Mulwaree Shire Council v Cospak International Pty Limited

Matter No . . 40244 of 2001 Coram : Bignold J 7 November 2002

This is an application by the Council in class 4 proceedings which were commenced by the Council on 28 December 2001 claiming declaratory and injunctive relief in relation to a development consent that it had granted for the erection of a dwelling house on a rural property on 22 September 1999. A number of conditions were imposed upon that development consent, some of which were modified pursuant to modification applications made thereafter.

However, at the time the class 4 proceedings were commenced, it is not in dispute that condition 4 of the development consent relevantly required the developer owner of the property to create rights-of-way in respect of access arrangements to the dwelling located on the rural property. The declaration claimed was that the development had been carried out without complying with that particular condition and it is common ground that the dwelling house came into existence and has been occupied since the beginning of the year 2000. The injunctive relief claimed by the Council was for a mandatory order for compliance with condition 4.

The proceedings were commenced only following elaborate correspondence passing between the Council's Solicitor and the land owner/developer's Solicitor in which the Council's Solicitor gave the land owner's Solicitor every opportunity to bring about a state of compliance with condition 4 of the development consent. But it appears from that correspondence, that the land owner was content to rely upon what he described as the status quo, which meant in fact that he was obtaining actual access to the subject land via a public road which terminated some distance from the boundaries of that land at a point separated from it by other properties owned by the same land owner and those other properties intervening between the public road and the subject land were traversed by a track that obviously existed on those lands.

The owner's position in the matter is understandable but it is obviously a far cry from compliance with condition 4 of the development consent which, as I have said, insisted upon the creation of legal access via the creation of rights-of-way and the like, or some other arrangement which would deliver to the subject land not only legal access, but physical and actual access.

The proceedings in class 4 did not proceed much beyond basic pleadings, that is the filing of Points of Claim, Points of Defence and some further interlocutory matters, because on 13 May 2002, class 1 proceedings were brought by the land owner appealing against the Council's decision to refuse a modification application which had been made by the land owner to the Council seeking the deletion of condition 4 altogether. That application was made by the land owner on 27 February 2002 and was refused by the Council apparently on 24 April 2002.

The proceedings (No (1)0116 of 2002) by way of appeal commenced on 13 May 2002 and from that time on the Court's file notations in the class 4 proceedings indicate that the class 4 proceeding was to simply travel as a passenger, as it were, with the class 1 proceedings which were fixed for hearing in September 2002. Obviously the intention was to await the outcome of the class 1 proceedings, the parties evidently mutually adopting that approach, which is reflected in the Court's practice in relation to the situation where there are concurrent class 1 and class 4 proceedings pending in the Court. The parties and the Registrar obviously proceeded upon the basis that in the event of the modification application appeal being upheld, then the question of the prosecution of the class 4 matter would either terminate or be significantly modified.

In the event, the class 1 matter was heard by me on 25 September 2002. On that occasion I expressed a number of conclusions about the onerousness of the condition as it stood, but nonetheless came to the conclusion that some appropriate condition transcending merely the continuance of the status quo was called for. That something extra has now been provided in the agreed condition that the parties have handed up earlier today in the class 1 proceedings when I made orders by consent, conformably to my decision on 25 September 2002, bringing about a different condition 4 which acknowledges in par A the present position and to that extent acknowledges the status quo and the satisfactoriness of the status quo whilever the three lots of land, including the subject land, are held in the one ownership. But paras B and C of condition 4 go on to impose requirements in the event of the factual status quo changing, and that is the gist of the new condition 4.

In support of its application for costs in the class 4 proceedings, the Council relies upon the fact that the development consent was acted upon by the land owner soon after it was granted. The dwelling house, coming into existence early in the year 2000, has been occupied as such since that date and, during its existence and enjoyment of it, the relevant condition that the Council had been insisting upon in relation to access had not been complied with. That position obtained for the next year or so and then, finally, the Council gave adequate notice that it was insisting upon compliance with the obligation created by condition 4 and ultimately commenced the class 4 proceedings at the end of 2001, as I have mentioned,.

In those circumstances, the Council's claim to costs is that it was acting reasonably in commencing the proceedings to insist upon compliance with the condition of the development consent which had been long outstanding and that in those circumstances, the Council having reasonably commenced the proceedings, it ought not be out of pocket as a result of the final outcome in those proceedings, which is that they be dismissed because the Council, in the light of the outcome in the class 1 proceedings, now acknowledges that there is no utility in seeking any relief as originally claimed. The Council may have sought to extract some relief in relation to the condition now imposed, but it obviously has adopted the reasonable course of relying upon the land owner to abide by the new condition 4 as it has been imposed today and hence is content to not prosecute the class 4 proceedings.

Mr Zacharatos, on behalf of the land owner, submits that there should be no order for costs against the Respondent because the outcome of the class 1 proceedings indicates that the position that it was advancing by way of justification for non-compliance with condition 4 was, ultimately at least, adopted in part by condition 4 imposed today, at least recognising the viability and validity of the status quo operating while the property remained in the one ownership, and that the Respondent was acting responsibly in defending the proceedings on the basis of the stand that it had articulated to the Council's Solicitor in the correspondence I have earlier referred to.

In my opinion, the costs consequence of the present litigation, recognising the relationship between the originally filed class 4 proceeding and the later filed class 1 proceedings satisfies me, both in terms of the timing and relationship between the two sets of proceedings and the outcome in the two sets of proceedings, that the Council should not be disadvantaged by having to bear its costs in the class 4 proceedings. As I have indicated, those costs have not significantly been incurred at least since 14 May 2002 when the parties adopted the sensible approach of awaiting the outcome of the class 1 proceedings.

In the circumstances, I am of the opinion that it is just and reasonable that the Council be compensated for its action in bringing the class 4 proceedings, that it not be put to the disadvantage of having to bear its costs in those proceedings because, on the face of it, its conduct both pre-litigation and during the litigation was eminently reasonable. The outcome of the class 1 proceedings, though resulting in success for the land owner, also delivers a significant measure of success to the Council.

In the circumstances, I order the Respondent to the class 4 proceedings to pay the Council's costs of those proceedings up to 14 May 2002 when, as I have said, from that point on the parties mutually agreed to await the outcome of the class 1 proceedings.

For all the foregoing reasons, I order the Respondent to pay the Applicant's costs up to and including 14 May 2002 in the sum agreed or, failing agreement, as assessed.

The exhibit may stay on the court papers. COUNSEL ADDRESSED ON COSTS

In addition to the order just pronounced, as a result of today's hearing being required because the Respondent opposed the costs claimed by the Council and put a case against it and that case having failed, it is appropriate that I also order the Respondent to pay the Council's costs of today's proceeding.

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