Halstead & Anor v Wingecarribee Shire Council

KEY ISSUES: Costs :- development application - deemed refusal - appeal - development consent granted - whether Council conduct unreasonable - no order as to costs

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Land & Environment Court Rules 1996

CASES CITED: Grant v Kiama Municipal Council [2006] NSWLEC 70; Halstead C and Fong, M v Wingecarribee Shire Council [2007] NSWLEC 167

APPLICANT Mr A Dawson SOLICITOR LEGAL REPRESENTATIVES: Bradfield Mills Solicitors RESPONDENT Mr D Wilson SOLICITOR N/A

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

WINGECARRIBEE SHIRE COUNCIL Respondent

JUDGMENT Jagot J: 1 This is a notice of motion for costs by an applicant in class 1 proceedings. The applicant relies on two affidavits. These set out the history of the making of the development application to the Council for the purpose of a single-storey four bedroom brick veneer dwelling house on land known as 42 Biggera Street, Braemar, as well as its progress and ultimate determination by the Court upholding the appeal and granting development consent to the development application on 28 March 2007 (Halstead C and Fong, M v Wingecarribee Shire Council [2007] NSWLEC 167).

2 Without traversing all of the matters in the two affidavits relied upon by the applicant, it is apparent that the development application was lodged on 14 September 2006. When the applicant had not received any satisfactory response from the Council with respect to the development application or other attempts made to communicate with the Council about the progress of the application, the applicant instructed its solicitors to file an appeal with this Court against the Council's deemed refusal of the development application. This was done on 21 December 2006, as contemplated by s 97 of the Environmental Planning and Assessment Act 1979.

3 In accordance with the usual procedures of the Court the class 1 appeal was listed for a call-over before the Registrar on 14 December 2007. However, there was no appearance by the respondent Council at that call-over and the proceedings had to be adjourned. At the next call-over on 21 February 2007 there was again no appearance on behalf of the Council and the Court made various directions for the Council to file and serve a statement of basic facts and a statement of issues, the applicant to file and serve any town planning evidence and for the matter to be listed for an on-site hearing on 28 March 2007. In addition the Court ordered the Council to pay the applicant's costs of the two mentions on 14 and 21 February in the sum of $600 within twenty-one days. Both parties were granted liberty to restore on 24 hours' notice.

4 Pursuant to the directions made by the Registrar on that occasion the Council filed and served a statement of basic facts and a statement of issues on 28 February 2007. The applicant filed and served a statement of evidence from a town planner. Neither party exercised the liberty to restore. The proceedings were heard on site by a Commissioner on 28 March 2007 and, indeed, were also determined on that day.

5 The Commissioner identified the salient issue in the case based on the Council's statement of issues as "the location, visual prominence and appearance of the garage within the streetscape" (at [27]). The Commissioner determined that although the overall concern of the Council was whether the proposed garage would be visually dominant in the streetscape, heavy planting in the north-eastern sector of the land with indigenous species of trees and shrubs, being a condition to which the applicant was willing to submit, would effectively ensure that the design would be "satisfactory within the streetscape" (at [32]). The Commissioner therefore upheld the appeal. In so doing, the Commissioner noted that condition 31 (addressing the requirements for landscaping the north-eastern sector of the land to reduce the dominance of the garage in the streetscape) was drafted on site. It is apparent from the submissions put before me by both parties today that the applicant was willing to agree to this condition, but the Council's position was that the imposition of such a condition did not resolve the issues in the appeal. Hence, the Commissioner needed to determine the development application by the grant of consent.

6 The applicant submits that the circumstances of the matter considered as a whole are such as to warrant the making of a costs order in its favour, recognising that Pt 16 r 4(2) of the Land and Environment Court Rules provides that no order for the payment of costs will be made in proceedings to which the rule applies unless the Court considers that the making of a costs order is in the circumstances of the particular case fair and reasonable.

7 By reference to the considerations in Grant v Kiama Council [2006] NSWLEC 70, particularly at [15], the applicant submits that the circumstances show an unreasonable course of conduct on the Council's part, which effectively invited the litigation. In particular, the Council did not deal with the development application within the required timeframe - a fact which must also be considered in a context where the Council did not file and serve a notice of appearance, did not appear at the first two call-overs in the proceedings, and did not pay the costs as ordered by the Registrar (although from the affidavits I understand that the costs were in fact ultimately paid). Further, during the hearing the Council did not accept the Commissioner's suggestion for the landscaping condition, although the applicant did. The Council also did not provide any expert report, the only expert evidence being that of the applicant's expert. However, a Council officer, Mr Lee, attended the site and gave evidence without proper notice of that evidence having been given to the applicant. Finally, substantively, it should be apparent from the statement of issues, the circumstances and the judgment that the Council rigidly applied a provision of a development control plan which on its proper construction did not warrant any conclusion that the development breached such a provision and should in any event have been applied as a general guideline in accordance with the express provisions of that plan. The applicant says the Council unreasonably caused the litigation, particularly in circumstances where the only expert evidence was in support of the development being granted consent.

8 The respondent Council submits that there are no circumstances that warrant the making of an application for costs let alone the making of a costs order. With respect to the Council's failure to attend the first two call-overs the Registrar had already made a costs order which had been paid and there could not be any doubling-up on that account. With respect to the DCP the preamble referred to garages being located behind the front building line as a desirable circumstance to ensure that, amongst other things, those structures did not dominate streetscapes, whereas the specific design guideline referred to garages being set back behind the front façade of the dwelling. In this case the garage was behind the front building line but was not behind the front façade of the dwelling. According to the Council this necessitated a striking of a balance between the various provisions of the DCP. Ultimately the Commissioner struck that balance by imposing the requirement for landscaping as set out in [30] of the decision.

9 Further, Mr Lee, the Council officer who was on site, was in attendance as the instructing officer to Mr Wilson of counsel who appeared on behalf of the Council on a direct access brief. Mr Wilson noted that the Commissioner requested that he obtain instructions from Mr Lee so that Mr Lee's contribution to the resolution of the dispute was not inappropriate in the circumstances. Moreover it is apparent that there is no obligation on the part of any party to call expert evidence in a merit appeal. Commissioners have their own expertise and are expected to use that expertise consistent with the provisions of the legislation. The fact that the Commissioner was willing to grant consent to the development application on the basis of the heavy landscaping ultimately incorporated in condition 31 was an appropriate resolution of the dispute based upon an ordinary merits assessment. The fact that the Council had not paid the $600 costs on time in accordance with the Registrar's order could not itself be a reason to support the making of a costs order having regard to the wording of Pt 16 r 4(2).

10 Having considered the matters raised by the applicant as set out in its written submissions and also incorporating the matters referred to by Mr Dawson of counsel in oral submissions, I do not accept that the circumstances are such as to make it fair and reasonable for there to be any costs order against the Council.

11 First, from the information in the statement of issues and the judgment of Commissioner Watts, I do not think it is reasonable to characterise the Council's position in the proceedings or leading up to the proceedings as having been some form of rigid or mindless application of its DCP. It seems to me to be clear from the statement of issues and the Commissioner's judgment that the Council had a concern about the visual dominance of the garage within the streetscape by reason of the garage being located forward of the front façade of the dwelling. A design guideline in the DCP states, "Locate garages so as to be set back behind the front façade of the dwelling". It is true that the preamble refers to garages being "behind the front building line" which this development satisfied. I would understand the Commissioner's reasoning process as disclosed by the judgment as being one where the Commissioner ultimately resolved the issue of the visual prominence of the garage by requiring the heavy landscaping.

12 It is also true, as the Council submitted, that there is no obligation on any party to a merit appeal to call expert evidence. Many merit appeals are capable of resolution without expert evidence. The directions made by the Registrar did not contemplate the filing and service of any expert report on behalf of the Council but gave the applicant an opportunity to do so. The applicant took up that opportunity but that did not mean that the Council was subject to a similar obligation.

13 The matter was fixed for an on-site hearing in accordance with the Land and Environment Court Act 1979. The purpose of these types of hearings is to enable a relatively informal resolution of disputes where they are appropriate for that style of resolution. In such circumstances, attendance by a Council officer and assistance to the Court by that Council officer should not found a finding of any form of unreasonable conduct at the hearing.

14 The Council did fail to appear at two call-overs and only filed its appearance, its statement of issues and statement of basic facts after the Court made directions instead of in accordance with the Court's usual practice. However, the Registrar determined that it was fair and reasonable for the Council to be ordered to pay costs on account of those defaults and for the applicant to be compensated in that regard. That seems to me to have been entirely appropriate. The orders for costs were made. Despite the delay by the Council in payment I understand that payment has now been made. I agree with Mr Wilson that this cannot be a reason to found the making of a further costs order.

15 Similarly, the fact that the Council did not withdraw its opposition to the development application being granted consent in response to the Commissioner's suggested landscaping condition is not itself unreasonable. As Mr Wilson said the matter proceeded by way of an on-site hearing. The landscaping suggestion arose as part of the on-site hearing. The applicant accepted such a condition. The Council, I infer, maintained its opposition and the Commissioner resolved the dispute by his ex tempore reasons delivered as part of the on-site hearing.

16 In my view the history of this matter and the circumstances do not disclose anything that would make it fair and reasonable in the particular circumstances of this case for a costs order to be made. A development application was lodged, an appeal was made against a deemed refusal, during the procedural steps the Council was in default and was subjected to a costs order in respect of its procedural defaults. Thereafter the matter proceeded in the ordinary course and was resolved at the on-site hearing on its merits.

17 In these circumstances I do not consider that the making of a costs order would be fair and reasonable within the meaning of Pt 16 r 4(2). Accordingly it follows that no order for the payment of costs will be made in the proceedings. The notice of motion should be dismissed and I so order.

18 In all of these circumstances, and having regard to the correspondence, it seems to me that the appropriate conclusion is that there shall be no order for the payment of costs on the notice of motion because I am not satisfied that in the circumstances of the particular case it would be fair and reasonable to do so.

19 Accordingly the orders I will formally make are:

(1) The notice of motion filed 20 April 2007 is dismissed. (2) Each party shall pay its own costs of the notice of motion.

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