Captive Vision Pty Ltd v Ku-ring-gai Council

Land and Environment Court (NSW)|2019-08-01|Before: Pepper J

The Application Must be Refused

In my opinion, having regard to the applicable legal principles, the evidence before the Court and the arguments of the parties to the application, the application for the determination of a separate question must fail largely for the reasons proffered by Captive (but without the Court determining the correctness of the parties' submissions on the legal question the subject of the application).
First, although the delay in the listing and hearing of this application for a separate question has not been the fault of RMS, I agree with Captive that RMS ought to have filed its motion much earlier upon being notified of the proceedings.
Second, given the immediacy of the final hearing of the Class 1 appeal in which the question for separate determination is not only squarely raised, but comprises the gravamen of the contentions raised for determination, there is little utility in having the question separately determined.
Moreover, to make such an order would place the hearing dates of the Class 1 appeal in peril, which would be grossly prejudicial to Captive given the potential lapsing of the consent on 11 November 2019.
In this regard, it is noted that it is unlikely that at this late stage the Court diary could, in any event and absent of an order for expedition, permit the separate question to be heard and determined in advance of the hearing.
Third, in the absence of RMS adducing any evidence as to the savings in time and costs that would result if the question was heard and determined separately it is not known what, if any, savings would result by ordering the separate question.
Fourth, this application was separated from the joinder application by Court order, determined after argument from the parties. There was no "fault" in Captive seeking and obtaining such an order.
Therefore, for the reasons given above, to order a separate question at this stage of the appeal would neither be quick, just or cheap having regard to the matters set out in ss 56-60 of the Civil Procedure Act 2005.

Costs

Upon the dismissal of the application, Captive sought its costs notwithstanding that these are Class 1 proceedings and the presumptive rule is that there is to be no order as to costs unless it is fair and reasonable to make such an order in the circumstances.
In this regard, r 3.7 of the Land and Environment Court Rules 2007 ("the LEC Rules") relevantly states as follows (emphasis added): 3.7 Costs in certain proceedings … (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, (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.
Captive relied specifically on r 3.7(3)(d) of the LEC Rules. It argued that upon the delivery of the Registrar's judgment on 15 July 2019 joining RMS as a party to the proceedings, RMS ought to have immediately withdrawn the remainder of its motion because it was inevitable that this application would fail given that the appeal was listed for final hearing within six weeks.
However, to order costs against RMS in these circumstances would be to effectively punish it for delay that was occasioned through no fault of its own, which would be neither fair nor reasonable in all the circumstances.
The costs order sought by Captive must therefore be refused.

Orders

For the reasons give above, RMS's application for the determination of a separate question is refused and the remainder of the notice of motion filed on 20 May 2019 by RMS (order 3) is dismissed.
Each party is to pay its own cost of the application. The exhibits are to 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: 02 August 2019

Applicable Legal Principles

The power to make orders for a question to be decided separately is contained in r 28.2 of the Uniform Civil Procedure Rules 2005.
The legal principles applicable to the determination of whether a question ought to be determined separately in advance of the final hearing were recently set out in Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 (at [22]-[29]), and are relied upon and applied without repetition in this case.

RMS's Reasons for Seeking the Separate Question

RMS relied on an affidavit of Mr John Clayton sworn 20 May 2019 (a solicitor acting for RMS). The affidavit did no more than attach a copy of the DA, the CC application, the modification application, and various correspondence passing between Captive, RMS and the Council.
This correspondence made it abundantly clear that the issue of whether or not RMS was required to give its concurrence was known as early as February 2017, and moreover, that on 28 February 2017 RMS refused to do so in respect to any s 138 Roads Act application or under SEPP 64.
The correspondence also made it clear that RMS had been aware of the proceedings since 13 March 2019.
In a letter dated 10 May 2019 to the Council and Captive stating its reasons why it ought to be joined as a necessary party, RMS stated its position as to the legal issues it would be seeking to raise in the Class 1 appeal as follows: 4 Legal Issues 4.1 RMS also intends to raise two legal issues. 4.2 The first concerns whether or not the Court has power to grant the orders sought in the Class 1 appeal in circumstances where: (a) the Consent makes the grant of a construction certificate contingent on a section 138 approval being granted by the Council; and (b) section 138(2) requires RMS's concurrence before any section 138 approval may be issued. 4.3 Specifically there is a legal question as to whether the Court, in determining an appeal against the refusal to issue a construction certificate, is able to exercise the statutory functions of RMS in granting its concurrence to the issue of a section 138 approval which is legally required under the Consent before a construction certificate may be issued. Irrespective of it being required under the Consent, a section 138 approval is separately required for the development by operation of the Roads Act. 4.4 RMS' initial position at this stage is that the Court does not have this power. Thus, the Court does not have power to grant Order 1 as sought in the Class 1 Application and consequently Order 2 also cannot be made, or if it can, it ought not because it lacks utility. 4.5 Further, as this issue is determinative of the appeal and is a question of pure statutory construction that requires no evidence, RMS proposes to move the Court for an order that the question of power be determined as a separate question. 4.6 The second legal issue concerns the commercial arrangements between the Applicant and the Council. As RMS understands those arrangements, the Council has agreed with the Applicant to lease the relevant airspace in which the advertising signs are located so as to allow the Applicant to display the proposed advertising signs. According to the Council's letter dated 22 September 2017, one of the components of the arrangement is that 5 minutes per hour of advertising time be allocated to the Council for community advertising. In its letter, the Council described this as a significant public benefit to the Council as follows: "A commercial rent that reflected the benefit conferred upon the lessee for the lease variation was negotiated consisted with Council's adopted Commercial Lease Policy which included obtaining independent expert valuation advice. Additionally, the commercial negotiations included the allocation of 5 minutes per hour to Council for community advertising as well as a public service to broadcast alert transmissions of events of catastrophic nature (major bushfires, accidents etc.) for the public. These represent a significant public benefit to Council and are consistent with Council's strategic direction." 4.7 The same letter indicated that the commercial arrangements between the Council and the Applicant were conditional upon DA approval being granted: "The parties prepared a Deed of Agreement, Deed of Variation of Lease and Deed of Consent to Signage Licence to put into effect the proposal conditional upon DA approval being granted." 4.8 In RMS' view, the existence of an arrangement whereby a benefit to Council is conditional upon Council exercising its statutory discretion in a particular way is an indicium of either actual or apprehended bias in its decision making function and is similar in nature (although of a different scale) to the issues considered by the Court in Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140. 4.9 In RMS' view, the existence of this arrangement: (a) precluded the Council from the proper and lawful exercise of its discretion in approving the Development under the Environmental Planning and Assessment Act 1979; and (b) would preclude the Council from exercising its statutory function to grant either a construction certificate or a section 138 approval. 4.10 RMS intends to make an application to be joined by 20 May 2019. Accordingly, we would be grateful for your clients' indication as to whether they consent for RMS to be joined by COB on 17 May 2019.
RMS filed its motion seeking joinder on 20 May 2019. Also contained in the motion was an order seeking the determination of the separate question of what appears to be the first legal issue (only) raised by it in its letter above.
No explanation for the delay between 13 March 2019 and 20 May 2019 (the date of the filing of its notice of motion) was provided by RMS to the Court.
When the matter came before the Registrar on 29 May 2019, the Registrar indicated that while she could deal with the joinder application, she could not deal with the application for a separate question because she lacked the power to do so. Captive opposed the entirety of the notice of motion being set down before a judge (that is, the question of joinder and the application for a separate question). For reasons that are not clear, the Registrar bifurcated the orders sought in the motion and proceeded to deal with the joinder application. According to the parties, the matter took about two hours to be heard albeit spread over the course of two days.
The Registrar reserved her decision on 30 May 2019. On 15 July 2019, the Registrar handed down her decision joining RMS to the Class 1 appeal (Captive Vision Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1331) and set the remainder of the motion down (that is, the application for a separate question) before a judge on 1 August 2019.

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