Brindley v Parramatta City Council

Legislative Framework

1. Rule 3.7 of the Land and Environment Court Rules 2007 provides that for proceedings to which the rule applies (including proceedings in Class 1 of the Court's jurisdiction): (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. Rule 3.7(3) then provides a list of circumstances in which the Court might consider it reasonable to make an order for costs. The list is not to be considered exhaustive, but provides: (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, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
2. Rule 3.7 creates a presumption that in matters to which the rule applies each party bears their own costs. This reflects what is commonly referred to as the non-discouragement principle. That is, parties should not be discouraged from bringing Class 1 merit appeals for fear of an adverse costs order. The circumstances outlined in rule 3.7(3) and the body of case law on the award of costs in Class 1 merit appeals reflects that where a party is put to the unnecessary cost of conducting proceedings as a result of the unreasonableness of the other party, that cost should be reimbursed.
3. In outlining the nature of the non-discouragement principle and the presumptive rule that each party bear their own costs, in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 Biscoe J states as follows: 9 In the context of the presumptive rule that there will be no order as to costs in planning appeals, the power to make a costs order is in the broadest of terms, that is, what is "fair and reasonable in the circumstances". All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the Court, they are of sufficient weight to overcome the presumptive rule. Indicative guidelines for the exercise of the discretion are useful in promoting consistent decisions, but are not entitled to presumptive, let alone determinative, weight. These principles were identified in the context of the former Part 16 r 4 by the Court of Appeal in Port Stephens Council v Sansom (2007) 156 LGERA 125 at [48], [53] and [54] and Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 156 LGERA 150 at [33] and [35]. Those judgments were delivered on the same day by an identically constituted Bench of five judges. Spigelman CJ delivered the leading judgment in each case. The presence of the words "in the particular circumstances of the case" in the old rule influenced his Honour to hold that a general characterisation of proceedings such as "merits review" or "capacity", cannot be determinative or, indeed, entitled to presumptive weight: Sansom [60]. In the present case, there was no suggestion that the absence of these words from the new rule bears on the outcome. 10 One of the purposes of the costs follow the event rule in ordinary civil litigation is to encourage the parties to settle their disputes: Sansom at [26]; Thaina at [65]. In contrast, a no discouragement principle underlies the no costs rule in planning appeals, that is, that persons generally should not be discouraged from exercising their rights of appeal via the prospect of an adverse costs order: Sansom at [22] - [23]. This may be rationalised on the bases that a significant purpose of planning appeals is to improve the decision-making process and that those involved are not adversaries in the same sense as adversaries in conventional civil litigation.

Submissions

1. In submitting that it is fair and reasonable for a costs order to be made, the applicant relies in particular on the terms of rule 3.7(3)(d) and (f): (d) that a party has acted unreasonably in the conduct of the proceedings, … (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
2. The applicant submits that in determining the reasonableness of the respondent's conduct of the proceedings, I should have regard to the conduct of the entire proceedings by the respondent, including the initial refusal of the modification application against the council officer's recommendation. The applicant submits that this action commenced a course of conduct by the respondent that can be seen, when looked upon as a whole, to have been unreasonable. The applicant submits that the respondent persisted in its opposition to the application up to the final hearing of the proceedings without there being reasonable prospects of success.
3. The applicant's submissions in relation to the unreasonableness of the respondent's conduct concerns two aspects of the proceedings. The applicant submits that the respondent was firstly unreasonable in participating in a section 34 conciliation conference in circumstances where he says that the respondent did not have a representative in attendance with authority to resolve the proceedings. In this regard, the applicant says that from the narrow issues raised in the contentions and the number of conciliation conferences that took place I can draw the inference that the respondent was not participating in good faith. The applicant submits that the multiple adjournments demonstrate that the modification application had to go to a further council meeting for consideration, and that therefore the respondent did not have someone present with the requisite authority to resolve the proceedings. The absence of someone with authority, the applicant submits, means that the Council was not participating in the conciliation process in good faith. The applicant therefore says that each of the conciliation conference dates was unnecessary and that the respondent should reimburse them for the costs of attending on those dates. In support of this submission, the applicant relies on my decision in Gilles v Valuer General of NSW [2011] NSWLEC 1114 wherein I found (at [22]) that "where a party incurs costs unnecessarily by virtue of another party's failure to attend a section 34 conference in good faith contrary to section 34(1A), then it is fair and reasonable for the offending party to reimburse those costs."
4. Secondly, the applicant submits that the respondent was unreasonable in continuing to press a position in the proceedings that was unsupported by evidence. In that respect, the applicant draws to my attention the fact that the Council chose not to rely on expert evidence in relation to town planning or social impact, and that the contentions in relation to parking could not be maintained. The applicant also submits that the respondent was unreasonable in continuing to proceed with a contested hearing even on the amenity and social issues being resolved through the erection of the fence, and the traffic issues being resolved through the joint report.
5. The respondent submits that there is no evidence that it acted unreasonably at any stage of the proceedings. The respondent's solicitor points to the recommendation by the Crime Prevention Officer as the basis for the initial refusal of the application. Concerning the conciliation conference, the respondent submits that the adjournment of a section 34 conference for the purpose of taking the matter to a Council meeting is not evidence of a lack of good faith. Further, the respondent submits that in light of the decision of Biscoe J in Golden Max Pty Ltd v Hurstville City Council [2015] NSWLEC 16, the obligation to participate in a conciliation conference in good faith does not necessarily mean that the person attending the conference must have full delegation to enter into a binding agreement at the conference. In light of this, the respondent submits that there is no evidence of a lack of good faith in the Council's participation in the conciliation process. Further, the respondent draws to my attention the changes to the modification application that came about as a result of the conciliation conference process. In light of those changes, the respondent submits that it is clear that options were discussed at the section 34 conference and there was utility in the conferencing process.
6. The respondent also submits that the contentions raised in the proceedings following the changes to the modification application were required to be raised for the Court's consideration, and could not be raised as contentions that could be dealt with by way of conditions. Further, in circumstances where the joint report of the traffic experts (which resolved all of the issues concerning traffic and parking) was provided to the respondent's solicitor on the evening prior to the hearing, the respondent submits that it could not be said that the Council should have been satisfied as to that issue earlier in the proceedings. The same submission is made in relation to the issues regarding social and amenity impacts, where a letter from the principal objector outlining how the fence addressed those issues was not received by the respondent's solicitor until 25 August 2014.
7. Finally, the respondent made the submission that their objections to the application had reasonable prospects of success, and that nothing in the judgment of the Senior Commissioner refers to there being a lack of evidence in relation to the Council's contentions.

Costs of the conciliation conference process

1. In considering whether it is fair and reasonable for a party to be awarded its costs of a conciliation conference, it is important to consider the nature of a conciliation conference itself. In ROI Properties Pty Ltd v Council of City of Sydney [2010] NSWLEC 22 at [22] Justice Pain found that "Given the non-adversarial nature of a s 34 conference the Court should award costs against any party in relation to the conduct of such proceedings reluctantly. The nature of conciliation conferences is more comparable to mediation proceedings than to an adversarial court hearing. Costs of mediation would not generally be awarded to any party."
2. Consistent with the nature of conciliation conferences and to allow full and frank discussions through the conciliation process, section 34(11) provides that: (a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and (b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.
3. This prohibition does not confer any discretion on the Court in relation to whether such evidence can be admitted. Rather, the only exception relevant to this application is where the parties consent to that evidence being relied upon. Such an agreement has not been reached in these proceedings, the respondent having refused to consent to the admission of evidence of what was said at the conciliation conference. This creates a vacuum in which I am required to consider whether an order for costs of the conciliation conference is fair and reasonable.
4. This prohibition on the admission of the evidence of what was said at the conciliation conference is consistent with the nature and purpose of a conciliation conference. Conciliation allows the parties to come together in order to discuss the issues in dispute and with the aim of reaching a resolution on some or all of those issues. In attempting to reach a resolution, some concessions may be made by one or both of the parties. It is an opportunity to reach a negotiated outcome with full and frank discussion in relation to the issues. A party should not be dissuaded from participating in this process by the prospects that something said at the conciliation conference, including a concession made, might be used later in the proceedings or in any other proceedings, including in applications for costs.
5. On the other hand, as Pain J indicated in ROI Properties Pty Ltd v City of Sydney Council, "it is not appropriate that one party cause another party to incur unnecessary costs at any stage of the proceedings including conciliation conferences." Where there is evidence that one party knowingly unnecessarily put the other party to the cost of a section 34 conciliation conference, either by not participating in good faith or by some other way, it would be fair and reasonable for a costs order to be made. That is what I considered had occurred in Gilles v Valuer General of NSW [2011] NSWLEC 1114.
6. In considering the facts before me in relation to these proceedings, I do not accept that it is appropriate to award the applicant the costs of the conciliation conference process. Two reasons lead me to this conclusion.
7. Firstly, there is no evidence to support the submission made by the applicant that the respondent did not participate in the conciliation conference in good faith. Whilst there was some dispute in relation to who ought to have been in attendance on each date of the section 34 conference, there is no evidence that the failure to attend by one or another of the respondent's experts on particular dates prevented the respondent from participating in good faith on those dates. Further, I accept the respondent's submission that the adjournment of conciliation conferences for the purpose of council meetings is not an indication that the respondent was not participating in good faith. Rather, such an adjournment is envisaged as being entirely appropriate by Justice Biscoe in Golden Max Pty Ltd v Hurstville City Council [2015] NSWLEC 16. In discussing whether parties are participating in good faith, Justice Biscoe says at [9] that: "it is alternatively sufficient if a party's representative at a section 34 conference has authority to enter into a legally non-binding agreement as to the terms of decision in the proceedings that the representative thinks may be acceptable to that party. This may require any such legally non-binding agreement to be submitted by the representative to that party for the latter's ratification; and this may require adjournment of the s 34 conciliation conference."
8. Therefore I cannot accept that the multiplicity of section 34 conference dates and the frequent adjournments is evidence that the respondent did not participate in good faith in the conferencing process.
9. Secondly, following the termination of the section 34 conciliation conference, the applicant sought and obtained leave to rely on an amended modification application. These amendments were to regularise a range of work that had already been carried out by the applicant on the premises. They also included an amended Plan of Management. The affidavit of Mr Brindley sworn on 17 July 2014 in support of the notice of motion seeking leave to rely on an amended modification application indicates at paragraph 9 that these amendments were made in response to discussions held during the conciliation conference.
10. It is therefore clear that on the applicant's own evidence there was utility in the s34 conference process. The result was a more comprehensive plan of management and a modification application that sought to regularise works that had already occurred. Taken together with the Senior Commissioner's determination of the application in favour of the applicant, it can be seen that these amendments resulted in a better outcome. It cannot be said that the applicant was put unnecessarily to the cost of a section 34 conciliation conference where that conference resulted in amendments that created a better outcome for the development. There is therefore no basis upon which it would be fair and reasonable for a costs order to be made against the respondent in relation to the section 34 conciliation conference.

Costs of the remainder of the proceedings

1. The question that then remains is whether the Council was unreasonable in its continued contest of the modification application, therefore unnecessarily putting the applicant to the cost of preparing for a contested hearing. That is a circumstance envisaged in rule 3.7(3)(d) as being an appropriate consideration in favour of an award of costs. In dealing with the same in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 285 Preston CJ considered at [42] that: "A consent authority's decision to oppose an appeal by an applicant against the consent authority's determination and the grounds on which to maintain opposition, should be based on probative evidence and on reason. If there is no probative evidence in support of an issue, and a decision to refuse consent to a development application cannot be reached by a process of logical reasoning on probative evidence, the consent authority, as a responsible public body, ought not to raise or maintain such an issue or raise or maintain a position that development consent should be refused by the Court."
2. It is clear that it is unreasonable for a consent authority to continue in its contest of an application on the basis of contentions that are not supported by probative evidence or reason. It is important to note, however, that a Statement of Facts and Contentions may properly raise issues that do not necessarily warrant refusal of an application. Those issues, framed as contentions in the proceedings, can be raised by the consent authority for the Court's consideration in its determination of an application. Indeed, Practice Note - Class 1 Development Appeals makes it clear that the Statement of Facts and Contentions ought to separate the contentions that warrant refusal from the contentions that can be dealt with some other way, such as through conditions of consent. A problem arises where a consent authority raises contentions as a basis upon which the application should be refused without there being probative evidence or reason in that regard. If that occurs, the consent authority is unreasonably maintaining its defence of the proceedings in accordance with rule 3.7(3)(f) and is therefore putting the applicant to the unnecessary cost of preparing for a contested hearing in relation to those contentions.
3. In these proceedings, for reasons that I will outline shortly, I am of the view that the contentions raised in the Amended Statement of Facts and Contentions and pressed at the hearing were not based on probative evidence or reason. Notwithstanding the amendments to the modification application, the Council continued to contest the application. In its amended Statement of Facts and Contentions, which was filed on 14 August 2014 some two weeks after the date it was directed to be filed (and three weeks after the date on which leave was granted to the applicant for the amendments to the modification application), the Council raised four contentions that it said should warrant the refusal of the modification application: 1. Impact on amenity of adjoining properties and neighbourhood; 2. The proposed intensification of the approved use will result in adverse impacts on parking availability in the area; 2A. The proposed parking arrangement is unsatisfactory; and 3. Social impact and public interest Contention 2A was a new contention raised and contention 2 was amended by the Amended Statement of Facts and Contentions.
4. Although the Council's Crime Prevention Officer and planning expert had been present at various times throughout the conciliation process, on 17 August the Council's solicitor advised the applicant that it would not be relying on expert evidence in relation to contentions 1 and 3. The Council relied instead of the written objections of neighbours. The principal objection contained a number of issues, many of which resulted from clients of the centre having easy access from the centre to Les Burnett Lane and across the laneway to the residential flat building where the objector lived.
5. Upon the grant of leave to amend the modification application, the objectors were notified of the amendments and no further submissions were received. A later letter from the principal objector that remarked on the positive changes in these impacts as a result of the erection of the fence was dated 18 August 2015.
6. The Council's decision not to rely on expert evidence in relation to social and amenity impact is suggestive, but not determinative, of the fact that there was no probative evidence to support the position that the contentions raised in relation to these issues should result in the refusal of the modification application. Of course the Council is entitled to raise the issues identified by the objectors. These issues related to the problems created by the centre generally and objection to those problems extending to a Saturday. However, those issues were sought to be addressed through the other aspects of the amended modification application - the installation of the fence, the existence of a locked gate preventing egress to the laneway, and an amended plan of management. Indeed, the success of the fence in that regard formed the basis of the letter of the principal objector of 18 August 2014. Notwithstanding receipt of that letter on 25 August 2014, the Council continued to press the contentions regarding social and amenity impacts and raised them at the final hearing before the Senior Commissioner. Indeed, the consequence of this letter and the Council's decision not to rely on expert evidence meant that there was no probative evidence in support of the contentions that it continued to press. There was therefore no basis on which the Council could continue its objection to the modification application based on those contentions.
7. I am also of the view that the Council acted unreasonably in continuing its contest of the application based on the contentions raised in relation to parking. Firstly, contention 2 asserted that the modification application should be refused on the basis that there was inadequate parking. The Council had previously granted development approval for use of the centre on Monday to Friday with three parking spaces. Against that background, the contention that three parking spaces (albeit in a new location) provided inadequate parking for Saturdays was absurd, particularly given that it was proposed to have less clients and staff frequenting the centre on Saturdays than on weekdays. The requirement for a parking accumulation survey is similarly unsupported by reason, given that the Plan of Management clearly demonstrates that the clients of the centre do not drive.
8. Secondly, contention 2A asserted that the width of Les Burnett Lane, from which the parking could be accessed, was insufficient to accommodate 90 degree parking, and that there were no swept paths demonstrating whether vehicles could safely enter and exit the proposed parking spaces. This contention also alleged that the application does not accommodate the proposed widening of the lane.
9. In relation to the element of this contention that concerned access to the parking spaces, the Council submits that it was only upon receipt of the joint report that the turning circle or swept path diagrams were provided by the applicant (as an annexure to the joint report). The Council therefore says that given that the joint report was filed on the day of the hearing it could not be said that the Council should have been satisfied as to that issue earlier in the proceedings. I do not entirely accept that submission. The turning paths annexed to the joint report address only the swept path into the middle car park. Notwithstanding this, the traffic and parking experts were satisfied as to access to the three car parks. It is clear, therefore, that any proper enquiry by an expert would have revealed that given the one-way restriction on the laneway there is sufficient access to the parking spaces. The Council could have and should have made that enquiry before raising access as an issue warranting refusal of the modification application. If it was a mere fact of diagrams being required, the contention could have been raised as one for which additional information was required. Further, notwithstanding that all of these issues were resolved in the joint report, the Council continued to press them at the hearing of the proceedings and cross-examined the applicant's traffic expert in relation to the same.
10. The same can be said in relation to the issue raised on behalf of the Council regarding the proposed acquisition of part of the land for the intention of widening the laneway. Contrary to that intention, the lane had been rendered one way by resolution of the Council on 28 April 2014. The proposed acquisition wasn't therefore imminent in any way. Further, the joint report of the traffic experts considered that even if the lane was widened, the property could accommodate two parallel parking spaces that would be adequate for the centre. Notwithstanding this, the Council continued to press these issues and cross-examined the applicant's traffic expert in relation to this issue.
11. As a result of the conduct of the respondent, the applicant was put to the cost of preparing for and conducting a contested hearing in circumstances where firstly the respondent didn't put forward any expert evidence in relation to planning and social or amenity impacts notwithstanding the content of the further letter from the objector, and secondly the contentions raised concerning parking could never have been accepted as a basis for refusal of the modification application. It is unreasonable for the respondent to put the applicant to the cost of preparing for a contesting hearing in those circumstances, and the respondent should therefore reimburse the applicant for those costs. Accordingly I am of the view that the respondent ought to pay the applicant's costs of the proceedings from the date on which the Amended Statement of Facts and Contentions were filed, that is, the date on which the Council made the decision that it would continue to contest the proceedings based on the contentions raised therein. That date is 14 August 2014.

Costs of the notice of motion

1. At the hearing of the notice of motion, a number of submissions were made in relation to the costs of the notice of motion. Rule 3.7 applies to such an award of costs, and where a party is successful in satisfying the Court that it is fair and reasonable for a costs order to be made in its favour in relation to the proceedings, the Court generally awards costs of the notice of motion in favour of that party.
2. The applicant submits that it should be awarded its costs of the notice of motion, together with indemnity costs from 29 October 2014 in the event that he was successful in obtaining a costs order equally or more favourable than that contained in its email of the same date. The email of 29 October 2014 was addressed to the solicitor for the respondent and contained the following: "In relation to the motion for costs in Brindley v Parramatta City Council, I am instructed to make the following offer to settle on a without prejudice basis: 1. That the Council pay the costs of the applicant for preparation and attendance at the hearing before Senior Commissioner Moore on 28 August 2014. 2. The costs of the applicant for preparation and attendance at hearing are (a) legal costs (for Lee-May Saw barrister), and (b) costs of experts (town planning consultant Kerry Nash, and traffic consultant Craig Hazel). Kind regards, Lee-May Saw"
3. The applicant submits that this email should be considered as a Calderbank offer that entitles the applicant to indemnity costs in the event that it obtains an order equally or more favourable than that contained in the offer, which is the case here. The applicant submits that in circumstances where no response was received regarding the email at all, an award of indemnity costs from the date of the email should be forthcoming in the event that the applicant was successful on its application for costs.
4. The respondent submits, however, that the email cannot be considered a Calderbank letter or a letter under Parts 20 or 42 of the Uniform Civil Procedure Rules 2005. The respondent submits that there is no indication of what date the offer would close, or that a failure to accept the offer would have cost consequences.
5. I accept the submission of the respondent in this respect and I am not of the view that I ought to exercise my discretion to award costs on an indemnity basis for the following reasons: firstly, the email did not specify the date on which a response to the offer was required or that a failure to accept the offer would be used in an application for indemnity costs. Secondly, the email did not specify the date by which the payment would be required. Thirdly, the offer is not clear in what is encompassed by the "preparation" for the hearing. True it is that the solicitor for the respondent ought to have responded to the email, the fact that they failed to do so does not warrant an order for indemnity costs.
6. Whilst the applicant has been successful in obtaining a costs order in relation to the substantive proceedings, the costs ordered were not to the same extent as those that were sought. In fact, some part of the application for costs concerned an application for costs of the conciliation conference supported by evidence and submissions. I did not accept that such an order was appropriate. In that respect, it would not be fair and reasonable for the respondent to reimburse the applicant for the entire costs of the notice of motion. The appropriate order is, in my view, that the respondent pay 50% of the applicant's costs of the notice of motion filed 12 September 2014.
7. The Court therefore orders that: 1. The respondent pay the applicant's costs of the proceedings from 14 August 2014, as agreed or assessed. 2. The respondent pay 50% of the applicant's costs of the notice of motion filed 12 September 2014, as agreed or assessed. 3. Exhibits 2, 3 and 5 be returned. Joanne Gray Registrar of the Court

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: 19 May 2015