Boensch v Parramatta City Council

The separate question issue 5The issue identified for separate determination arose from a contention by the Council that a development consent that it had granted on 8 May 1998 (the 1998 Consent) had lapsed. That Consent had authorised the erection of a four level building on the Land to be used for motor vehicle storage and repairs together with two residential units. The development applications that were the subject of the present appeals assumed that the 1998 Consent remained operative despite the fact that the building to which that Consent related had not been constructed. If the 1998 Consent had lapsed by operation of s 95 of the EPA Act, there was no building to alter and use in the manner intended by the present development applications. 6That general description of the issue identified for separate determination requires elaboration. However, it will be apparent that a determination sustaining the Council's contention would have been sufficient to dispose of the appeals without the necessity to embark upon a merits hearing.

The 1998 Consent and its implementation 7The 1998 Consent was granted subject to a number of conditions. Conditions 17 and 22 are of present relevance. They provide: "17. The existing lots are to be consolidated into one (1) lot prior to release of the building plans. To expedite the processing of the building application and to comply with this condition, Council is prepared to accept the lodgement of the consolidation plan by the Council's solicitors with the Registrar General, provided the applicant agrees in writing to the payment of the necessary legal fees. Reason: To ensure the development proceeds on one allotment of land. 22. A Compliance Certificate under Section 73 of the Water Board (Corporatisation) Act 1994 is to be submitted to Council prior to release of the linen plan or building approval (whichever is applicable). Reason: To ensure the requirements of Sydney Water have been complied with." 8After the grant of the 1998 Consent, significant amendments were effected to the EPA Act such that the need for a building application was removed and in its place the issue of a construction certificate was required before building work could be commenced. Application for a construction certificate was sought by Mr Boensch and a certificate issued by the Council, as the principal certifying authority, on 31 October 2002. When issuing that certificate not only did the Council stamp, as approved, building plans that were submitted for the purpose but it also imposed a number of conditions. Those of present relevance are Conditions 9, 27, 28 and 29 which respectively provided: "9. A Registered Surveyor's report detailing building position and reduced levels is to be submitted prior to work continuing. Departures from the approved plan will require prior approval. 27. Plans detailing proposed creek improvements shall be submitted to Council prior to the commencement of work. Details shall comply with condition no. 12 of the development consent dated 8 May 1998. 28. Details of proposed external finishes shall be submitted for approval prior to the commencement of work. 29. A plan of beautification shall be submitted to Council for approval prior to the commencement of work. Details shall comply with condition no. 16 of the development consent dated 8 May 1998." 9The eastern boundary of the Land was formed by the bank of a creek. Condition 12 of the 1998 Consent had required that details of proposed creek improvement be submitted to the Council "with the Building Application". It is that condition which is identified in Condition 27 of the Construction Certificate. 10Correspondence passing between Mr Boensch and the Council in early 2003 makes clear that both parties were conscious of the fact that the 1998 Consent would lapse on 8 May 2003 unless work satisfying the requirements of s 95 of the EPA Act were commenced by that date: s 95(1). Initially, Mr Boensch had sought an extension of time but his application in that regard seems not to have been granted, no doubt because the Council lacked power to do so (Exhibit A, Folio 17-20). 11An internal memorandum prepared by a Council officer indicates that the Land was visited on 7 May 2003 when reinforced concrete piers are recorded as "progressing O.K" and that a demolition inspection revealed it to be "satisfactory". Significantly in the context of the present application, on 22 May 2003 a letter was written by the Council to Mr Boensch in the following terms: "I refer to your recent correspondence dated 2 May 2003, and subsequent conversations regarding building works at the abovementioned site. An inspection was carried out by a Council Building Surveyor on the 7 May 2003 which revealed that reinforced concrete pier holes had been poured on site which does constitutes 'substantial commencement of your Development consent DA96/333 dated 8 May 1998." 12The letter written on behalf of the Council was signed by a building surveyor from the "Building Certification Team" (Exhibit A, Folio 22). The heading of the letter written by the building surveyor identified the Land. 13A survey plan dated 5 May 2003 shows survey data identifying the boundaries of the Land and also identifying by survey the location of concrete pier holes within the boundaries of the Land, said to be those that were observed by the building surveyor when the land was inspected on 7 May 2003. There was a contest between the parties as to whether this survey plan was provided to the Council or, if it was, whether a copy was retained within the Council's records. However, it is accepted that within the Council's files relating to the 1998 Consent, a "plan of redefinition" of lots that comprised the Land was prepared in September 1998 showing that detailed survey work had been carried out. That plan has endorsed on it a Council Certificate certifying that the provisions of the Local Government Act 1919 (NSW) and the relevant requirements of the Water Board Act 1987 (NSW) "[had] been complied with by the applicant". Reference in the Certificate is made to DA 96/333 and the Certificate is dated 13 April 1999. The reference "DA 96/333" is a reference to the number assigned by the Council to the 1998 Consent.

Determination of the development applications by the Council 14The two development applications that are the subject of the present proceedings were lodged with the Council on 7 June 2011. Each was accompanied by a Statement of Environmental Effects (the SEE). Under the heading "Background" the SEE refers to those development consents said to apply to the Land, including the 1998 Consent. The SEE then continues: "The building work has substantial [sic] commenced, inspected and certified by Council on the 22 May 2003." The latter statement was clearly a reference to the letter from the Council that I have earlier quoted. 15The development applications made by Mr Boensch were refused by the Council on 12 December 2011. Notification of those determinations was given to Mr Boensch on 15 December 2011, the reasons for refusal of each application being stated in the notice. Neither notice identified the lapsing of the 1998 Consent as a reason for refusal.

Proceedings in this Court 16The Class 1 applications commencing the present appeals to this Court were filed on 12 June 2012. In compliance with the Court's Practice Notes, the Council filed and served its Statement of Facts and Contentions in each matter on 6 July 2012. Contention 1 in each Statement is in the following terms: "1. The current development application seeks to change the use and fit out a floor of a building approved under DA333/1996. The building on which the consent relies has not yet been constructed. It is noted that a Construction Certificate was issued on 31 October 2002, and that a subsequent inspection was carried out on 7 May 2003 by Council building inspectors which confirmed that reinforced concrete pier holes had been poured on the site. It appears no work has been carried out on the site since that time, and no further inspections have been carried out. As development on the site is substantially in the same condition as it was prior to the approval of DA/333/1996, it is considered possible that the development may not have met the physical commencement threshold required by section 95 of the EPA Act and therefore it is possible that consent on which the current proposal relies may have lapsed." 17There was no formal response in the form of any contention in reply by or on behalf of Mr Boensch. Indeed, the evidence at [18] of the affidavit of Susan Hill, the solicitor acting for Mr Boensch, states that in her opinion the contention was not one with which Mr Boensch "should be overly concerned because it did not reflect the legal test regarding the lapsing of a consent particularly in circumstances where the Council had issued the contemporaneous information of commencement of the development". Specific reference is then made to the letter of 22 May 2003. 18The evidence before me does not reveal what steps, if any, were taken in the proceedings during the latter half of 2012. However, a conference convened under s 34 of the Land and Environment Court Act 1979 (NSW) (the Court Act) was held on 6 February and continued on 20 March 2013 when, on the latter date, the conference was terminated. Mr Boensch was then granted leave to amend his plans, which he then did, and the Council given leave to amend its Statement of Facts and Contentions. 19The Council's Amended Statement of Facts and Contentions was provided to Mr Boensch and the Court on 6 May 2013. Contention 1, as originally framed was deleted and the following new contention made: "Proposal depends on a consent that has lapsed due to works subject of that consent being commenced unlawfully, if in fact there have been any such works. 1. The Development Consent relied upon to support the application has lapsed due to any works subject of the consent being commenced unlawfully. The following conditions of Development Consent were required to be satisfied prior to commencement of works or the issue of a Building Application but were not: + Condition 17 - The existing lots were required to be consolidated into one (1) lot prior to the release of the building plans. The site remains two separate lots (Lots 37 and 38 DP14244). + Condition 22 - A compliance certificate under Section 73 of the Water Board (Corporation) Act 1994 was required prior to the release of the linen plan or building approval (whichever was applicable). There is no evidence of the issue of such a certificate. In addition, the following conditions of the Construction Certificate and [sic] were required to be satisfied prior to the commencement of works: + Condition 9 requiring a registered surveyors certificate report detailing building position and reduced levels in accordance with the DA consent. + Condition 27 requiring plans detailing proposed creek improvements. + Condition 28 requiring details of proposed external finishes. + Condition 29 requiring a - plan of beautification of the site treatment including fencing, screening, plants and planting, hard surfacing, garbage receptacles, drying areas and recreation areas." 20After receiving the Amended Statement, Ms Hill, acting for Mr Boensch, advised the Council's solicitor, Mr Drury, that the issue raised by Amended Contention 1 was one that ought to be determined as a "preliminary point". While that course was initially opposed by the Council, it was a course later accepted by it as being appropriate. So much was indicated to the Registrar at a call-over, with the consequence that Mr Boensch was directed to file a notice of motion seeking an order under Pt 28, r 2 of the Uniform Civil Procedure Rules 2005 (NSW) for a separate question to be tried. 21That motion was listed for hearing on 26 June. Prior to the hearing the Council's files were inspected by Ms Hill who subsequently made a request that copies of the files be provided to her. Upon receipt of the copy files from the Council's solicitors, Ms Hill claimed that the files were incomplete. 22Mr Boensch's motion came before Biscoe J. His Honour was made aware of Amended Contention 1 and the argument that such work as may have been carried out by Mr Boensch to implement the 1998 Consent was not work that avoided the lapsing of the Consent under s 95 of the EPA Act because the six conditions identified in the amended Contention had not been satisfied before any work was undertaken. Reference was made by the Council to the decision of the Court of Appeal in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132. His Honour was informed that both parties supported an order for separate determination of the issue tendered by Amended Contention 1, as a determination in favour of the Council would necessitate an order dismissing the present appeals. His Honour was also informed of an issue between the parties as to whether full disclosure of documents either believed to have been or expected to be on the files of the Council had been produced to Ms Hill. 23Having considered the salient facts and the principles applicable to the determination of an application seeking determination of a separate question, on 26 June 2013 Biscoe J acceded to Mr Boensch's motion (Boensch v Parramatta City Council [2013] NSWLEC 94). At [13] his Honour observed that an agreed bundle of documents and agreed statement of facts were required. He also recorded an agreement between the parties that "they should meet promptly in an attempt to narrow the issues in dispute." It would seem from the informal transcript of the hearing with which I have been provided by the Council that this observation was directed to the debate as to whether all documents had been disclosed, coupled with the invitation expressed by Mr Drury, who appeared for the Council before his Honour, that if Mr Boensch held documents satisfying the conditions identified in the amended Contention 1, they should be produced to the Council for consideration. 24Having regard to the submissions made to me, particularly those made on behalf of the Council, it is necessary to set out the orders made by Biscoe J on 26 June. His Honours orders are recorded as having been made by consent and are in the following terms: "(1) Order that the following question arising from Contention 1 of the respondent's Amended Statements of Facts and Contentions be determined as a preliminary point: Whether development consent DA 333/1996 granted by Parramatta City Council pursuant to Notice of Determination dated 8 May 1998 in respect of the property at 255 Victoria Road Rydalmere has lapsed. (2) The applicant is to write to the respondent by 5pm on 26 June 2013 setting out the documents it asserts have not been produced. (3) Council is to produce its files in relation to DA 333/96 and Construction Certificate NT/00222/02 and property file from 1996 to date in hard copy and on disk by 1pm on Friday 28 June 2013. (4) The parties are to meet and confer in an attempt to narrow the issues in dispute on the preliminary question by Friday 5 July 2013. (5) The parties are to file an agreed bundle of documents and an agreed statement of facts with respect to the preliminary question by 12 July 2013. (6) The applicant is to file any affidavits with respect to the preliminary question by 26 July 2013. (7) The respondent to file any affidavits with respect to the preliminary question by 9 August 2013. (8) The applicant to file any affidavits in reply with respect to the preliminary question by 16 August 2013. (9) The parties to file written submissions 3 days before the hearing of the preliminary question. (10) The proceedings are listed for hearing of the preliminary question on 26 August 2013 before a judge or legally qualified commissioner." 25As required by Order (2), Ms Hill advised by email sent on 26 June of the documents asserted to be absent from the copy Council files with which she had been provided. She attached to her email a copy of a Certificate issued under s 73 of the Sydney Water Act 1994 (NSW), being a certificate to which reference is made in Condition 22 of the 1998 Consent. That Condition was identified in the Amended Contention 1 as being a Condition requiring fulfilment prior to any building work being undertaken. The copy Certificate then produced by Ms Hill is dated 3 June 1999. 26Upon that document being produced, the Council conceded that it no longer pressed the failure to comply with Condition 22 as a basis for contending that the 1998 Consent had lapsed. 27As Order (4) of the orders made on 26 June required, the parties met on 5 July in order to address the lapsing issue and the documents said to respond to Amended Contention 1. The meeting then held is described in correspondence as a "without prejudice meeting". Following that meeting the solicitor for the Council advised Ms Hill on 10 July that the Council no longer pressed the contention that Mr Boensch's failure to comply with the conditions 27 and 29 of the Construction Certificate were a basis for contending that the 1998 Consent had lapsed. 28On 6 August 2013, Ms Hill forwarded a number of documents to Mr Drury. They included an advice from Senior Counsel addressing the contention that the 1998 Consent had lapsed, a geotechnical report provided to Mr Boensch in 2002 and a letter from Harrison Friedmann and Associates, Surveyors dated 2 August 2012 with a number of attachments to that letter. The attachments included a copy of the plan of redefinition dated 4 September 1998 to which I have earlier referred as well as a copy of the plan prepared by that firm on 5 May 2003 providing survey detail of the Land and showing the location of four pier holes within the Land. The latter plan is the plan to which I have earlier referred and about which there is said to be uncertainty as to whether it was on the Council's files pertaining to the land prior to service by the Council of its Amended Contentions. 29In response to Ms Hill's email of 6 August, forwarding the documents that I have just described, the Council complained that it did not previously have either the geotechnical information or the survey information provided to its solicitors on 6 August. Relevantly, it denied having the plan prepared by the surveyors on 5 May 2003. 30Notwithstanding this complaint, the Council's solicitors wrote to Ms Hill on 13 August 2013 raising a number of matters directed to the manner in which documents had been supplied. Ultimately, the letter stated at [7]: "In the circumstances the Council agrees that the late material provided by the Applicant is sufficient to demonstrate lawful commencement and that the Court does not need to hear the preliminary point." 31In light of this exchange of correspondence, the separate hearing ordered by Biscoe J did not proceed. None of the steps required by Orders (5) to (10) of the orders made by his Honour on 26 June were required to be addressed. As a result of orders made by consent on 26 August, the Council filed a Further Amended Statement of Contentions deleting any contention asserting that the 1998 Consent had lapsed.

The costs rules 32The appeal proceedings instituted by Mr Boensch were assigned to Class 1 of the Court's jurisdiction. Costs in proceedings in Class 1 are governed by special rules. Although the award of costs is discretionary, as s 98(1) of the Civil Procedure Act 2005 (NSW) provides, the operation of that section is expressed to be subject to rules of court. Part 3, r 3.7 of the Land and Environment Court Rules 2007 (the LECR) contains such a rule. Subrules (2) and (3) are of present relevance. They provide: "(2) 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. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, ... (d) that a party has acted unreasonably in the conduct of the proceedings, ...". 33As the chapeau to subrule (3) makes clear, the circumstances identified in the subrule are not exhaustive of those circumstances that may be considered as fair and reasonable to justify an order for costs. The present circumstances would appear to engage the provisions of paragraph (a) of the subrule. A determination as to whether a consent has lapsed within the meaning of s 95 of the EPA Act involves a question of mixed fact and law. Had the determination been made in favour of the Council's contention, it would have been determinative of the proceedings without the need to undertake any evaluation of the merits of the development applications made by Mr Boensch. 34Nonetheless, it must be recognised that r 3.7(2) of the LECR creates a presumption that in proceedings of the present kind no order for costs should be made. That presumption is only displaced if, in all the circumstances, it can be concluded that it is fair and reasonable to make an order in favour of Mr Boensch. As I understand the submissions made on his behalf, he accepts that in order to succeed it is necessary to demonstrate that the presumptive rule should be displaced.

Outline of competing contentions 35Mr Boensch founds his claim for costs on two broad bases. First, he submits that the Council acted unreasonably in raising the contention that the 1998 Consent had lapsed, having regard to the material available to the Council on that issue. 36Secondly, he submitted that, having raised the issue, the Council "surrendered" when it agreed to withdraw the separate question and accepted that the 1998 Consent was a subsisting development consent. 37For its part, the Council submits that, faced with a development consent that was granted some 15 years ago for the erection of a building that had never been built, it was entitled to test the reliance placed by Mr Boensch upon that consent as founding the development applications presently before the Court. Further, the Council denied that it had "surrendered" by agreeing to withdraw the separate question for determination. Rather, it submitted that it had embarked upon a process of discussion with Mr Boensch concerning the issue as was required of it by the orders of Biscoe J made on 26 June 2013. As a result of the without prejudice discussions held between legal advisors, the Council had agreed to "settle" the issue by agreeing to withdraw it.

An order for costs is fair and reasonable 38For the purpose of determining the application for costs, I accept the submission made on behalf of Mr Boensch that focus must primarily be upon the action of the Council in raising Amended Contention 1 in the terms that it did. The actions of the Council once a determination of the lapsing question had been ordered are, in the circumstances, of less significance. 39The contention that the 1998 Consent had lapsed was significant not only because an adverse determination of the question would result in the present appeals being dismissed but also because such a determination would have the consequence that Mr Boensch could not erect the building that was the subject of that Consent. That significance demonstrates why Amended Contention 1 caused Mr Boensch to incur legal costs in seeking to address it. 40The overriding purpose expressed in s 56 of the Civil Procedure Act that the Court should facilitate "the just, quick and cheap resolution of the real issues in the proceedings" (emphasis added) is no less significant in its application to Class 1 proceedings than it is to other proceedings falling within the Court's jurisdiction. That overriding purpose is reflected in the Court's Practice Note for Class 1 Development Appeals. Schedule B to that Practice Note identifies the requirements for preparation of a statement of facts and contentions by a consent authority. Relevantly, [6] of that Schedule states: "6. In Part B Contentions, the respondent consent authority is to: (a) focus on issues genuinely in dispute; (b) have a reasonable basis for its contentions; ... (d) where it contends that the application must be refused, identify the factual and/or legal basis for that contention ... ". Mr Boensch relies both upon the overriding purpose and the provisions of the Practice Note to which I have referred as the foundation for his primary submission that the raising of the contention was unreasonable. 41I have earlier quoted Contention 1 as it was framed in the Council's original Statement of Contentions filed in July 2012. That contention asserted only the "possibility" that the 1998 Consent had lapsed because it "may not have met the physical commencement threshold required by section 95 of the EPA Act". While the utility of a contention couched in those terms may be questioned, the substance rather than the form of the contention seem to me to invite provision of further information directed to the question of physical commencement of the 1998 Consent. The evidence before me does not demonstrate that any such further information was sought. Equally, the evidence from Ms Hill demonstrates that no information directed to the question was provided on behalf of Mr Boensch until after Amended Contention 1 was served. 42In contrast to the terms in which the 2012 Contention had been framed, as will be apparent from the terms of the Amended Contention 1 that I have earlier quoted, the latter unequivocally asserted that the 1998 Consent had lapsed. The basis for the assertion was that "any works subject of the Consent [had been] commenced unlawfully". That assertion clearly sought to invoke the principle laid down by the Court of Appeal in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc and subsequent decisions to the same effect recently referred to in K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202 at [12]. 43At the time at which the Council filed its Amended Contention 1, there were a number of documents available within its files addressing the 1998 Consent and which, on their face, indicate that the Consent remained operative. The Council submits that even if this is so, it is now entitled to ascertain "the true state of the facts and law to lawfully determine [the present] development application" (written submissions at [3]). It submits that no estoppel arises such as to disentitle it from agitating the question of lapsing, whatever position may previously have been represented to Mr Boensch. 44I accept, as does Mr Boensch, that the Council is not estopped from raising the question of lapsing, or the corollary question of commencement, by reason of any past statement issued on behalf of the Council or other documents that it holds. However, whether estoppel arises seems to me to be largely irrelevant to the present circumstance. The overriding purpose and provisions of the Practice Note to which I have earlier referred required that before raising Amended Contention 1, it was necessary for the Council to have a reasonable basis upon which to found that contention. 45Having regard to the material available to the Council at the time at which these proceedings commenced, I do not accept that it was reasonable for the Council to have raised Amended Contention 1 in the terms in which it was framed. However, before identifying that material, it is appropriate to refer to the provisions of s 95 of the EPA Act, as that section provides the context in which that material must be considered. 46The parties accept that the 1998 Consent lapsed after five years unless "commenced" in the manner required by the section. It is also accepted that the five year period expired on 8 May 2003. At that time, s 95 relevantly provided: "95 Lapsing of Consent (1) A development consent lapses: (a) five years after the date from which it operates, ... ... ... (4) Development consent for: (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section." Although the section has since been amended, neither subss (1) or (4) are materially different from those that I have quoted. 47The first document of present importance is the letter earlier quoted at [11] from the Council to Mr Boensch and dated 22 May 2003. That letter identified building work carried out on the Land, being work authorised by the 1998 Consent. Based upon the inspection to which reference was made, it represented to Mr Boensch that work under the Consent had commenced. There is no other evidence identified within the Council's records that casts any doubt upon the fact of inspection said to have occurred on 7 May 2003 or upon the observations of work recorded as having been undertaken at that time. 48Also contained within the file dealing with the 1998 Consent was the copy of the survey plan referred to as the plan of redefinition to which I have earlier referred at [13]. Not only does it contain a Council Certificate dated April 1999 referring to the 1998 Consent, it demonstrates boundary survey work, particularly along the creek boundary of the Land. That plan would appear to be the subject of an internal report signed on 12 April 1999 by a town planner of the Council (Exhibit B), recommending endorsement or release of the plan. The document describes the plan as "consolidation" and a handwritten note apparently signed by its author contains the words "please release linen plan of consolidation of lots 37 and 38". The preparation of the plan and the signing of the Certificate on it by an authorised officer of the Council would appear to be consistent with steps taken to comply with Condition 17 of the 1998 Consent. 49The significance of this plan on the Council file becomes relevant when reference is made to s 95(4) of the EPA Act. As the Court of Appeal determined in Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169; 63 NSWLR 124 at [85] - [86], survey work carried out on land that is the subject of a development consent, being work that is referable to the development sanctioned by that consent, is capable of constituting "engineering work" within the meaning of s 95(4) and thus capable of constituting commencement of the consent. 50For present purposes, I assume that the Council, through its solicitors, was aware of that determination when Amended Contention 1 was framed. The circumstance that the plan of consolidation appears never to have been registered does not detract from the fact that evidence of survey work, referable to the 1998 Consent, was available to the Council. 51I have earlier identified a contest between the parties as to whether a survey plan dated 5 May 2003 identifying both the boundaries of the Land and the location of concrete pier holes into which concrete piers were to be poured for part of the building to be constructed in accordance with the 1998 Consent was held on the Council's file. In an affidavit affirmed on 25 September 2013, Ms Hill stated that following service upon her of the Council's Amended Contentions, she inspected the Council files on 14 May 2013. She states that at the time of her inspection she recalls seeing a survey plan which, to the best of her recollection, was the survey drawing dated 5 May 2003. When, at her request, a copy of the Council's files were subsequently provided, a copy of that survey plan was not included. The copy that is in evidence was provided by the surveyors who prepared it and whose documents, including the survey, were provided to the Council's solicitors by Ms Hill on 6 August 2013. 52Affidavit evidence from Mr C Drury, the Council's solicitor, has also been read in the application before me. Annexed to Mr Drury's affidavit are copies of correspondence passing between him and Ms Hill in relation to the contents of the Council's file. The combined effect of the statements made in his affidavit together with the correspondence of which he was the author indicates that when he inspected the Council's files, he did not find the survey of 5 May 2003. The first occasion upon which he became aware of that survey was when it was forwarded to him in August 2013. 53Neither Ms Hill nor Mr Drury was cross-examined on the material contained in their respective affidavits. 54I accept that each of Ms Hill and Mr Drury has made the statements contained in their respective affidavits truthfully relying upon their respective recollections or observations. Anticipating this to be my assessment of their evidence, the Council contends that, to the extent to which the May 2003 survey is relied upon by Mr Boensch, I cannot be satisfied that the document was available on the Council file when it framed Amended Contention 1. 55Whether that survey was on the file in May 2013 is not a fact that is essential to my determination of the issue raised in the present application. However, without casting any doubt upon the evidence of Mr Drury as to his observations when examining the Council file, there is some evidence from which I infer that the presence of the survey on the file, at some time, is probable. 56While the letter of 22 May 2003 from the Council to Mr Boensch, acknowledging the pouring of concrete piers, does not make reference to a survey having been provided to it, the inference I draw arises from the fact that the identified piers were said to have been poured "on site". The correspondence passing between the Council and Mr Boensch in early May 2003 demonstrates the awareness of both parties that very limited time remained to undertake work on the Land to avoid the lapsing of the consent. Given that awareness I think it likely that the survey was provided to satisfy the inspecting officer that the piers being observed were on the Land and were referable to the approved building. The fact that the survey is dated 5 May, that is two days prior to the inspection, is consistent with the inference that I draw. 57I also note the evidence of Ms Hill that after inspecting the Council's file and subsequently receiving a copy of that file, she recorded in an email of 26 June 2013 to Mr Drury that the survey that she believed that she had seen had not been provided to her. At the time at which she first drew this to the attention of Mr Drury, she had not received a letter from the surveyors which included a copy of the survey report of 5 May 2003. Nonetheless, her email of 26 June 2013 makes apparent that a copy of the survey was in her possession at that time, the provenance of that copy being unexplained in the evidence of the 5 May survey. 58Even if I remained unsure that a copy of the May 2003 survey was in the Council file when the Amended Contention was framed, the Council's letter of 22 May 2003, stating that the 1998 Consent had commenced, coupled with the "plan of redefinition", evidencing survey work referable to that Consent, are themselves sufficient to have acted as a restraint upon the Council raising the contention that the Consent had lapsed without further investigation. The statement on behalf of the Council in its letter of 22 May 2003 that work had commenced, gave rise to a presumption of regularity in favour of commencement (Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 at [52]; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 at [116] - [118]). As was submitted on behalf of Mr Boensch, the documentary material together with the presumption "raised the bar" for the Council before proceeding to frame and serve the Amended Contention. 59The parties have agreed that it is inappropriate to resolve the application for costs made by Mr Boensch by proceeding to determine who would have been successful had the separate question been fully argued. Nonetheless, I am entitled to consider the state of the material available to the Council at the time of advancing its contention, having regard to the provisions of s 95 of the EPA Act. In context, the provisions of subs (4) were critical to Council's consideration of the available material. This required the Council to consider whether the work relating to the building sanctioned by the 1998 Consent that had been physically commenced on or prior to 8 May 2003 was "building, engineering or construction work". On the face of documents within the Council's file, the work did so qualify, comprising both construction work and engineering work in the form of surveying work. While at the time of raising the contention there may have been debate as to whether the requirements of some of the Conditions identified in the particulars to Amended Contention 1 had been satisfied, on their face, none of those Conditions, in terms, proscribed the carrying out of necessary survey work prior to fulfilling the requirements of the Conditions. 60It is essentially this circumstance that founded the submission made by Mr Pickles of counsel, appearing on behalf of Mr Boensch, that "raised the bar" of responsibility on the part of the Council before advancing the Amended Contention. At the very least, he submits, faced with the material available on the Council files, any doubts reasonably held as to commencement ought properly have been the subject of a request for information from Mr Boensch rather than the service of a contention asserting that the Consent had lapsed. 61I accept that submission as being correct. The focus by the Council on the six Conditions it identified by way of particulars to its contention distracted it from addressing the critical issue of evidence available to satisfy the provisions of s 95(4). 62Further, I do not completely disregard the circumstance that when the Council determined Mr Boensch's two development applications on 15 December 2011, it did not include among the reasons for refusal an assertion that the 1998 Consent had, or might have, lapsed. While I readily acknowledge that when an appeal is brought to the Court pursuant to s 97 of the EPA Act, a consent authority is at liberty to raise any ground available to it at the time of the appeal, the fact that a particular ground had not previously been identified does give rise to the need for any new ground to be framed with care, having regard to the "overriding purpose" in the conduct of proceedings before the Court. That care may be demonstrated in a number of ways, including, but not confined to, the provision of new evidence, error in the assessment process on the part of the initial decision-maker or appropriately framed legal contentions founded upon legal advice. However, in the present case neither obvious error or omission on the part of Council staff when assessing the application is apparent nor was there any new material identified at the time of framing the Amended Contention 1. 63As I have earlier recorded, the Council denies that it surrendered to Mr Boensch on the issue raised by Amended Contention 1. It submits that, having raised the contention, and agreed to the order for separate trial of the issue raised by that contention, Mr Boensch was invited to respond. As a consequence of his response, the Council participated in the without prejudice discussions to which I have referred, leading to the consensual resolution of the issue (cf Re Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997)186 CLR 622). 64The emphasis by the Council in its submissions upon its conduct after the Amended Contention had been raised is, to my mind, largely misplaced. The submission elides the primary focus which must be upon its justification for raising the contention in the first place. The Council's position is perhaps best reflected in a letter from its solicitors to Ms Hill on 13 August 2013. In paragraph 6 of that letter it is acknowledged that survey work is "engineering work" of the type identified in Hunter Development Brokerage Pty Ltd v Cessnock City Council. Paragraph 7 accepts that the "late material provided by the Applicant is sufficient to demonstrate lawful commencement". The clear inference from the letter and para 7 in particular, is that the undertaking of survey work on the Land was the basis upon which commencement of the 1998 Consent was accepted. 65While it is the case that additional survey material, including copies of the surveyors field notes and letter of 2 August 2013 explaining the survey material was provided to the Council as a consequence of the contention being raised, my earlier discussion of the material available on the Council's file, independently of recently supplied material, demonstrates that there was material available to the Council persuasive of the fact that survey work had been carried out on the Land prior to and in May 2003, which work was referable to the 1998 Consent. The existence of this material rendered it almost inevitable that the Council could not succeed. 66Taking all the circumstances that I have identified into account, I am satisfied that it is fair and reasonable for an order to be made requiring the Council to pay the costs of Mr Boensch of and incidental to his notice of motion of 7 June 2013, including the legal costs associated with the consideration of and ultimate withdrawal of the separate question identified in the orders of Biscoe J on 26 June 2013.

Costs of the application 67As I have earlier recorded, the hearing of this application for costs occupied two full hearing days. In his submissions before me, Mr Nash who appeared for the Council, submitted that if his client was unsuccessful in opposing the costs application made by Mr Boensch, the Council should nonetheless receive its costs of the first day of hearing. This, he submitted, was essentially because the first day of hearing was a wasted hearing day. In response, it was submitted on behalf of Mr Boensch that some adjustment for the first day would be required but that it should not be seen to have been wholly wasted. Otherwise, Mr Boensch sought his costs of the present hearing in the event that he was successful. 68I accept that ordinarily an applicant who is successful in seeking an order for costs under r 3.7 of the LECR is entitled to the costs of that application. However, in the circumstances shortly to be described, such an order does not follow in the present case. 69The present hearing commenced on 13 February when Mr Boensch was represented by Mr A Kumar of counsel. Regrettably, it quickly became apparent that Mr Kumar was struggling to present the application on behalf of Mr Boensch. When asked questions from the Bench he frequently turned to his instructing solicitor for a response which was then repeated by him. He appeared to be unfamiliar with the documentary evidence that had been tendered in support of the application. Shortly prior to the luncheon adjournment on the first day, such was the difficulty under which Mr Kumar appeared to be labouring that Mr Boensch rose from the back of the Court and announced that he wished to represent himself on his application. 70I adjourned the proceedings for a short time to enable Mr Boensch to confer with Mr Kumar and Ms Hill, his instructing solicitor. When the hearing resumed, Mr Kumar stated that he would continue to appear for Mr Boensch. He continued to address me for the remainder of the day without completing his submissions. 71When the hearing resumed on 18 February, Mr Pickles announced that he appeared for Mr Boensch. He commenced his submissions by indicating that he wished to restate the applicant's submissions and proceeded to do so in a manner that bore little resemblance to the submissions made on the first day. To his credit, Mr Pickles articulated his submissions succinctly and, as would be expected in an application of this kind, he completed those submissions by the morning tea adjournment. The submissions of Mr Nash on behalf of the Council and of Mr Pickles in reply then occupied the Court until mid afternoon on that day. 72The affidavits that were read and documents tendered on 13 February occupied very little of the Court's time on that day. There was no controversy as to the documentary evidence and apart from an objection to several paragraphs in Ms Hill's affidavit as a consequence of which the material was not read, the affidavit material was not the subject of contest. Apart from this process, the first day of hearing was effectively wasted. This was through no fault of the Council. Given that the day was wasted, the Council could expect that it should have its costs of that day. 73By way of contrast, the case was conducted with appropriate efficiency on 18 February. As Mr Boensch has been successful in securing an order that his costs of the separate question be paid by the Council, he could ordinarily expect that he would have an order for costs of that day. 74The making of an order for costs is discretionary. The making of separate orders allowing each party to recover against the other the costs of one day's hearing would, in the circumstances, be inappropriate. Accordingly, I consider that the appropriate exercise of discretion requires that there be no order for costs of the hearing of Mr Boensch's application, such that each party should pay his and its own costs.

Orders 75The orders that I make are as follows: (1)Order that the respondent pay the applicant's costs of his notice of motion dated 7 June 2013, including those costs incurred in addressing the separate question ordered to be determined by Biscoe J on 26 June 2013. (2)No order as to costs of the hearing of the present application. (3) Exhibits A and B may be returned.

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. Decision last updated: 27 February 2014