Misra v Campbelltown City Council No. 2

SOLICITORS Marsden Law Group

JUDGMENT: IN THE LAND AND MATTER No. 10364 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 08/05/02

Misra, P Applicant v Campbelltown City Council Respondent JUDGMENT No.2 [Costs]

1. On 13 December 2001 the Court dismissed an appeal challenging the validity of an order ("the order") issued by Campbelltown City Council ("the council") pursuant to s 121B of the Environmental Planning & Assessment Act 1979 ("the EP&A Act") restraining the respondent from using a residential building for the purpose of a temple. The council now seeks an order for its costs of these proceedings.
2. In support of its application the council relies upon the discretionary powers of the Court to award costs contained in s 69(2) of the Land and Environment Court Act 1979 ("the LEC Act") which relevantly provides:-

69 (2) Subject to the rules and subject to any other Act:

(a) costs are in the discretion of the Court, (b) the Court may determine by whom and to what extent costs are to be paid, … 3. The applicant also cites paragraph 10 of the Court's Practice Direction 1993 ("the Practice Direction") which provides:- 10. The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional. … 4. The council submits that the Practice Direction should not apply in the present circumstances for two reasons. Firstly, it relies upon the decision of the New South Wales Court of Appeal in Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376 (CA) which held that the direction could not inhibit the discretion of the Court conferred by s 69(2) of the LEC Act. Secondly, the council submits that the words "planning and building appeals" referred to in par 10 of the Practice Direction relate to those applications before the Court in which the merits of a building or planning matter are raised for determination. It submits that an order made pursuant to s 121B of the EP&A Act is directed to the enforcement of a planning law, in accordance with the provisions of Pt 6 of the EP&A Act entitled "Implementation and enforcement", and that an appeal from such order is not a planning or building appeal to which the Practice Direction applies. Council submits that it could have elected to institute Class 4 proceedings to restrain a breach of the EP&A Act. If it had done so the usual rule would follow that a successful party is entitled to its costs. It claims that it should not be deprived of costs simply because it followed the procedure contained in Pt 6 Div 2A of the EP&A Act. 5. The applicant (the respondent to the application for costs) submits that the issue before the Court was a "planning or building appeal" within the meaning of par 10 of the Practice Direction and that in the absence of "exceptional circumstances" no order for costs should be made. It also submits that it was entitled to clarify certain factual matters. Operation of the Practice Direction 6. Maurici involved a Class 3 application and therefore par 10A of the Practice Direction and not par 10 was applicable. Having regard to this distinction Pearlman J has held on two occasions since Maurici that the validity of par 10 is still an open question: see CSR Ltd v Fairfield City Council and Anor (2001) 117 LGERA 77 and Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors (2001) 116 LGERA 287. In both decisions the Chief Judge also found that par 10 is declaratory of the practice of the Court. Her Honour therefore determined that extraordinary circumstances were still required to warrant an order for costs in planning and building appeals. 7. The Chief Judge's decisions clarify the practice of the Court following Maurici and such practice has been continued. McEwen A J in Care v Canterbury City Council (2001) 115 LGERA 252 at 256 said:- "The effect of that decision [Maurici] is to rule that the Practice Direction which has been adopted and implemented by this Court for some 15 or 16 years, is invalid and is not to be given weight or paid regard to. Nonetheless, as I said earlier the principles adopted by the Practice Direction appear to me still to be relevant, that is the Court in the exercise of its discretion needs to be satisfied in matters of a planning and building nature that the circumstances are exceptional to warrant the award of costs for the reason identified by Talbot J [James Mansfield v Wyong Shire Council [2000] NSWLEC 260]". 8. The origin of this practice was stated by Pearlman J in Berk v Woollahra Municipal Council [No2] 78 LGERA 180:- "It was brought into force to formulate a long-standing policy of the Court, based on a philosophy of encouraging parties to seek review rather than discouraging them by burdening them with the risk of an award of costs against them. I see no reason, in principle or authority, to depart from the practice." 9. Although the Practice Direction cannot operate to fetter the discretion of the Court granted by s 69(2) of the LEC Act, it is reflective of the Court's practice, for the reasons described by Lloyd J in Prince v North Sydney Council 115 LGERA 65 where His Honour said:- "This is because it was the practice of this Court, long before the Practice Direction came into existence in its original form in about 1987, to make no order for costs in planning or building appeals unless the circumstances were exceptional: see McDonald Industries Ltd v Sydney City Council (1980) 43 LGRA 428 at 445". 10. In Oosthuizen v Sutherland Shire Council [2001] NSWLEC 137 at par 18 the Court summarised the current approach to the exercise of its power to award of costs in planning and building appeals as follows:- "In summary, the power to award costs is absolute and unfettered and subject only to such power being exercised judicially (see Oshlack v Richmond River Council (1998) 193 CLR 72). The practice of this Court is that costs do not ordinarily follow the event in planning and building appeals unless there are 'exceptional circumstances' to warrant an order for costs."

Costs in Enforcement Appeals in Class 1 Proceedings 11. The question for determination is whether enforcement proceedings comprise a "planning or building appeal". 12. The procedures created by Pt 6 Div 2A of the EP&A Act are intended to provide an efficient method of securing compliance with planning requirements. A person seeking to challenge the order under s 121B of the EP&A Act may do so in Class 1 of the Courts jurisdiction as has been done in the present proceedings. In Gardiner and Anor v Hornsby Shire Council [2000] NSWLEC 37 the Chief Judge considered an appeal from an order issued by a council to restrain a breach of a planning law. Her Honour determined that such proceedings did not constitute a planning or building appeal 13. Properly construed these proceedings constituted an appeal against an order enforcing the zoning provisions of Campbelltown Local Environmental Plan 129 and were not directly related to a building or planning matter. Accordingly, the Court determines that the appeal did not constitute a "building or planning appeal" and therefore, exceptional circumstances are not required to be shown before an order for costs is made. Exercise of Discretion 14. In the exercise of the Court's discretion pursuant to s 69(2) of the LEC Act, the Court observes that the order was issued only after council had obtained evidence that the subject building was being used for the purposes of a temple and not that of a residence for which consent had been given. Prior to granting of consent the council had enquired whether the respondents intended to use the proposed building as a temple. Council was assured that the building would be used solely as a residence not as a temple but in the judgment delivered on 13 December 2001 records that this was not correct. 15. The applicant points to various facts which it claims justify its challenge to the order. One such fact is letters were sent from the Governor General, the Premier of New South Wales and the Prime Minister in support of the temple. However, there is no evidence to show that any of these persons were informed that the temple was a prohibited use. Conclusion 16. The applicant used the building in a manner which it knew to be prohibited and the council was misled as to the true intent of the respondent. In these circumstances the council was justified in bringing the enforcement proceedings to s 121B of the EP&A Act and in defending the appeal to this Court. The council is entitled to be compensated for its costs. Such order is not punitive, but purely compensatory (see Oshlack v Richmond River Council (1998) 193 CLR 72 at 89). Orders 17. The Court orders that the applicant pay the respondent's costs of these proceedings.

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