Freemo Enterprises Pty Ltd v Hawkesbury City Council

Representation: Counsel:
D Russo (Solicitor), Applicant (Respondent on the Notice of Motion)
C Rose (Solicitor), Respondent (Applicant on the Notice of Motion)
Solicitors:
Hawkesbury Legal Centre, Applicant (Respondent on the Notice of Motion)
Wilshire Webb Staunton Beattie Lawyers, Respondent (Applicant on the Notice of Motion)

File Number(s): 2025/00069886

Publication restriction: Nil

ex tempore JUDGMENT

Motion and Factual Background

1. By Notice of Motion filed 2 April 2025, Hawkesbury City Council (the Council) seeks an order that this Class 1 proceeding be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR).

2. Rule 13.4 relevantly provides that:

13.4 Frivolous and vexatious proceedings

(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

3. The motion is supported by an affidavit of Dylan Taylor affirmed on 2 April 2025. Mr Taylor is the solicitor on record for the Council.

4. The proceeding arises out of a Development Control Order (DCO) issued by the Council on Good Az Gold Pty Ltd (Good Az Gold) dated 7 February 2025. The DCO is a “Stop Use Order” and a “Restore Works Order” within items 1 and 10 of Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The order relevantly states as follows:

"The Order is to be given to the Proper Person, Good Az Gold Pty Limited, 18-30 Macquarie Street, Windsor, NSW 2756.

Reasons for the Order:

A. The use of the premises for the purpose of transport depot is defined under the HLEP 2012 is prohibited development in the Zone E2 Commercial Centre & RE2 Private Recreation zone and subject to all flood controls.

B. A review of Council’s register of consents confirms that no development consent has been granted for any of the above activities.

C. Use of the premises for the above purposes is therefore occurring contrary to and in breach of the Environmental Planning and Assessment Act 1979 and is unlawful.

Terms of the Order:

Stop Use Order no. 1

a. To stop using premises – for conducting the activity on the premises for the purpose of a transport depot as defined under the HLEP 2012.

b. All buses/heavy vehicles currently utilising the site including any/all workshops, shipping containers, caravans or site sheds are to be removed.

c. All buses/heavy vehicles are to cease traversing entry/exit access via 25 Bridge Street Windsor observed to be causing hazardous conditions to traffic.

Restore Works Order no. 10

a. To remove unauthorised landfill material and restore the premises to the condition in which they were before the unlawful earthworks occurred."

5. The premises to which the DCO relates are Lot 101 DP 1151845, 18 Macquarie Street, Windsor, NSW 2765 (the S****ite). Freemo Enterprises Pty Ltd (Freemo) is the owner of the Site. Good Az Gold was a leasee at the time that the DCO was given, but appears to have since vacated the Site. On 21 February 2025, Freemo filed its Class 1 application. It is an appeal purportedly under s 8.18 of the EP&A Act, which is in the following terms:

8.18 Appeals concerning orders

(cf previous s 121ZK)

(1) A person who is given a development control order may appeal to the Court against the order.

Contentions of the Parties

Council

6. The basis for the Council’s motion seeking dismissal is that Freemo does not have a right of appeal under s 8.18. It may be the owner of the Site, but it was not the person who was “given” the DCO. Only such a person has a right of appeal. As such, the Council (who was represented by Ms C. Rose, solicitor) submitted that the application did not disclose a reasonable cause of action, and that it should be summarily dismissed, citing what is commonly referred as the General Steel test, and the power given under r 13.4: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129; [1964] HCA 69; see also Joseph v Kiama Municipal Council [2023] NSWLEC 148 at [60]-[61] per Robson J.

Freemo

7. In its written submissions, Freemo (who was represented at the hearing of the motion by Mr D. Russo, solicitor) concedes that the DCO was “not addressed” to it, but rather to Good Az Gold (Freemo’s submissions at [5] and [6]). It also submits that the DCO was “‘given’ to the applicant’s former tenant” (Freemo’s submissions at [28]), which I take to be a reference to Good Az Gold.

8. Freemo nevertheless resists the Council’s motion on the following bases:

(a) it submits that the DCO on its face provides for an appeal right by “any other person affected by the Order”; (b) it submits that the DCO is restricting buses, heavy vehicles, and caravans entering the site, and therefore infringes upon Freemo’s lawful right to use the site for an approved purpose; (c) it asserts that the DCO restricts access to the site via Bridge Street, which is its legal right of access via a registered easement; (d) it asserts that the Council has acted “ultra vires” in issuing the DCO which restricts access to the site; (e) it asserts generally that the DCO was given to it rather than to Good Az Gold ([24]-[29] of Freemo’s written submissions); and (f) it submits that the Stop Use Order “exceeds legal authority and is therefore void” for reasons largely to do with the fact that the DCO mentions that any other person affected by the order may appeal.

Resolution

9. Freemo is not a person who has been “given” a DCO within the meaning of s 8.18 of the EP&A Act. The person “given” the relevant DCO was Good Az Gold. Nothing in Freemo’s submissions addressed this fundamental point, other than to concede it. Apart from the DCO expressly stating that the order is to be “given” to Good Az Gold, clause 4 of Part 4 of Schedule 5 of the EP&A Act provides as follows:

4 Giving and taking effect of orders (cf previous ss 121N, 121U)

(1) A development control order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

10. Again, the entity that the DCO was addressed to was Good Az Gold, not Freemo. Freemo, therefore, has no right of appeal under s 8.18 of the EP&A Act, and the proceedings should therefore be dismissed as sought by the Notice of Motion.

Section 145B of the Civil Procedure Act 2005

11. At [31] of its written submissions, Freemo submits that:

"Alternatively, if it is determined this honourable Court has no jurisdiction to deal with the appeal of Freemo Enterprises Pty Ltd, we request leave to submit a notice of motion seeking the transfer of these proceedings to the Supreme Court, pursuant to s 149B of the Civil Procedure Act 2005."

12. I decline to make that order. First, the proceedings are dismissed. There is nothing to transfer. In any event, these were Class 1 proceedings in which a purported (but not actual) right of appeal was sought to be exercised. They were not judicial review proceedings brought by the person (Good Az Gold) who was the subject of the DCO. I therefore would not have been satisfied that it was appropriate to transfer them to the Supreme Court pursuant to s 149B of the Civil Procedure Act 2005 in any event.

Costs

13. The Council seeks an order for costs of the proceedings. The award of costs is a discretionary matter for the Court: s 98(1)(a) of the Civil Procedure Act 2005. However, it is also subject to r 3.7 of the Land and Environment Court Rules 2007 (LEC Rules) which relevantly provide as follows:

3.7 Costs in certain proceedings

(cf Land and Environment Court Rules 1996, Part 16, rule 4)

(1) This rule applies to the following proceedings:

(a) all 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.

(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:

…

(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.

14. In CWO Pty Ltd v Muswellbrook Shire Council (No 2) [2024] NSWLEC 115 Duggan J made the following observations at [12]-[13] of her judgment:

"12. As is well-established, r 3.7(2) of the LEC Rules creates the presumption that there be no orders as to costs in such proceedings unless it would be “fair and reasonable” to do so in the circumstances: Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 (Dunford No 3) at [23]-[37] (per Sheahan J); Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116 at [10]-[14] (per Robson J). Rule 3.7(2) is underpinned by the “no discouragement” principle, according to which persons should not generally be discouraged from exercising their rights of appeal in relation to planning decisions by reason of the prospect of an adverse costs order: Port Stephens Council v Sansom (2007) 156 LGERA 125 (Sansom) at [22]-[23] (per Spigelman CJ).

13. Determining the question as to whether it is fair and reasonable in the circumstances such that the relevant presumption should be displaced calls for an evaluative determination, as opposed to the exercise of discretion, albeit the former still involves the conferral for a wide degree of discretion: Sansom at [51]."

15. Turning to the facts here upon which the costs order is sought by the Council, reference is firstly had to an email from Cecilia Rose to Preeti Karan (a solicitor acting for Freemo) of 25 March 2025, which is Annexure D to Mr Taylor’s affidavit. In that email Ms Rose makes certain observations, including that (and I am summarising) Freemo was not given the DCO and therefore had no right of appeal pursuant to s 8.18 of the EP&A Act, and that Freemo was not affected by the DCO.

16. On 28 March 2025 Ms Rose sent a further email to Ms Karan in which she stated (and again I am summarising):

17. there was no jurisdiction for Freemo to lodge an appeal because it had no right of appeal under s 8.18 as it was not the person to whom the DCO was given;

18. Freemo should not be concerned about the DCO because it was not directed to them, and that Council could not take any action in respect of Freemo because of this; and

19. the order does not prevent access “by the tenant to the site, as long as the tenant is not accessing the site in pursuance of the use of the land as a transport depot, or for the purpose of storing their vehicles on the site.”

20. At least r 3.7(3)(d),(f)(i) and (ii) LEC Rules are relevant here. Freemo has commenced and continued this proceeding where it did not have a reasonable prospect of success. More than once the Council pointed out, correctly, that was the case. Further, the Council gave certain reassurances to Freemo in the email exchanges I have referred to above. I am therefore satisfied that the matters raised by the Council in the emails of 25 and 28 March 2025 were of sufficient relevance and weight that they displace the presumption that the Court would not ordinarily make an order for the payment of costs in Class 1 proceedings.

Orders

18. For the reasons set out above, I order as follows:

19. The Class 1 proceeding brought by Freemo Enterprises Pty Ltd against Hawkesbury City Council is dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005.

20. The Applicant (Freemo Enterprises) is to pay the Respondent’s costs of the proceeding, including the Notice of Motion filed 2 April 2025 and heard 8 April 2025.

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