HER HONOUR: These proceedings relate to the determination of a development application by Clay AC in proceedings Hodgson v The Hills Shire Council [2021] NSWLEC 1444 which decision was delivered on 10 August 2021 wherein the Acting Commissioner determined to refuse the application and dismissed the appeal.
The Council by Notice of Motion dated 7 September 2021, seeks an order for the payment by the Applicant of its costs on two bases; the first, an order that the costs of the substantive proceedings be paid pursuant to r 3.7(3)(b)(2) and/or subpara (f) of the Land and Environment Court Rules 2007 (NSW) which claim relates to what was said to be the maintenance of a position by the Applicant relating to bushfire impacts and/or the delay in the provision of bushfire information sufficient to enable the assessment of the bushfire impact response that was proposed, that the shed was to be used for residential purposes, such that the provisions of r 3.7(b) and (f) are engaged.
The second basis is for an order pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) relating to an amendment of the development application made on the Applicant's Notice of Motion and granted by orders of this Court on 9 December 2020.
The Notice of Motion is to be dismissed.
Dealing with the first basis for the claim, the usual order in class 1 proceedings is that which is provided for in r 3.7(2) of the Land and Environment Court Rules 2007 (NSW) that provides:
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.
That position reflects the principle that a merit review of a refusal of a development application is permitted to proceed in the usual course without risk to either party as to a costs order. The exceptions to that usual position as set out in subpara (2) of r 3.7, are without limitation, those circumstances set out in subpara (3).
Brett Hodgson v The Hills Shire Council [2021] NSWLEC 133 | Case summary | Zoe
Whilst the circumstances in subpara (3) are not exhaustive, they demonstrate considerations that could be broadly described as relating to matters out of the usual course of a merit proceeding. In this case, the Council relies upon subpara (b)(ii) which provides that a party has failed to provide or has unreasonably delayed in providing information or documents, subpara (2), that are necessary to enable the consent authority to gain a proper understanding of and give proper consideration to the application.
Subparagraph (f), that a party has commenced or continued a claim in the proceedings or maintain the defence to the proceedings where:
1. The claim or defence (as appropriate), did not have reasonable prospects of success; or
2. To commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
In this case, from a consideration of the reasons of Clay AC, the determination of the issue of bushfire was a merit determination in the usual course. As was indicated by the Acting Commissioner in para 74 of his judgment:
This does not mean that refusal is commanded by s 4.14 of the EP&A Act. Section 4.14(1)(a), allows the consent authority to grant development consent notwithstanding a noncompliance with (PBP 2016), but only after consultation with RFS. Consultation with RFS has occurred and therefore there is power to grant development consent in this case. It can also be observed that even if consultation had not occurred, then the Court on appeal has power to grant development consent by virtue of s 36(6) of the Court Act.
It was therefore on the Acting Commissioner's findings open to the Court after consideration of the merits to either approve or refuse the application. The Acting Commissioner determined this question as a merit determination. He does so in the paragraphs dealing with bushfire that commence at para 60 and conclude with his conclusion at para 93. He determined that in the exercise of his discretion, the development as proposed could not provide for a reasonable level of safety and protection to persons and property in the location it was proposed.
Whilst the outcome of that merit assessment was consistent with the position taken by the Council, it was not an inarguable position as evidenced by the careful and reasoned consideration of the Acting Commissioner, where he identified the evidence and the factors he took into account.
Further, the Applicant in those proceedings was assisted by the expert that he retained on bushfire and there is no submission put in this case by the Council, that that expert did not indicate that the application was not one that was either worthy or capable of approval on merit. The fact that the bushfire constraint was created by the existing shed and its construction made the merit assessment difficult to succeed, but difficulty in success does not mean that the issue was doomed to fail. In the circumstances of this case having regard to those provisions, I do not accept the submissions of the Council and I do not find that it would be fair or reasonable in the circumstances of this case to order that the Applicant pay the Council's costs of the proceedings on that basis.
The alternative proposition was that the Applicant had failed to provide the information in relation to the bushfire issues once the shed was identified as being proposed for residential purposes and that this delay was unreasonable. The evidence suggests that a bushfire report was lodged for the development application, the Council does not contend in this Notice of Motion that the provision of a further report was required by law to be provided as would have been required in consideration 3(b)(i) of r 3.7. In this case the evidence establishes that the expert evidence of the bushfire experts was provided by way of joint report in accordance with the Court directions.
There is no evidence in this case that has been adduced by the Council or any submission made that suggests that the Applicant had failed to comply with Court's directions or that information had been requested in terms and the Applicant had declined to provide that information in an unreasonable fashion. In those circumstances, again, I do not consider it fair and reasonable in the circumstances to order that the Applicant pay the Council's costs for the proceedings.
The second basis is on the basis of the amendment made by the Applicant in a Notice of Motion for which orders were made on 9 December 2020. I am advised by the representative for the Council in her submissions, that the Notice of Motion filed by the Applicant in relation to that application was opposed by the Council and it was only after hearing argument on the matter that the Court determined to grant the leave to permit the Applicant to amend its application. I am further informed by the representative for the Council in this Notice of Motion that at no time was the issue of costs raised by the Council, nor was there any argument before the Court in relation to the requirement to pay costs under s 8.15(3).
Further, and importantly, there was no application that the costs of the amendment be reserved upon the determination of that Notice of Motion. With the filing of the Notice of Motion the provisions of s 8.15(3) were engaged. The totality of the considerations that were required to be undertaken including s 8.15(3) are taken to have been determined by the Court when the application to amend was made. The making of the order is in effect the making of no order as to cost. This does not mean that the provisions of s 8.15 have not been enlivened but rather, that in disposing of the Notice of Motion in the manner that it was disposed of, that no order was to be made.
In order for me to consider and determine the application that is made before me today, it was necessary or would be necessary in order for me to revisit the orders that were made on that occasion, it would be necessary for me to review the decision of the Registrar. Whilst no formal application has been made for such review, even if such application was made, I would not exercise my discretion to permit such an application for review to be made, having regard to the length of time since the exercise of the Registrar's powers to grant the leave.
There being no explanation as to why it has taken the Council so long to seek to reagitate the issue of s 8.15 and no evidence that would enable me to determine whether or not the orders made by the Registrar were appropriate in the circumstances. In the circumstances I decline to review the Registrar's decision. An absent review, the decision stands and I have no power to go behind it.
For those reasons, I dismiss the Notice of Motion and I order that the exhibits on the Notice of Motion be retained as the exhibits that were retained in the class 1 proceedings before Clay AC.
[2]
Amendments
18 November 2021 - Coversheet - typographical error - amended Second Applicant's name
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Decision last updated: 18 November 2021