HALL v DEVELOPMENT ASSESSMENT COMMISSION & ORS

The successful plaintiffs apply for an order that they recover their costs of and incidental to this application. The first defendant, the Development Assessment Commission ("the Commission"), had informed the court at an early stage in the proceedings that it would abide the order of the court. Thus, the protagonists to the application were the plaintiffs and the second defendant, City Apartments Pty Ltd ("City Apartments"), which is the person intending to develop the subject land.

Mr Crocker, who appears on this application for City Apartments, submits that while the plaintiffs are entitled to recover their costs, City Apartments should not be ordered to pay the whole of those costs. His contention essentially is founded on the fact that it was the Commission which determined that it would be the relevant development planning authority and it was the Commission which assigned the wrong category to the intended development.

As is implicit in the reasons for judgment, one can feel a deal of sympathy for City Apartments. The decision as to which was the relevant planning authority was made by the Commission and not by City Apartments. That decision has proved to be wrong. However, City Apartments has strongly contested this application.

The plaintiffs at an early stage invited City Apartments to apply to cancel the development approval pursuant to s.43 of the Development Act. City Apartments did not accede to that invitation. The plaintiffs instituted proceedings. It was then open to City Apartments to inform the court that it was willing to abide the order of the court. Nevertheless, it continued to defend the proceedings, filing affidavits in support of its position, and arguing the matter through counsel.

Although the Commission has erred, orders as to costs are not necessarily penalties for making wrong decisions. Instead they are to compensate parties for the cost of having to bring legal proceedings to correct the matter. Given that City Apartments decided to contest the application, and given that the Commission had informed the court at an early stage it would abide the order of the court, I believe that there is no alternative but that City Apartments alone is liable to pay the plaintiffs' taxed costs of this application.

The plaintiffs have applied to join the City of Burnside ("the Council") as a party to those proceedings. Mr Leadbeter, who appeared for the Council, informed the court that his client was willing to be made a party on terms provided that it was not liable for any costs, either on this application or on any appeal, if an appeal should be instituted. He informed me that the Council had made a resolution to that effect.

In my view, it is proper that the Council should be joined as a party. It is a necessary party because it is the planning authority which granted the development approval. Although the Council seeks to impose terms as to the basis upon which it should be joined as a party, the court cannot accede to those terms. The fact that Council seeks to impose terms which are not acceptable to the court does not mean that the Council can thereby escape being joined as a party. Thus, the City of Burnside will be joined as a party.

In relation to the question of costs, no application for costs is made against the Council. Should there be any appeal, then the question of costs will very much depend upon the attitude of the City of Burnside upon that appeal. It is likely that, if the City of Burnside does no more than state that it abides the order of the court, it will be unlikely to incur any liability as to costs. However, should it seek to support a particular party in the appeal, it might be at risk as to costs. These are matters which will depend upon the manner in which the Council decides to participate in the litigation.

I turn, therefore, to the orders to be made. There will be orders as follows:

1. An order in the nature of a declaration that the development application 180/393/00/DC lodged by the defendant City Apartments Pty Ltd with the City of Burnside is for a Category 3 development.

2. An order in the nature of a declaration that the relevant planning authority was the City of Burnside and not the Development Assessment Commission.

3. An order quashing the provisional development plan consent issued by the Development Assessment Commission to City Apartments Pty Ltd in respect of the development plan number 180/393/00/DC.

4. An order quashing the development approval issued by the City of Burnside to City Apartments Pty Ltd in respect of application 180/393/00/DC.

5. That the second defendant City Apartments Pty Ltd pay the plaintiffs' costs of and incidental to this application as taxed or agreed.