REGISTRAR: By summons filed on 15 March 2019, the Applicant commenced these proceedings seeking a declaration that the development control order (the Order) issued by the Respondent to the Applicant on 19 December 2018 is void and of no effect. The Applicant also sought her costs of these proceedings.
Following the revocation of the Order, the substantive proceedings have been discontinued and the issue of costs is the only issue that is to be determined. It is the Applicant's position that the Respondent should be ordered to pay the Applicant's costs of the proceedings, as agreed or assessed. This is opposed by the Respondent.
[2]
Background
The land the subject of the Order was Lot 10 in Deposited Plan 20804 at 12 Merilbah Road, Bowral NSW (the Land). The Land is zoned R5 Large Lot Residential under the Wingecarribee Local Environmental Plan 2010 (WLEP). The Applicant is the registered proprietor.
In November 2015, the Applicant lodged a development application with the Respondent for additions to an existing dwelling, which was accompanied by plans. Those plans contained a notation in the following terms:
"Replace existing fence with new fence to comply with the requirements of Bowral DCP 2015"
The Bowral Development Control Plan 2015 provides that fence heights will match the heights generally in use in the immediate vicinity, to a maximum of 1200mm in front of the front building line and 1800mm behind the front building. Furthermore, fences are to be a form which provides an open appearance over 50% of its surface.
On 9 March 2016, the Respondent granted development consent No. DA15/11664 (the Consent) for additions to dwelling - in accordance with the plans (the Development).
On 8 April 2016, the Respondent issued Construction Certificate No 15/11664.01 for the Development the subject of the Consent.
In accordance with the Consent, the Applicant carried out the Development excluding any works related to the replacement of the existing fence.
As at 19 December 2018 and continuing to the date of the hearing of this Notice of Motion, the Applicant had not commenced any works related to the replacement of the existing fence and the existing fence remains. The Court understands that this is due to ongoing discussions between the Applicant and her neighbour about the type of fence to be installed.
On 20 June 2018, the Respondent issued a 'Notice of Proposed Order' under s 9.34 of the Environmental Planning and Assessment Act 1979 (EPA Act) (Notice of Proposed Order).
The Notice of Proposed Order required the Applicant to "install a fence in accordance with Stamped plans 'Bloor Plans' Dated 24 December 2015 and the requirements of Bowral DCP 2015".
The Respondent required compliance with the Notice of Proposed Order within 28 days of its date. It also invited the Applicant to make representations to the Respondent by 11 July 2018.
On 19 December 2018, the Respondent issued the Applicant with the Order and required compliance by 5pm on 27 January 2019. The Order required the Applicant to install a solid fence consisting of either 'timber lap and cap' or 'hardwood timber' on the boundary alignment of the eastern boundary of the Land and 10 Merilbah Road, Bowral.
The solicitor for the Applicant wrote to the Respondent on 10 January 2019 making submissions on the terms of the Order, its validity and seeking its withdrawal. That letter was sent on a without prejudice basis save as to costs and foreshadowed an application being made to this Court. No reply was ever received to that letter.
On 15 February 2019, a Court Attendance Notice (CAN) was issued to the Applicant for the alleged offence of failing to comply with the Order. That CAN required the Applicant to attend Moss Vale Local Court on 19 March 2019 in relation to the alleged offence.
On 22 February 2019, the solicitor for the Applicant again wrote to the Respondent seeking the withdrawal of the Order and the CAN. That letter also foreshadowed the Applicant would be filing an application to this Court and seek her costs.
On 22 February 2019, the Respondent replied to this letter confirming it would not withdraw the CAN and setting out its belief that the Court had no jurisdiction to hear an appeal concerning the Order as it was more than 28 days from the date the Order was issued to the Applicant.
The Applicant commenced these proceedings on 15 March 2019 seeking a declaration that the Order is void and of no effect. The Applicant identified the following grounds:
1. The Order was ultra vires;
2. The Order was issued for an improper purpose; and
3. The Applicant was denied procedural fairness.
On 17 April 2019, the Respondent revoked the Order before the first directions hearing (which was listed on 26 April 2019).
The Applicant discontinued the substantive proceedings on 7 May 2019.
[3]
Legal principles
Parts 3-9 of the Civil Procedure Act 2005 (CPA) apply to proceedings in Class 4 of the Land and Environment Court of NSW. Section 98 of the CPA falls within Part 7 of the CPA and provides amongst other things that subject to any rules of the Court, costs are in the discretion of the Court (s 98(1)(a)).
Part 42 of the Uniform Civil Procedure Rules 2005 (UCPR) applies to proceedings in Class 4 of the Court (UCPR r 1.5). Rule 42.19(2) of the UCPR provides:
Unless the court orders otherwise or the notice referred to in rule 12.1(2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued.
The effect of the above provision is that an Applicant who discontinues must pay the costs of the Respondent, unless that Respondent forgoes the entitlement, or the Court orders otherwise. The Court retains discretion with respect to costs despite commencing with a predisposition that unless there is some sound positive ground or good reason for departing from the ordinary course, the discontinuing party should pay the costs of the proceedings.
In Ibrahim v PERI Australia Pty Ltd [2013] NSWCA 328 (Ibrahim v PERI) at [17]-[18] Beazley P (as she was then), with whom Leeming JA concurred, considered the principles that applied in circumstances where a Court is requested to make a costs order when proceedings have not been heard to termination, with regard to the relevant case law, to be as follows:
"whether a party acted reasonably in commencing the proceedings; whether a party had been successful in obtaining interlocutory relief; whether the party sued had acted reasonably; whether the responding party has acted reasonably in defending the proceedings; whether the proceedings terminated after interlocutory relief had been granted; and whether the primary judge was satisfied that the party seeking to terminate the proceedings prior to a full hearing had almost a certain chance of success.
An applicant for costs where proceedings have not been heard to fruition need not prove each or every one of these matters, but they are the factors that the courts have considered relevant to a determination as to whether to order costs. "
In Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622 (Ex Parte Lai Qin), McHugh J held:
"When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order."
This was relied on by Sheahan J in Mosman Municipal Council v Harvey and Fitzgerald [2012] NSWLEC 83, where at 4 his Honour said:
"In order to determine the question of costs, there is clear authority (Lai Qin) that the court cannot conduct a hypothetical trial of the substantive questions raised in the proceedings."
His Honour then continued, at 5:
"There seems to be no controversy among counsel for the parties that Lai Qin remains good authority on such matters, despite the intervention since 1997 of the Uniform Civil Regime."
In Walker v Siasat [2014] NSWLEC 86 (Walker), Pain J accepted a submission (at [25]) that:
"Where proceedings are rendered moot by supervening events, the appropriate exercise of the costs discretion is to let losses lie where they fall."
In Kiama Council v Grant (2006) 143 LGERA 441 (Kiama v Grant), at [80], Preston CJ held:
"[80] The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:
(a) where one party effectively surrenders to the other party by:
(i) discontinuing without the consent of the other party; or
(ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;
the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and
(b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless:
(i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or
(ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action."
[4]
Submissions
Whilst the Respondent agrees that the legislation referred to by the Applicant applies, the Respondent submits that the Applicant does not deal with the actual legal principles that apply to this particular costs application.
It was put to me by the Respondent that there is no basis for a costs order and it relied on the line of authority from Ex Parte Lai Qin which I have extracted above.
I disagree with the submissions of the Respondent that the Applicant has not dealt with the relevant legal principles. My view is that the revocation of the Order was a supervening event which has left the only issue in dispute between the parties being costs, placing this cost dispute squarely within the second test set out in Preston's CJ decision in Kiama v Grant and the items set out in paragraph 17 of Ibrahim v PERI.
The Order was ultimately revoked before the first return date. It is not within the delegation of the Registrar to make any findings on the application that was before the Court before the proceedings were discontinued and this was made plain to the parties during the hearing of this cost argument. As such, it is not open to me to make a finding about the Applicant's chances or certainty of success if the substantive proceedings proceeded to a full hearing.
Accordingly, I turn to the reasonableness of the conduct of the parties and whether the Applicant should obtain an order for her costs.
It is the uncontested evidence of the Applicant that the Respondent was on notice that she intended to file an application in this Court disputing the validity of the Order. The Applicant also attests that the validity of the Order was raised by the Applicant with the Respondent on more than one occasion before these proceedings were commenced.
On 22 February 2019, the Respondent wrote to the Applicant informing her that it did not believe that there were grounds for appeal of the Order and declining to withdraw the CAN. The Respondent's view in relation to the Order was not correct and it was unreasonable. It is my view that the Applicant was in a position where she had little option but to commence these proceedings.
The evidence of the Respondent is that following the commencement of these proceedings several factors were considered and weighed up in deciding whether or not Council would revoke the Order. One of those factors was the quantum of anticipated expenditure in defending these proceedings balanced against the alleged offending. There is no evidence about what other factors were considered.
It is my view that the consideration that the Respondent says it undertook after the commencement of proceedings should have been undertaken when the Applicant wrote to it informing Council that she intended to make an application to the Court contesting the validity of the Order.
I find that the Applicant has clearly been put to unnecessary costs and that in this case, it is appropriate for me to exercise my discretion and award the Applicant her costs.
[5]
Orders
Accordingly, the Court orders that:
1. The Respondent is to pay the Applicant's costs of the proceedings, as agreed or assessed.
2. The Respondent is to pay the Applicant's costs of this Motion, as agreed or assessed.
[6]
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Decision last updated: 01 November 2019