By notice of motion filed 23 December 2019, the first and second respondents, Mr and Mrs Cavasinni, seek the vacation of the hearing dates of 3 and 4 February 2020 of the substantive proceedings. The applicant in the substantive proceedings, Mrs Dolly Diab, opposes the vacation of the hearing dates.
Mrs Diab commenced the proceedings on 15 December 2017. They are civil enforcement proceedings, in Class 4 of the Court's jurisdiction, to remedy and restrain breaches of the Environmental Planning and Assessment Act 1979 resulting from Mr and Mrs Cavasinni, and the third respondent, Cavcorp Australia Pty Limited, carrying out a residential development on their land at 27 Nelson Parade, Hunters Hill, otherwise than in accordance with the development consent DA08-1096 granted by this Court by consent orders in 2010.
The points of claim identify most respects in which the development has been built not in accordance with the development consent and approved plan (see paragraphs 35-37 of the points of claim). The amended summons seeks orders that the respondents carry out remedial work to rectify the unauthorised building and works (see paragraph 2 of the amended summons).
The respondent would appear to accept that at least in some respects development has been carried out otherwise than in accordance with the development consent and the approved plans. To remedy these unauthorised works, the respondents have made an application to modify the development consent, modification application 2008-1096-1, to Hunters Hill Council on 14 September 2018. This modification application was recently refused by the Council on 19 December 2019.
The proceedings were first fixed for hearing, at a directions hearing on 11 May 2018, on 3 to 5 October 2018.
Mrs Diab corresponded with Mr and Mrs Cavasinni about vacating those dates. Mrs Diab noted that Mr and Mrs Cavasinni had indicated that they were proposing to make an application to modify the development consent with a view to rectifying the breaches alleged by Mrs Diab. Mrs Diab indicated that as she would be overseas at the time fixed for the hearing on 3 to 5 October 2018, and in order to enable Mr and Mrs Cavasinni to make the modification application, she proposed vacation of the hearing. Mr and Mrs Cavasinni agreed to the vacation of the hearing. Mrs Diab accordingly applied to the Court and the Court agreed on 10 August 2018 to vacate the hearing on 3 to 5 October 2018.
On 7 September 2018, the Court again fixed the proceedings for hearing, this time on 18 to 20 February 2019.
On 14 September 2018, Mr and Mrs Cavasinni lodged with the Council the modification application earlier referred to.
On 14 December 2018, Mr and Mrs Cavasinni applied, and the Court agreed, to vacate the hearing on 18 to 20 February 2019.
On 3 July 2019, the Court again listed the proceedings for hearing on 3 and 4 February 2020. I consider that the hearing of the proceedings should not be vacated this time. I have seven reasons.
First, there is no presumption that Class 4 proceedings, of the kind brought by Mrs Diab, should be adjourned in order for Class 1 proceedings to be heard and determined first. Mr and Mrs Cavasinni relied on s 9.46(3) of the Environmental Planning and Assessment Act 1979. That provision states that where a breach of the Act would not have been committed but for the failure to obtain a development consent, the Court upon application being made by the defendant, may adjourn the proceedings to enable a development application to be made in order to obtain the consent.
In this case, the breach alleged by Mrs Diab is not that Mr and Mrs Cavasinni and Cavcorp Australia Pty Limited failed to obtain a development consent, but rather that they carried out development otherwise than in accordance with that consent. Furthermore, the respondents do not seek to make a development application to obtain development consent, but rather have made application to modify the current consent. As a consequence s 9.46(3) does not strictly apply.
Nevertheless, I accept that the Court has the power to vacate Class 4 proceedings and adjourn the hearing of those proceedings until after any Class 1 proceedings have been heard and determined. My point is simply that there is no presumption that that course will be adopted in circumstances such as the present case. There is a general power to adjourn proceedings under s 66 of the Civil Procedure Act 2005. It is that power that would be exercised if the orders sought in the notice of motion in this case were to be made.
Secondly, I consider that the respondents have delayed in making this application that Class 4 proceedings be adjourned until after Class 1 proceedings have been heard and determined. As earlier noted, the development consent was granted in 2010. The respondents carried out development purportedly in accordance with that development consent thereafter. On 27 October 2015, Hunters Hill Council commenced Class 4 proceedings against the first respondent for carrying out works on the property contrary to that development consent. On 11 April 2017, the summons in the Council's proceedings was amended to add Mr Cavasinni as another respondent.
On 2 June 2017, the Council's proceedings were resolved by consent orders. Those consent orders included orders that the respondents undertake certain remedial work to rectify buildings, structures, or works that have been carried out otherwise than in accordance with the development consent. There was also a purported modification of the development consent to add additional conditions to the development consent. Notwithstanding these proceedings, the respondents allegedly undertook further unauthorised works in completing the development on their land. This led to Mrs Diab bringing these proceedings in 2017.
The respondents delayed making a modification application until the next year in September 2018. In the meantime, as I have said, the proceedings brought by Mrs Diab alleging unauthorised works had been listed for hearing. That modification application, lodged in September 2018, was not determined by the Council until December 2019, some 15 months after the modification application had been lodged. Whilst Mr and Mrs Cavasinni said they had followed up the Council urging it to consider and determine their modification application, they elected not to lodge an appeal to this Court against the deemed refusal of that application. This could have been done around 40 days after the modification application had been lodged in September 2018, and could have continued to have been done for six months after the date of deemed refusal was activated. Mr and Mrs Cavasinni have therefore delayed rectifying the alleged breaches of the development consent for some years.
Thirdly, there have already been two vacations of the hearings fixed by the Court. True, one of those applications to vacate was formally made by Mrs Diab, whilst the other was made by Mr and Mrs Cavasinni. Nevertheless, the application by Mrs Diab had, as at least one of the reasons, the fact that Mr and Mrs Cavasinni proposed to lodge a modification application with a view to rectifying the alleged unauthorised works or alleged breaches of the development consent by the unauthorised works.
The result has been that from the first hearing fixed in October 2018, the second hearing in February 2019, and now the third fixed in February 2020, there would be a number of years before this matter would have been brought on for hearing. To vacate yet again the hearing puts back the just, quick, and cheap resolution of these proceedings. The applicant, Mrs Diab, is also entitled to have her proceedings heard within a reasonable period of time. The vacation of the hearing in February 2020 would not enable her to have her proceedings heard in a reasonable time.
Fourthly, insofar as Mr and Mrs Cavasinni's modification application is intended to rectify breaches of the development consent and hence Environmental Planning and Assessment Act, it is instructive to define what the particular breaches are. This can only occur in the Class 4 proceedings. The Court would not declare what the breaches of the development consent are in any Class 1 appeal against the Council's refusal of the modification application. The Court would only determine whether the particular modifications of the development consent sought are appropriate in the circumstances. The resolution of the Class 4 proceedings of what the breaches are would therefore assist in defining and refining the modification application to be determined in the Class 1 proceedings.
Fifthly, there should be no presumption that the resolution of the Class 1 modification application appeal will resolve all matters in issue in the Class 4 proceedings. The Council, in refusing the modification application on 19 December 2015, considered that some of the modifications sought in the modification application were appropriate but many others were not appropriate for a variety of reasons given in the council officer's report. Whilst Mr and Mrs Cavasinni in preparation for and at the hearing of the appeal against the Council's refusal of the modification application may adduce evidence and make submissions to address the council's concerns, there still is a prospect that the Court might likewise conclude that some modifications are appropriate to be approved but others are not appropriate to be approved. If this were to occur, the Court would still need to determine in the Class 4 proceedings what remedy, if any, should be ordered for the breaches that will not be rectified by any modification of the development consent. Accordingly, resolution of the Class 1 appeal will not be dispositive of the Class 4 proceedings.
Sixthly, any appeal against the Council's refusal of the modification application can still be prepared and heard, regardless of any hearing of the Class 4 proceedings on 3 and 4 February 2020. Put another way, the hearing of the Class 4 proceedings will not affect the preparation and hearing of the Class 1 proceedings, which will occur months after the hearing of the Class 4 proceedings on 3 and 4 February 2020.
Seventhly, the concern that there may be an overlap between the issue in the Class 4 proceedings of the appropriate order that should be made to remedy any breaches found by the Court to have been established, and the issue in the Class 1 appeal of whether it is appropriate to modify the development consent to allow the building structures or works erected in breach of the development consent to remain by modifying the consent, can be addressed by ordering a staged hearing of the Class 4 proceedings: first, the question of any breach of the development consent and Environmental Planning and Assessment Act and, secondly, the question of what remedy, if any, should be granted in respect of any established breach. The first stage of breach can be conducted on the dates already fixed of 3 and 4 February 2020. The second stage of remedy for any breach can be adjourned until after the resolution of the Class 1 modification application appeal.
During submissions on the hearing of the notice of motion, I raised the possibility of this staged approach and sought the parties' views as to whether that approach would be appropriate. After seeking instructions, Mr and Mrs Cavasinni agreed that that staged approach could be pursued. They sought, in effect, to amend the order sought in their notice of motion to seek for the question of breach to be heard and determined separately from other questions in the proceedings including any remedy for any established breach, under Pt 28 of the Uniform Civil Procedure Rules 2005. Mr and Mrs Cavasinni proposed a timetable in order to prepare for the hearing of the separate question of breach on 3 and 4 February 2020.
Mrs Diab also agreed to this staged approach of determining first a question of breach but, in addition, sought that limited questions of remedy in relation to certain breaches be heard at the hearing on 3 and 4 February. These limited questions related to the orders in paragraph 2(b), (d), (e), (f), (g), (h), and (j) of the amended summons. Mrs Diab submitted that the Court should determine whether or not to grant the orders that Mr and Mrs Cavasinni undertake the remedial works sought in those orders rather than leave the question of remedy to the Class 1 appeal. Mrs Diab also sought two further orders in addition to the directions proposed by Mr and Mrs Cavasinni of, firstly, the respondents being ordered to take all reasonable steps to have the Class 1 proceedings heard and determined expeditiously and, secondly, that the applicant, Mrs Diab, be joined to any Class 1 appeal brought by Mr and Mrs Cavasinni against the Council's refusal of its modification application.
I consider that the course of determining the question of breach of the development consent and the Environmental Planning and Assessment Act separately from other questions, including any remedy that should be granted for any established breach is the preferable course, for the reasons I have mentioned earlier. I do not consider that questions of remedy should be determined at the hearing of the question of breach but, instead, should await the hearing and determination of the Class 1 modification application appeal.
Mrs Diab can raise her concerns about what should be the appropriate remedy for any breach that has been established in the hearing of the Class 1 modification application appeal. She can apply to be joined to that proceeding. This can be done within the next month. I do not consider it appropriate to include any questions about what remedy should be granted for any breach that has been established in the first stage of the hearing of the Class 4 proceedings. It would close options available that should be determined in the Class 1 modification application appeal.
In the course of hearing that Class 1 modification application appeal, the respondents may well seek to amend the current modification application made back in September 2018 in order to address Mrs Diab's concerns as well as the Council's concerns. Any such modification or any such amendment of the modification application may well achieve a satisfactory outcome. For example, Mr and Mrs Cavasinni may choose to withdraw some of the modifications that they proposed in the modification application made in September 2018. They may do this for a variety of reasons. One reason might be that they choose to carry out remedial work so as to rectify a particular breach. Upon doing that remedial work, there would no longer be any purpose to seeking to modify the development consent so as to allow those works carried out in breach of the development consent to remain by a modification of the development consent.
Alternatively, Mr and Mrs Cavasinni may amend the modifications they seek. For example, they may propose different landscaping to what was proposed in the modification application made in September 2018, which amended landscaping may be found to be acceptable by Mrs Diab and/or the Council. This flexibility in pursuing the appropriate remedial work should be allowed. Resolution of the remedy for any breach in the Class 4 proceedings prior to the hearing and determination of the Class 1 proceedings, would preclude this flexibility.
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Costs
Mrs Diab applies for an order for costs, that her costs on the notice of motion be paid by the respondents. The respondents submit that instead an order should be made that costs be costs in the cause. Mrs Diab submits that a costs order should be made in her favour by reason of the delay in the respondents submitting their modification application and any appeal in respect of the modification application not being dealt with expeditiously. She refers to the Court's noting on 14 December 2018 the respondents' undertaking to the applicant that they will make all reasonable efforts to have the modification application currently before the Council and any appeal in respect of it determined as expeditiously as possible, and if no appeal is brought, to have the present proceedings, being the Class 4 proceedings, heard as expeditiously as possible.
Ms Diab referred to my reasons for judgment given above that there was delay in appealing to this Court. The respondents could have appealed against the deemed refusal of the modification application made to the Council eight or nine months before they eventually did so.
The respondents, on the other hand, say that that particular undertaking did not include an appeal against the deemed refusal. Rather it was referring only to an appeal against an actual refusal of the modification application by the Council. The respondents note that once the Council did refuse the modification application on 19 December 2019, they within days lodged an appeal to the Court, or made application to the Court to modify the development consent.
The respondents also say that they have been partially successful in having the question of remedy of any breach established dealt with after the hearing determination of any Class 1 appeal or application. Finally, the respondents submit that the subject matter of the notice of motion is sufficiently connected to the substantive proceedings that it would be appropriate to make an order that costs be costs in the cause, rather than make a separate order in respect of the notice of motion.
Although the matter is finely balanced, I consider that the better order is that an order for costs be made. The notice of motion to vacate the hearing was a discrete matter. It was not connected to the substantive proceedings. It can be isolated. The preparation for and hearing of the notice of motion took place within a matter of days. It will be possible to identify the costs incurred in relation to the notice of motion.
For the reasons I gave earlier, I was not persuaded that there should be a vacation of the hearing date for the Class 4 proceedings. Although I have modified the subject matter of the hearing by limiting it to the separate question of breach of the development consent and the Environmental Planning and Assessment Act and not any remedy that should be granted for any established breach, that separate question of breach is still at the substantive heart of the proceedings. One, of course, does not get to the question of remedy for breach until one determines that there is a breach.
The respondents sought to have that question of breach deferred until after any Class 1 appeal or application in respect of the modification application was heard and determined. They were not successful in that application.
Costs, of course, are not punitive. There are compensatory. The question is should the applicant in the proceedings, Mrs Diab, be compensated for the costs of the application made by the respondents in the proceedings, Mr and Mrs Cavasinni and Cavcorp Australia Pty Limited. I have determined that they should be compensated. Costs ordinarily follow the event, the event in this case is that the hearing dates have been maintained, albeit in respect of the question of breach only.
[3]
Orders
For these reasons, I make the following orders:
1. The question of breach of the development consent and the Environmental Planning and Assessment Act 1979 is to be heard and determined separately from any other question, including the appropriate remedy and relief that should be granted by the Court in relation to any breach found.
2. The separate question of breach, ordered in order 1, is to be heard and determined on the dates fixed for hearing on 3 and 4 February 2020.
3. The respondents are to file and serve amended points of defence by 5pm 8 January 2020.
4. The respondents are to file and serve any additional evidence on the separate question of breach by 15 January 2020.
5. The applicant is to file and serve any evidence in response to the respondents' evidence by 24 January 2020.
6. The parties' experts, grouped in each discipline, are to confer with a view to providing a joint expert report to the parties and the Court by 12 noon on 31 January 2020.
7. The respondents are to take all reasonable steps to have any class 1 appeal or application concerning their modification application heard and determined expeditiously.
8. The respondents are to pay the applicant's costs of the respondents' notice of motion filed on 23 December 2019.
[4]
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Decision last updated: 20 January 2020