Gunning Shire Council v Phantastes

These class 4 proceedings were settled and consent orders were made by Cowdroy J on 9 October 2000. Both parties are seeking an order for costs in their favour in respect of both the settled proceedings and the Notice of Motion for costs.

Mr Phantastes' dealings with the Council over the use of his land, and development of a gallery on it, at Collector, have a long and quite complex history, relevantly beginning with a development application/development consent (DC92/12) in May/June 1992 for a "sculpture studio/gallery" and/or "sculpture workplace".

He commenced construction of a major sculpture on the land in about 1994. There is no specific development consent regarding that construction, but there is evidence that the Council knew that something of its nature, if not of its eventual size, formed part of his concept of the gallery development.

Some sculpture was observed, and photographed, by Council Officers in August 1994.

Mr Phantastes obtained a building approval for a "workshop" on 10 March 1995, but that development seems unrelated to the proposal which received consent in 1992.

The sculpture was observed by the public, and by Council officers, to develop gradually over time. It appears to have achieved, or gone close to achieving, its current dimensions (27m x 7m), by late 1995.

It attracted public attention when publicised in "The Land" newspaper in January 1996. That article came to Council's attention, but, at the same time, the dimensions of the sculpture were such that it attracted the coverage of the Building Code of Australia.

Consent DC 92/12 lapsed on 18 June 1997, without determination of a modification application made on 11 November 1996.

Council issued an order under s 121B of the Environmental Planning & Assessment Act 1979 ("EP&A Act"), on 22 March 1999, requiring the demolition of those portions of the sculpture constructed after 10 August 1994.

The respondent did not challenge that order but embarked upon a dialogue and negotiations with the Council, including a site inspection by Council on 19 April 1999, during which Council agreed to defer the enforcement of its order, subject to assessment of a new development application, to be lodged within one month, relating to "the sculpture, awning, water tower and shipping containers". Mr Phantastes made a presentation regarding his "proposed development application".

The March 1999 order was not issued peremptorily. Council had relevantly issued an earlier order to cease work on the structure in April 1997. That order indicated demolition as a possible outcome. Council had written to Mr Phantastes on 6 November 1996 inviting submission of an appropriate development application to "regularise" the sculpture. In his letter to Council of 23 January 1997, Mr Phantastes himself expressed some concern regarding the stability of the works he was doing when ordered to cease work.

Council documents in April 1999 speak of the sculpture having "evoked widespread community involvement … media attention [and] … many submissions", and of Council aiming for a compromise with Mr Phantastes.

Council wrote on 21 April 1999 to Mr Phantastes, confirming the discussions on site, and setting 14 May 1999 as the deadline for his development application and supporting material.

Mr Phantastes lodged development application 99/8, dated 11 May 1999. It was placed on exhibition and Council then wrote on 1 July 1999 saying, inter alia: As you are aware the sculpture is a contentious issue in Collector and Council has sought to seek a compromise position for your development. The current proposal is unsatisfactory due to large impact on the adjoining neighbours. It is suggested that the method of fixing the sculpture be modified to minimise the impact on the surrounding amenity. However, any alterations must be certified by a qualified structural engineer.

On 27 July 1999 Mr Phantastes responded saying, inter alia: …You have suggested I modify my engineer-designed plans for the 'Dreamer's Gate' entrance. After serious consideration, I have decided not to alter in any way those plans certified by 'Sellick Consultants' structural engineers. I hope the following reasons will explain why I have reached this decision.

Council seems to have been happy in August 1999 to consider revoking its March order, and/or issuing a building certificate, and/or granting development consent for any use or alteration of the structure. Mr Phantastes' neighbours had submitted some structural engineering views, and Council wanted some expert response from Mr Phantastes, and/or his consulting engineers.

A further Council visit of inspection was set for Monday 27 September, and Mr Phantastes made a presentation to Council in October 1999. On 18 October 1999 Council reconsidered its officers' report which included the following: It is considered that the sculptural development does not unreasonably impact on the visual amenity of the locality. It may be reasonable for Council to refuse the proposed method of propping the sculpture to shipping containers as this appears to be makeshift and is likely to detract from the amenity of the land. The intention to incorporate the awning into the sculptural development may be acceptable given the imposition of suitable conditions in the development consent regarding the requirements to maintain the local amenity and complete the project within a specified timeframe.

The surrounding developments must be taken into account when assessing the impact of any subsequent development. It is considered that the potential for noise generation is potentially greater from the neighbouring engineering workshop.

The proposed development will potentially increase the amount of pedestrian and vehicle traffic along the western dividing fence of the property. As the neighbour's driveway is adjacent to the proposed driveway/entrance way this will assist in minimising the potential conflict arising from noise and dust from both of the developments.

The revegetation of the wetland proposed in stage two of the development provides an opportunity for increasing the amenity of the wetland and lowering of the local water tables, which are known to be high in the area.

Council resolved on 18 October 1999 that it had no objection to the sculpture "in terms of visual, social or related amenity", but, because it still had not been provided by the respondent with unqualified engineering certification of the sculpture, Council resolved to enforce the March order by bringing these proceedings.

Council had before it by then the General Manager's note of 16 September 1999 (Exhibit R1), commenting as follows on Mr Phantastes' engineering advice: With respect to the additional information from the applicants consulting engineer (Sellick Consultants Pty Limited) dated 13 September 1999 it is my opinion that this report is comprehensive and 'is heading in the right direction' with respect to proper and adequate certification of the structural integrity of the sculpture.

It is acknowledged that further details of structural modification are yet to be developed (see clause 7.0 Recommendation by Sellick). The applicants Consulting Engineer have suggested that they require further to adequately address this issue.

It is noted however that it is not a difficult task to provide a technical engineering solution with respect to strengthening the existing sculpture to satisfy Council's responsibility to ensure public health and safety.

It is recommended that Council accept the structural certification for strengthening the existing sculpture from Sellick Consultants 'in principle subject to further structural information on modifications required and that this is to be received within two (2) months.'

The class 4 application was filed on 27 October 1999, and sought an order from this court that Phantastes comply with the Council's demolition order. Council filed its affidavits and Points of Claim in December 1999. The respondent filed his affidavits on 12 January 2000. Negotiations continued, but on 4 February 2000, the hearing was fixed for 20-22 March 2000.

On 11 February 2000 Mr Bradbury wrote to Mr Phantastes, inter alia, as follows: The Council is prepared to try to resolve the dispute by Court appointed mediation. As I have explained to you on a number of occasions, however, there is little scope for resolution of the matter until you put forward a specific proposal, supported by appropriate engineering detail, to stabilise the existing sculpture. Unless your engineer is prepared to certify that the proposed frame structure will render the sculpture structurally sound there would not appear to be much room for negotiation.

He replied on 17 February: The awning, shipping containers and tank stand have been placed on Lot 2 as stored building material. They have not been erected, and would only be done so with engineering certification and Council approval.

I gave assurance that I would compromise my sculpture by attaching it to bracing framework before the demolition order was reinstated. That assurance still stands.

I have sought details of compliance of structures on Lot 1 to the B.C.A. for the same reason my neighbors (sic) expressed concern with my sculpture - in the interest of safety and conformity with Council regulations. Despite numerous letters to this effect, I have been given no response from Council.

I am being treated differently to other residents of Gunning Shire by Council.

Family tragedy intervened and the hearing was vacated twice. Mr Phantastes's son unfortunately passed away in July, shortly after the hearing was fixed for 9-11 October 2000.

On 30 June 2000 Mr Edwards of the Council wrote to Mr Phantastes in these terms: During conversations held with myself on 5th May 2000 and 26th June 2000 I have endeavoured to explain the process employed in the assessment of the de bruin shed extension and encourage you in your endeavours to sort out the situation surrounding the 'Dreamers Gate' sculpture.

Your documentation of these conversations seems to contain inaccuracy, misinformation and misquotation.

I therefore believe that the forum for further discussions/correspondence on the subject issues is via mediation under the auspice of the Land and Environment Court. I look forward to participating in a productive mediation process and work toward positive outcomes regarding the above.

On 10 July 2000 Mr Bradbury wrote to Mr Phantastes' then solicitor Mr Bartlett: … 2. Visual impact - your client's previous proposal to support the existing structure by bracing in with old shipping containers and the awning from a disused service station are simply not acceptable in terms of visual impact. These types of structures are simply out of place in this location.

It is important for your client to keep in mind that the proceedings before the Court seek orders requiring the demolition of the existing sculpture. There appears to be no dispute that the structure has been erected without consent and prima facie the Council is entitled to the relief it is seeking.

If your client wishes to avoid this outcome it is really up to him to provide satisfactory engineering evidence relating to the structural integrity of the existing sculpture. As we have indicated above, a proposal that utilises old shipping containers and an awning from a disused service station is not considered to be appropriate.

A further application to vacate the hearing was denied by Talbot J on 3 October 2000, and the matter was settled, with consent orders being entered on the first hearing day, 9 October.

The evidence clearly shows that Council's objective was not demolition per se, and that Council made that clear to Mr Phantastes. Council was concerned with visual impact issues, and issues of stability and public safety. Sworn evidence on the latter concern was filed and served in December 1999 (see affidavit of Alan Tingcombe of 2 December 1999).

Mr Phantastes seems to have persevered far too long with his expert advisor, who was reluctant to participate with him in an often suggested mediation which never took place. He, during that time, had only sporadic legal advice. Once he engaged Mr Reid and Mr Tonkin, and Mr Tonkin's draft affidavit was served, the case was settled within days.

Much of the evidence he has presented, and the submissions he has made, today, really go to matters the court would have considered at a trial of this case, especially on the question of discretion. They are not relevant on the question of costs. See Marrickville Council v Syfurn [1999] NSWLEC 71.

When the court comes to the question of costs in class 4 matters which have been settled it applies the principles I set out in my judgment in Beilby v Viney Pty Ltd & Anor [2000] NSWLEC 93, especially at pars 42-54, which include (at par 50) reference to Syfurn.

Those costs principles were discussed in general terms in Council documents to which Mr Phantastes has referred in one of his affidavits of 22 January 2001, and I gave him a short adjournment to read Beilby v Viney before closing his submissions.

I do not stay to go through all those principles, but I adopt those paragraphs of Beilby v Viney for application to this present case.

Mr Phantastes submits that it was he who succeeded in the litigation - the consent orders did not require demolition, and the conditions imposed on his avoiding demolition were less onerous than the Council had sought.

In fact, both the orders sought in the class 4 application, and those consented to on 9 October 2000, do require demolition, and had he not satisfied the other conditions, demolition would have been required by now.

Council, therefore, must be regarded as having won all the relief it sought, and as being vindicated by the settlement it reached with Mr Phantastes. See e.g. Port Stephens Council v Grivas [1999] NSWLEC 135, referred to in pars 48-49 of Beilby v Viney.

The test in Jan Yee Australia Pty Ltd v Woollahra Council & Anor (40232 of 1995, 26 March 1997 - see Beilby v Viney at par 52), when applied to the evidence before me now in this case, leads me to conclude that these "proceedings were justifiably commenced, justifiably continued, justifiably settled and in all probability would have succeeded… had they been fully litigated".

On the evidence and submissions presented by Mr Phantastes I am satisfied he had a genuine argument to mount against an order that he pay the Council's costs, as sought in Council's Notice of Motion of 24 October 2000.

However, he has made out no case at all in support of the court's making an order that Council should pay his costs, as sought in his Notice of Motion of 2 November 2000. True it is that the parties have agreed that I should today discharge the demolition order made by this court, calling up the order made in March 1999 by the Council, but that flows from Mr Phantastes' agreeing with the Council on appropriate consent orders to resolve the litigation, and then complying with the conditions.

Mr Phantastes' evidence indicates that he has had a difficult time in his dealings with Council, but Councils are charged with serious duties, which often do not sit lightly with their constituents. Putting his case at its highest I can find no evidence of what the authorities call "disentitling conduct" on the part of this Council in this case, such that the court should deny it an order for costs to which it might otherwise be entitled.

I have concluded, therefore, that the Council should have an order for costs in its favour, but I have taken two other issues into consideration.

Firstly, the finalisation of this dispute and this litigation was punctuated by the tragic death of the respondent's son, and I do not consider that the respondent should be visited with all the costs that may have flowed from the vacation of the hearing dates on two occasions.

Secondly, while the means of a party should not influence the making of an order for costs, of its nature compensation and not punishment, it would appear, from such evidence as there is before me, that Mr Phantastes may experience some hardship in meeting an order for costs, and I will, therefore, stipulate a substantial period of time to pay.

The orders of the court will, therefore, be: 1. The respondent is ordered to pay the applicant's reasonable costs of the proceedings, on a party/party basis, except that each party will pay its own respective costs of: (i) the application of 25 February 2000 to vacate the hearing dates 20-22 March 2000. (ii) the application of 23 May 2000 to vacate the hearing dates 12-14 July 2000. 2. The respondent is ordered to pay the applicant's costs of and incidental to the Notices of Motion of 24 October 2000 and 2 November 2000 regarding costs. 3. Order 1 of the court's orders of 9 October 2000 is, by consent, and in accordance with Order 4 thereof, now discharged . 4. The costs payable under Orders 1 and 2 hereof are to be paid within six months of their agreement, or assessment according to law. 5. Exhibit R1 may be returned to Mr Phantastes.

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