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.