v Hornsby Shire Council [2000] NSWLEC 37; CASES CITED: Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376 ; Misra v Campbelltown City Council No 2 [Costs] [2002] NSWLEC 63; Oosthuzien v Sutherland Shire Council [2001] NSWLEC 137; Prince v North Sydney Council (2001) 115 LGERA 65; Van Haasteren v South Sydney Council [2000] NSWLEC 168; Wilson on behalf of the Gurrungigar Environment Group v Bourke Shire Council and ors [2001] NSWLEC 200 DATES OF HEARING: 08/04/2002 DATE OF JUDGMENT: 06/07/2002

(1999) 103 LGERA 269

(2001) 115 LGERA 252

(2001) 114 LGERA 376

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