Currency Corporation Pty Ltd v Wyong Shire Council

CASES CITED: Currency Corporation Pty Limited v Wyong Shire Council [2006] NSWLEC 692

APPLICANT Mr J Ayling SC SOLICITORS Grech Partners LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole (solicitor) SOLICITORS Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

CURRENCY CORPORATION PTY LIMITED Applicant

JUDGMENT Jagot J: 1 This is an application by the applicant in Class 1 proceedings seeking leave to file and rely upon further amended plans in the proceedings.

2 The application has had a relatively long history, much of which is encapsulated in a chronology helpfully provided by the solicitors for the Council. In essence, that chronology discloses that the original application as lodged and as maintained, certainly at all times up to about 3 November 2006, proposed that access to the development site sought to be redeveloped for the purpose of a residential flat building would be over the adjoining land. The owner of the adjoining land was involved in the proposed application for the subject development site, apparently being one of the directors of the applicant corporation.

3 Early in the proceedings, the Council raised questions about the legal capacity of the Court to determine the development application by the grant of consent, having regard to the question whether the subject development site and the adjoining land had the benefit of existing use rights, the proposal apparently being dependent upon such rights. Although the Council raised these issues in some form as early as 30 January 2006 for reasons I need not go into for the current application, the questions about existing use rights were not resolved until 3 November 2006, at which time the Court delivered judgment (Currency Corporation Pty Limited v Wyong Shire Council [2006] NSWLEC 692). In his reasons for judgment, Biscoe J determined that the development site had the benefit of existing use rights. With respect to the access proposed over the adjoining property, Biscoe J observed that the only form of road permissible over the adjoining property would be a public road.

4 After 3 November 2006, the applicant appears to have proceeded on the assumption that, one way or another, it could carry out the development generally as proposed in the development application but on the basis that the access over the adjoining land would have the status of a public road, thereby rendering it permissible. However, the applicant did not specifically identify the adjoining access as a public road on the various amended plans that it filed and served in December 2006. Instead, the access seems to have been first identified as a public road on engineering plans served on 13 February 2007. On 19 January 2007, the Registrar allowed the applicant to rely upon the amended plans dated December 2006 and fixed the proceedings for a hearing of four days, commencing on 27 February 2007. The matter then came before Commissioner Hoffman for a case management conference. Various issues were raised including further amended plans. This ultimately resulted in the applicant, on 22 February, seeking to vacate the hearing commencing on 27 February 2007. Apparently, by that time, the applicant appreciated that in order for the adjoining access way to be a public road, it would be necessary for a separate development application altogether to be lodged, in effect subdividing the then proposed public road from the balance of the adjoining land. As a consequence of the applicant's notice of motion, the hearing dates were vacated to enable the applicant to proceed to prepare and lodge the foreshadowed separate development application.

5 The matter came before the Registrar again on 6 March 2007. The Registrar again referred the matter to Commissioner Hoffman. The Commissioner must have been informed about the proposed separate application for subdivision because the Commissioner adjourned the case management for a further mention on 27 March 2007 to give the applicant the opportunity to make its development application for the public road. However, as the affidavit of Vincent Joseph Grech sworn 10 April 2007 discloses, some time in early March 2007 (but presumably after 6 March 2007) it became apparent that the adjoining owner (although a director of the applicant who had made the development application) would not agree to the use of their property for a public road purpose. As a consequence, the foreshadowed separate development application could not proceed.

6 The matter then came before Commissioner Hoffman on 27 March 2007 where the applicant, no doubt as a consequence of the position of the adjoining owner, informed the Commissioner that they wished to adjourn the proceedings to allow a notice of motion to be filed and served seeking to rely upon amended plans. The Commissioner declined to adjourn the proceedings and referred the matter to the Registrar for the fixing of a hearing date. It seems that the hearing date was fixed on 29 March 2007. On 3 April 2007 the applicant filed and served its notice of motion seeking leave to rely upon the amended plans, the hearing being scheduled to commence on 17 April 2007. The amended plans became available shortly before the hearing of this motion.

7 Both parties seem to accept that the inevitable result of the grant of leave to amend the plans will be the vacation of the hearing dates as, amongst other things, the development application if amended will need to be re-notified. Having seen the amended plans, I also accept that there would need to be evidentiary consideration of the different access proposal.

8 The application today has proceeded on the basis that there is no issue about the Court's power under cl 55 of the Environmental Planning and Assessment Regulation 2000 to grant the leave sought by the applicant (cl 55 provides that a development application may be amended or varied by an applicant with the agreement of the consent authority at any time before it is determined). The parties are at issue with respect to the exercise of the Court's discretion.

9 The applicant submits that: (i) if leave is not granted, the practical result will be that the current proceedings presumably will have to be discontinued because the development application would have to be abandoned, given the position of the adjoining owner, (ii) the applicant has brought the present application with reasonable expedition, recognising that the applicant first became aware of the altered position of the adjoining owner some time in early March 2007, and (iii) relevant circumstances include that the application is based on existing use rights and has already received extensive review by various experts.

10 The applicant submits that a balancing exercise between the prejudice it would suffer if forced to abandon the development application compared to the prejudice which the Council might suffer (being prejudice in truth limited to financial issues which can be cured by appropriate orders) indicates that the discretion should be exercised in its favour notwithstanding that the consequence will be to vacate the hearing dates. The applicant's counsel described the grant of the application to amend as an aspect of the demands of natural justice, involving the need to give the applicant an opportunity to pursue its development application even if that would lead to further delay in the resolution of the proceedings.

11 The Council's representative emphasises that the applicant took from 3 November 2006 until 13 February 2007 to clearly identify that it wished to use the adjoining access as a public road. In short, the applicant should have known whether it wished to proceed with the public road proposal or not and, I infer, also should have known whether the proposal was commercially feasible since very soon after 3 November 2006. However, the applicant did not place itself in the position of so knowing even though the Council, by 19 January 2007, had expressly raised the issue of the consent of the adjoining owner. Further, the only reason for the present application is a change in the commercial position of the adjoining neighbour. The proposed amendment thus does not arise out of any merits assessment of the development application but, rather, a change in commercial arrangements, which is an insufficient reason to exercise discretion in favour of the applicant.

12 I accept that, in the circumstances of this particular matter, it would not be reasonable to draw any inference adverse to the applicant for any of the effluxion of time between the class 1 application being filed and the resolution of the issues of law and fact resolved by delivery of the decision on 3 November 2006. The exercise of discretion should focus on the conduct of the parties and the events that occurred after 3 November 2006.

13 There were considerable shifts in the applicant's position after 3 November 2006. One such shift has already led to a four day hearing being vacated in order to give the applicant the opportunity to pursue the public road proposal - a proposal which it apparently discovered in early March 2007 would not be commercially feasible given the position of the adjoining owner.

14 Although the events since 3 November 2006 show that steps have been taken and energy used on matters which have ultimately proved inappropriate or fruitless, I consider that, nevertheless, it would be an appropriate exercise of discretion to allow this applicant leave to amend its plans as proposed, subject to certain issues to which I will return relating to costs and expenses.

15 Although there has been some delay on the applicant's part between becoming aware of the true commercial position of the neighbour in early March 2006 and the resolution of this notice of motion on 13 April 2007, the reality is that the consequence of refusing the grant of leave will be the abandonment of this particular development application. The proposed amendments are clearly a variation of the proposed development and are not so substantial as to suggest a wholly different development concept. When I weigh up the adverse consequence of the inevitable further delay to the final resolution of these proceedings against the potential financial prejudice to the Council, I consider that it would be inappropriate to decline leave to amend the plans, recognising that any financial impost on the Council can be cured by appropriate orders. This matter gives rise to tension between the proper need for proceedings to be dealt with as expeditiously as possible and the reasonable objectives of parties to have an opportunity to put their case before the Court. In all the circumstances, it seems to me that the discretion should be exercised in the applicant's favour, albeit on a conditional basis.

16 The Council's representative submits that from the Council's point of view everything that has occurred since 3 November 2006 will be wasted and there should be a general costs order in its favour running from that date. In addition, because the Council officers will need to reassess the development application, the Council should be paid the equivalent of the original development application fee, a sum of $8,754, as well as the statutory notification fee. The applicant submits that, given the compensatory object of any costs order, any appropriate costs should be limited to costs thrown away since 3 November 2006. Any equivalent development application fee should also be limited to any additional cost the Council incurs.

17 On the evidence before me, I consider it clear that the majority of the costs the Council would have incurred between 3 November 2006 and today's date will be wholly wasted. Although I accept there may be some small part of those costs that will not be truly thrown away, I am satisfied on the material that any such part will be insignificant in the overall scheme. It is also clear from the chronology that the applicant's conduct has put this Council to unreasonable additional expense by the way in which it has proceeded. I have in mind here the circumstance that the applicant was given an opportunity to amend the plans in December 2006. When it did so it did not show the adjoining access as a public road, even though I infer from Mr Grech's affidavit that it must have been its intention at the time. As a consequence, for example, when the Council filed its amended statement of issues on 18 January 2007, having consented to the applicant relying on that set of amended plans, it specifically raised an issue about the driveway being prohibited because the road was still shown as a private road. The applicant then, on 13 February 2007, served the Council with amended engineering plans, which for the first time showed the adjoining access as a public road. However, the next day the Council filed and served its engineering report that had already been prepared based on the application that was before the Court, followed by planning evidence on 16 February. At the same time the applicant maintained that it could proceed on the basis of the plans as then prepared, with the access issue being resolved by a deferred commencement condition. These are examples of matter that, in my view, would have put the Council to additional expense in relation to the conduct of this appeal. Accordingly, I am satisfied that this is a matter where, first, a costs order should be made running from 3 November 2006 and, secondly, the costs order should be in the form of the usual order as to costs rather than an order for costs thrown away. Given the length of time from the filing of the original appeal and these amended plans, it is also my view that the Council should be compensated by the payment of an equivalent fee to the original development application fee. It seems to me that it is almost inevitable that there will need to be a full assessment of the amended proposal.

18 Finally, given the common position of the parties, I accept that the consequence of the orders I am about to make will mean that I should also order vacation of the hearing date.

[The representatives addressed on costs of the motion]

19 In relation to the costs of the applicant's motion today, the Council opposed the motion. Although in my view that opposition was on appropriate grounds, the appropriate resolution of the costs of the motion today should be that each party pay its own costs of this motion.

20 I make the following orders: (1) Leave is granted to the applicant to file in Court and rely on the amended plans filed in Court on 12 April 2007 (being the plans listed in the Schedule dated 12 April 2007).

(2) The leave in order 1 is conditional on the applicant paying to the respondent: (a) the sum of $8,754.00, being an amount equivalent to the original development application fee - on account of the need for the respondent to assess the amended plans; and

(b) a fee for notification of the amended plans calculated in accordance with the Environmental Planning and Assessment Regulation 2000, within 14 days. (3) Vacate the hearing dates of 17-19 April 2007.

(4) The respondent is to file and serve an amended Statement of Issues by 23 May 2007.

(5) Proceedings are listed for a directions hearing before the Registrar on 25 May 2007.

(6) Order the applicant to pay the respondent's costs of the proceedings as agreed or assessed from 3 November 2006 to 12 April 2007, other than the costs of the applicant's notice of motion filed 3 April 2007 in respect of which each party is to pay its own costs.

(7) Liberty to restore on 48 hours' notice.

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