Marshall Rural Pty Limited v Hawkesbury City Council

Judgment

1. HIS HONOUR: In each of these proceedings, the original applicant in these Class 4 proceedings, Marshall Rural Pty Limited (Marshall Rural), seeks an order for costs, as do the substantive respondents, which I will describe as the "Basscave interests". There are two sets of proceedings and they are also proceedings that involve Hawkesbury Shire Council (the Council), with respect to whose participation, it is conceded (in what has been described as the second proceedings - being proceedings in which the Council played an active part until 16 October 2015 when the Council lodged a submitting appearance), that the Council should pay Marshall Rural's costs on an ordinary basis up to 16 October 2015. There is no basis upon which I could or should cavil with that finding.
2. In the substantive dispute between Marshall Rural and the Basscave interests, I gave a lengthy decision on 16 December 2015 in which I upheld the complaint by Marshall Rural against the Basscave interests on two grounds, one of which grounds related to the inadequacy of the owner's consent to the development applications that had been approved on 30 June 2015 by Hawkesbury Council. That was a basis that had arisen during the course of the proceedings and following questions asked by me of a witness about owner's consent. The matter arose subsequently by a permitted amendment to the pleadings on behalf of Marshall Rural, a subsequent additional hearing and subsequent written submissions being made.
3. The single substantive matter in the proceedings that had been alive from the beginning was the question of whether the terms of cl 2.8(3)(b) of the Hawkesbury Local Environmental Plan 2012 had been complied with, it being a "no adverse impact" test contained in the instrument and the matter being determined by the Council on the evidence submitted by the Basscave interests was on a "no unreasonable or unacceptable adverse impact" test, not being that which was contained in the instrument.
4. On that second test, the Council had had the advantage not only of submissions by the solicitors for Basscave and the (then) solicitor for Marshall Rural drawing their attention to the nature of the test to be applied but also a written advice from Mr Leggat of senior counsel and Mr To of counsel, such advice behind Annexure H to the affidavit of Mr Doyle dated 22 August 2016. There, at [15] to [17], the question of caution with respect to that provision was dealt with, in my view, correctly in the 22 June advice from Mr Leggat and Mr To.