Hornsby Shire Council v Trives

Proceedings 14/40259 Storey & Gough Lawyers (Applicant) N/A (First Respondent) Wilshire Webb Staunton Beattie Lawyers (Second and Third Respondent)

Proceedings 14/40277 Storey & Gough Lawyers (Applicant) N/A (First Respondent) N/A (Second Respondent) (Third Respondent) File Number(s): 14/40215 14/40259 14/40277

EX TEMPORE Judgment

1. In each of these proceedings, Hornsby Shire Council (the Council), has sought judicial review of the decisions by Simon Trives, an accredited certifier, to issue complying development certificates for a new structure to be erected on each of three residential properties. Those properties are owned by the respective second and third respondents joined in each proceeding.
2. As will soon become apparent, the challenge to the validity of each of the certificates issued by Mr Trives has been successful. The purpose of the present hearing is to determine the orders that should be made for final disposition of each proceeding, including an order for costs.
3. For its part, the Council seeks an order in each proceeding declaring that the relevant complying development certificate is invalid. It also seeks an order that Mr Trives pay its costs of the proceedings. The second and third respondents in two of the proceeding also seek an order that their costs be paid by Mr Trives. Mandatory orders are sought by the Council for demolition of works constructed pursuant to the complying development certificates issued by Mr Trives in two of the proceedings.
4. While the Council, together with the second and third respondents in each of proceedings 14/40215 and 14/40259 have been legally represented before me today, there has been no appearance by Mr Trives. He was legally represented at the time at which this hearing was fixed in December last but his solicitors have since filed a notice of ceasing to act in accordance with r 7.29 of the Uniform Civil Procedure Rules 2005 (the UCPR). There is evidence before me of recent correspondence between solicitors acting for the second and third respondents in these proceedings and solicitors acting for the insurer of Mr Trives in which the latter solicitors were advised of today's hearing. However, no one has appeared on behalf of Mr Trives today.
5. These proceedings have a history in this Court that can briefly be summarised. On 21 August 2014 an order was made for the separate determination of a question as to whether each of the impugned complying development certificates issued by Mr Trives was valid. On 20 October 2014, I determined that question in the negative (Hornsby Shire Council v Trives [2014] NSWLEC 171) (Trives No 1). Mr Trives appealed to the Court of Appeal from that decision on the sole ground that the determination of the question was not one of objective jurisdictional fact, notwithstanding that in the argument before me his then legal representative accepted that the question was to be so determined.
6. The Court of Appeal upheld the appeal on the sole ground argued and remitted the matter for determination by this Court (Trives v Hornsby Shire Council [2015] NSWCA 158; 89 NSWLR 268) (Trives No 2). On remitter to this Court, Biscoe J determined that each of the complying development certificates was invalid (Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190) (Trives No 3).
7. Each of those three decisions was confined to a determination of the separate question as to validity. In none of the hearings directed to that question did the second and third respondents take any active role. They were content to await the decision on that question, accepting that such decision would, subject to any discretionary considerations, determine the final outcome in each proceeding.
8. By reason of difference in the orders proposed among the three proceedings, it is appropriate to identify separately those proceedings by number, the second and third respondents who are the respective landowners, the address of each property and the date of each complying development certificate: Proceeding Number Landowners- second and third respondents Address Date of CDC 14/40215 Lachlan Bardo and Jing Yan 14 Railway Parade, Hornsby 22 January 2014 14/40259 Charles Huynh and Cassie Lin 231 Midson Road, Epping 29 January 2014 14/40277 Kevin Sum and Yun Yu Yim 46 Pennant Parade, Carlingford 5 February 2014

Declaratory relief

1. The Council seeks a declaration in each proceeding that the respective complying development certificates were invalid. None of the respondents oppose the making of such an order.
2. It seems to me appropriate that a declaratory order should be made. Such is the nature of a complying development certificate that its continued operation is not personal to the owner for the time being of property but, while ever it subsists as authority to carry out development, it attaches to the land to which it relates. The question of validity was vigorously argued by Mr Trives and the order should therefore reflect the determination that the Court has made. As Biscoe J observed in Cutcliffe v Lithgow City Council [2006] NSWLEC 463; 147 LGERA 330 at [20]: " … in cases involving development consents, generally it would be unjust to an applicant to deny declaratory relief merely because the respondents elect not to oppose it, regardless of the merit of the applicant's case."

Remedial orders

1. In proceedings 14/40277 relating to the property at Carlingford owned by Kevin Sum and Yun Yu Yim, no structure has been erected following the issue of the complying development certificate on 5 February 2014. Those are proceedings in which the second and third respondents have only once appeared in person when they handed to the Court a document stating that they submitted to any order the Court may make, save as to costs. They have never been legally represented and have not otherwise participated in the proceedings. Apart from the declaration that the Council seeks, the only other order sought in these proceedings is that Mr Trives pay the Council's costs. That is a matter to which I will turn in due course.
2. In proceedings 14/40215 relating to the property at Railway Parade, Hornsby owned by Lachlan Bardo and Ying Yan, the Council seeks an order that the structures erected pursuant to the complying development certificate issued on 22 January 2014 be demolished. That structure comprises a partially constructed building containing two dwellings and is more fully described at [13]-[14] of Trives No 1.
3. The respondents Bardo and Yan indicate, through their counsel, that they neither oppose nor consent to the making of a demolition order. However, in substance they seek a suspension or deferment of the operation of the order for a period of time that would afford the opportunity to seek consent under Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) for a structure that may not necessitate complete demolition of the existing building. By so doing, it is submitted, they will only incur the cost of one building contract to complete any necessary demolition work and to integrate those works with such part of the work already undertaken as receives an appropriate consent.
4. Having determined that the complying development certificate for the building on the Hornsby land is invalid, it seems to me to be appropriate that an order for demolition be made. Particularly is this so having regard to the determination made by Biscoe J at [89] and [95] of his Honour's judgment in Trives No 3 that the partially erected building is prohibited development. Such an order gives effect to the intent of the EPA Act that "the orderly development and use of the environment" should be controlled by adherence to the provisions of the Act and planning instruments made under it (Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339G-340B).
5. Having so stated, I accept that it would be appropriate to extend the period for compliance with the order, sufficient to afford a reasonable opportunity to these respondents to obtain consent from the Council to retain such part of the building, either of itself, or in conjunction with some other structure, as can lawfully be erected and used conformably with the provisions of the Act and applicable environmental planning instruments. The Council accepts that an extended time for compliance is appropriate, the period of extension being agreed on by the second and third respondents in those proceedings.
6. An order is also sought in proceedings 14/40259 for demolition of the partially constructed building on the property at Midson Road, Epping. While not opposing an order for demolition, the second and third respondents in those proceedings have sought an extended time to comply with that requirement in anticipation that they will seek consent for use of some part of the work already undertaken. The Council has agreed to an extended time for compliance being a time that the second and third respondents accept as appropriate.

Costs

1. The costs that the Council seeks from Mr Trives fall into two categories, namely, those costs attributable to the determination of the separate question and the costs of the proceedings generally. As the bulk of the work and Court time involved in the litigation has been directed to the separate question of validity, costs otherwise incurred in the proceedings would, I anticipate, be considerably less than those applicable to the separate question determination.
2. As a consequence of my determination in Trives No 1 that the complying development certificates were invalid, I ordered Mr Trives to pay the costs "of and in connection with the determination of the separate question" (at [34]). That order was set aside by the Court of Appeal in Trives No 2, with the determination made at [59] of the judgment that those costs "should depend on the final outcome of the Council's application, which is to be remitted". The determination by Biscoe J in Trives No 3 that the complying development certificates were invalid, resulted in his Honour ordering that Mr Trives "pay the applicant's costs of the separate question following remitter by the Court of Appeal" ([98]). Clearly, his Honour did not determine the consequence for costs of the first hearing before me.
3. As the Council has been successful in this Court in obtaining orders that it sought by instituting the proceedings, the usual course is that costs should follow that event (r 42.1 of the UCPR). No disentitling conduct on the part of the Council has been identified such that it should be denied the order that would otherwise follow from its success. In those circumstances, the proper exercise of discretion has the consequence that Mr Trives should be ordered to pay the Council's costs of the proceedings, including the costs of my determination of the separate question in Trives No 1. So to conclude is consistent with the determination of the Court of Appeal in Trives No 2, at [59] being the passage to which I have earlier referred at [18].
4. The second and third respondents in proceedings 14/40215 and 14/40259 also seek an order that Mr Trives pay their costs. Early in the proceedings the second and third respondents in proceedings 14/40259 initially submitted to orders of the Court, other than as to demolition and costs They agreed to the terms in which the separate question as to validity was framed and thereafter took no part in the three hearings directed to that question. Following the decision of the Court of Appeal, but before the hearing that resulted in the decision of Biscoe J in Trives No 3, the second and third respondents in 14/40215 filed a response to an amended summons, submitting to any order of the Court determining the validity of the complying development certificates and otherwise stating that the Court would not, in exercise of its discretion, order demolition.
5. As a consequence, the second and third respondents in each of the two proceedings that I have just identified took no further part in the question argued before Biscoe J and following delivery of his Honour's judgment, stated in correspondence with the Council that they would submit to orders for injunctive relief, subject to being given some time to carry out demolition for the reasons earlier identified.
6. I accept the submission made on behalf of the second and third respondents that the costs incurred by them are minimal and that their actions in taking what might be described as a benign position in the proceedings, indicates that they have acted reasonably. The submission made by Mr Doyle, counsel for the second and third respondents in 14/40215 and by Mr Hudson in 14/40259 is that the position of their respective clients can be equated to that of a submitting respondent whose joinder has only been made necessary because of the unlawful action of another party. (Manns v Attorney General of NSW (No 2) [2010] NSWSC 325 at [16]-[17]; Hurstville City Council v Minister for Planning and Infrastructure (No 2) [2012] NSWLEC 196 at [41]-[42]). Whatever may have been their respective roles in submitting applications for complying development certificates to Mr Trives, they have not been responsible for the Council incurring costs of any significance in these proceedings. Understandably, they rely upon the circumstance that they proceeded with work on their respective properties, relying upon validity of the certificates issued by Mr Trives.
7. The second and third respondents were necessary parties to the proceedings. The orders sought by the Council directly impacted upon them as property owners and developers. In the circumstances I am prepared to accept their submissions that Mr Trives should pay their costs incurred in connection with these proceedings upon the somewhat limited basis for which they contend.
8. For all these reasons I make the following orders:
9. In proceedings 14/40215
10. (1) Declare that the Complying Development Certificate No 14/6423 issued by the first respondent on 22 January 2014 for development on the property known as 14 Railway Parade, Hornsby was issued in breach of the Environmental Planning and Assessment Act 1979 (NSW) and is thereby invalid and of no effect to authorise the development to which it purported to relate.
11. (2) Order that within 6 months from the date of this Order the second and third respondents demolish the structure erected on their property pursuant to the Complying Development Certificate identified in Order 1.
12. (3) Order that the first respondent pay the Council's costs of the proceedings including costs incurred in respect of the determination of the separate question on 20 October 2014.
13. (4) Order that the first respondent pay the costs of the second and third respondents as if on a submitting appearance basis.
14. (5) Reserve liberty to apply on seven (7) days' notice.
15. (6) Order that the exhibits be returned.
16. In proceedings 14/40259 1. Declare that the Complying Development Certificate 14/6434 issued by the first respondent on 29 January 2014 for development on the property known as 231 Midson Road, Epping was issued in breach of the Environmental Planning and Assessment Act 1979 (NSW) and is thereby invalid and of no effect to authorise the development to which it purported to relate. 2. Order that within 12 months from the date of this Order the second and third respondents demolish the structures (with the exception of base concrete slabs) erected at the rear of their property pursuant to the Complying Development Certificate identified in Order 1. 3. Order that the first respondent pay the Council's costs of the proceedings including costs incurred in respect of the determination of the separate question on 20 October 2014.
17. (4) Order that the first respondent pay the costs of the second and third respondents as if on a submitting appearance basis.
18. (5) Reserve liberty to apply on seven (7) days' notice.
19. (6) Order that the exhibits be returned.
20. In proceedings 14/40277 1. (1) Declare that Complying Development Certificate No 14/6449 issued by the first respondent on 5 February 2014 for development on the property known as 46 Pennant Parade, Carlingford was issued in breach of the Environmental Planning and Assessment Act 1979 (NSW) and is thereby invalid and of no effect to authorise the development to which it purported to relate. 2. (2) Order that the first respondent pay the Council's costs of the proceedings, including costs incurred in respect of the determination of the separate question on 20 October 2014. 3. (3) Order that the exhibits be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2016