Notaras v Tsimourtos and Anor

Background

1. On 26 November 2020, Council issued development consent DA-231/2020 ('Consent') to the first respondent for "[a]lterations and additions to a single-storey dwelling including substantial demolition, internal reconfiguration and a first floor addition" to an existing dwelling on land identified as Lot 91 in Deposited Plan 4042 and known as 10 Rawson Avenue, Queens Park ('Site').
2. By summons filed 26 February 2021, the applicant commenced these judicial review proceedings challenging the validity of two decisions of Council relating to the granting of the Consent being: "a) To not require or undertake further notification of the DA after it had accepted the First Defendant's formal amendment to the DA (Re-notification Decision), purportedly pursuant to clause 2.6.1 of the Waverley Development Control Plan 2012 - Amendment No. 7 (WDCP Amendment 7); and b) To grant the Consent on 26 November 2020 (Consent Decision), purportedly pursuant to section 4.16(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act)."
3. In his summons, the applicant sought declaratory and consequential relief and identified six grounds of review, each with extensive particulars, being: Ground 1, "Failure to Notify"; Ground 2, "Failure to consider all submissions"; Ground 3, "Failure to properly assess the Height of Building development standard"; Ground 4, "Breach of the FSR development standard and failure to properly assess the Clause 4.6 request"; Ground 5, "Failure to assess the WDCP correctly"; and, Ground 6, "Works beyond the boundaries of the Land".
4. As will become clear later in this judgment, much turns upon Ground 6, which provides that "the grant of Consent by [Council] was contrary to its power under the [Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act')] as it included works to private property that [were] not part of the [Site] and for which owner's consent was not provided".
5. On 6 April 2021, the first respondent filed his response to summons and, on 4 May 2021, Council filed its response to summons opposing the relief sought by the applicant.
6. On 1 June 2021, the first respondent lodged a further development application DA-199/2021 with Council seeking "[a]lterations and additions to single-storey dwelling [at the Site] including substantial demolition, internal reconfiguration and a first floor addition". I interpolate that this conduct was responsive to these Class 4 proceedings commenced on 28 February 2021.
7. On 25 August 2021, the Waverley Local Planning Panel issued deferred commencement consent to development application DA-199/2021 which included a condition that the Consent (the subject of these proceedings) be surrendered, and, on 1 September 2021, the Consent was surrendered by the first respondent and the surrender was accepted by Council on 2 September 2021.

Further background

1. The development application received by Council on 27 July 2020 described the proposal as: "Alterations and additions to existing dwelling. Retention of existing Rawson Ave structure, façade and roof with demolition of rear. New 2 storey extension to rear with new landscaping to terrace and side garden."
2. The plans approved by the Consent and specifically adopted in Condition 1 as part of "Approved Plans and Documentation", included a plan entitled "Existing & Demolition Plans", drawing "A-DA-004", "Revision B", dated 18 October 2020. The plan identified the common boundary of the applicant and the first respondent's land, in a red-dashed and dotted line; depicted an existing wall bounding the southern side of the first respondent's courtyard within the applicant's land; and the demolition plan identified this part of the wall as to be demolished.
3. As further considered later in this judgment, the applicant notes that the development application did not include any owner's consent from the applicant for the lodgement of the development application and, necessarily, the demolition of part of the wall.
4. The plans approved by Condition 1 of the consent were subject to a qualification, "[e]xcept where amended by the following conditions of consent".
5. The Consent was subject to 38 numbered conditions, none of which specifically limited the extent of the development depicted on approved drawing "A-DA-004", "Revision B" however, after the 38 numbered conditions of the Consent, a further section entitled "E. Advisory Matters", noted: "The following advisory matters are provided as additional information to ensure compliance with the relevant legislation and requirements. You must also check other Commonwealth and NSW Acts and Regulations which may apply to the works or use approved in this application."
6. The advisory matters included eight paragraphs designated "AD1" to "AD8". AD8 was in the following terms: "AD8. WORK OUTSIDE PROPERTY BOUNDARY This consent does not authorise any work outside the property boundary."

Relevant principles

1. The principles that relate to the payment of costs consequent upon a discontinuance are not in dispute and may therefore be briefly summarised.
2. The Court's general costs discretion is found in s 98(1) of the Civil Procedure Act 2005 (NSW) which provides as follows: (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
3. The general rule is that costs follow the event, as set out in r 42.1 of the UCPR as follows: Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
4. Ordinarily, this power is exercised after a hearing on the merits and, as a general rule, the successful party is entitled to a costs order. However, when there has been no hearing on the merits, as in the present circumstance, the Court is necessarily deprived of the factor that usually determines whether or how it will make an order for costs.
5. Rule 42.19 of the UCPR governs the costs discretion in the case of discontinued proceedings. It relevantly provides: (1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1. (2) 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. …
6. Simply stated, an order for costs under r 42.19 of the UCPR is to be made unless there is a discretionary reason to order otherwise. This means there is ordinarily an onus on the discontinuing party to convince the Court that it should not be liable for the payment of the other party's costs of the proceedings.
7. However, this is not necessarily the case in circumstances of a supervening or extra-curial event which results in the removal of the subject matter of the dispute so that no issue remains except for that of costs. There has been extensive judicial consideration of the position in these circumstances.
8. In summary, the absence of a hearing on the merits of the proceedings will usually mean that the Court will make no order as to costs, subject to a qualification that even where parties have acted reasonably, costs may be awarded if the Court is satisfied that one party "was almost certain to have succeeded if the matter had been fully tried", adopting the well-known comments of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 ('Ex parte Lai Qin') at 624-625.
9. Further, the circumstances leading to the discontinuance and the conduct of the parties is relevant in the exercise of the Court's discretion: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [20]-[34]. The position may be different where a defendant simply capitulates: Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89 at [12].
10. In Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [80], Preston CJ of LEC made the following comments which I respectfully adopt: "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."
11. As the surrender of the Consent constitutes a supervening event in that the subject of the dispute, pleaded as being Council's conduct concerning the issuing of the Consent, has been removed, and the fact that the applicant and Council have resolved their dispute, the remaining issue in dispute is with respect to the applicant's claim for costs from the first respondent.
12. The applicant seeks that the Court "otherwise order" on the basis that the absence of owner's consent for certain demolition works proposed on the applicant's land, means that it was "almost certain" he would have succeeded if the matter had proceeded to hearing.

Evidence

1. The applicant read his two affidavits affirmed 24 February 2022 and 9 March 2022. The affidavit of 24 February 2022 annexed detailed background material, including the Consent and other material, which I will not presently summarise. The first respondent read the affidavit of his solicitor, Alice Adele Spizzo, affirmed 4 March 2022 and relied upon two exhibits, the first being, a letter of objection dated on or about 12 August 2021 prepared by the applicant objecting to the first respondent's proposed development; and the second, a letter from the first respondent's solicitor to the applicant's solicitor dated 5 October 2021 in relation to costs.

Submissions

1. The applicant's primary submission (based on Ex parte Lai Qin) is that the Court can be confident that the applicant was almost certain to have succeeded if the matter had been tried based upon the likely success of Ground 6 relating to the absence of owner's consent for certain demolition works which involved works proposed on the applicant's land.
2. The applicant points to the approved plans including the sheet entitled "Existing & Demolition Plans", drawing "A-DA-004", "Revision B" and Condition 1 of the Consent (as noted above at [12]) and notes that the development application did not include owner's consent from the applicant for the lodgement of the development application, nor for the demolition of part of the wall which is on the applicant's land; and submits that this absence of owner's consent, would have been determinative in the substantive hearing of the applicant's claim.
3. The applicant also submits that Condition 1 of the Consent notes that the Consent was given for development in accordance with nominated plans and subject to the qualification "[e]xcept where amended by the following conditions of consent", in circumstances where there were 38 numbered conditions, none of which limited the extent of the development depicted on the approved drawing "A-DA-004", "Revision B".
4. In anticipation of the first respondent's position, the applicant accepts that the Consent, in addition to the 38 numbered conditions, has a separate section styled "Advisory Matters" in which there is a chapeau stating: "The following advisory matters are provided as additional information to ensure compliance with the relevant legislation and requirements. You must also check other Commonwealth and NSW Acts and Regulations which may apply to the works or use approved in this application"; and that advisory matter AD8 provides: "This consent does not authorise any work outside the property boundary", however the applicant submits that AD8, by its very terms, was an "advisory" matter and not a "condition" of the Consent which had otherwise approved drawing "A-DA-004", "Revision B".
5. The applicant's secondary submission is that the absence of owner's consent renders the development application that was before Council incapable of approval at least because it proposed work on the applicant's land, which was not owned by the first respondent. The applicant also submits, again in anticipation of the first respondent's position, that nothing in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86 at [8]-[9] (Basten JA), [91]-[97] (Preston J), changes the position.
6. For the above reasons, the applicant maintains that Council did not have power to approve the development application and that, should the matter have proceeded to hearing, the Court would find that the applicant would have been almost certain to have enjoyed success.
7. The first respondent's primary position is that the applicant has not been able to demonstrate that he would have certainly succeeded in respect of Ground 6 and, even if he did establish that ground, whether he would have obtained any relief.
8. The first respondent submits that the applicant has approached the matter as if neither of the respondents had a properly arguable defence to the claim in Ground 6 and points to the fact that both the first respondent and Council had filed substantive defences to this particular ground, as well as the other five grounds pleaded.
9. The first respondent submits that these defences were not merely arguable but were well-founded and reminds the Court that, in order to assess the substance of the defences, it would be necessary to embark on a hearing of the substantive matter, an approach which the High Court eschewed in Ex parte Lai Qin.
10. In any event, the first respondent submits that the Consent is expressed clearly to apply to the Site and nothing in the Consent identifies it as applying to land other than that specified. As such, it is not a question of whether there was a condition or an "advisory" matter, but in its terms, the Consent only applied to land identified as the subject of the development application.
11. Moreover, given the Consent on its face only expressly referenced the identified Site (being the first respondent's land), the first respondent submits that there was no need for a condition which limited the development to certain areas and, in any event, the proposition that AD8 was only "advisory", and not a "condition", is not determinative in circumstances where the Consent itself was sufficient to identify the precise land to which the Consent related. He submits that AD8 was simply confirmation of that fact.
12. The first respondent further submits that, in any event, any distinction drawn between advisory matters and conditions is entirely artificial, and it is evident that AD8 is a condition. He contends that simply because something falls under a heading "Advisory Matters" does not take it out of the realm of being a condition; and points to the fact that the notice of determination states: "Consent is granted subject to the conditions listed in Attachment A" in circumstances where "Attachment A" includes parts "A" to "E" (with the advisory matters listed under part E) such that, part E forms part of the attachment.
13. The first respondent further submits that Council had power pursuant to s 4.16(4) of the EPA Act to grant development consent except in relation to a specified part and submits that the combination of the specific reference to development on land at the Site and AD8, had the effect of approving the development except any part on land to which the Consent did not relate. It further submits that (demolition) plan "A-DA-004", "Revision B", which shows the boundary wall, did not itself authorise that part of the works.
14. The first respondent also submits that, even if the applicant had been successful in his primary claim, other matters would need to be considered including discretionary matters, such as, first, whether the Court would have made an order in any contested hearing suspending the Consent under s 25B of the Land and Environment Court Act 1979 (NSW) ('LEC Act') He also notes that any approval for demolition of part of the boundary wall (even if the Court had found it should not have been part of the Consent) would have been a discrete matter which was readily capable of excision from the Consent.
15. Further in this regard, the first respondent submits that there were five other grounds which were contended for in the summons which indicate a far wider dispute, including contentions in relation to failure to notify; failure to consider relevant matters; and, a breach of the FSR standard; and that these matters themselves would have lengthened the substantive hearing and may have been relevant to the scope of evidence to be received and the like.
16. The other matter of discretion (which would otherwise have been relevant in any final hearing) raised by the first respondent is that the applicant, as is clear from his own evidence before the Court, was fully aware of the proposal to demolish the wall, having inspected the subject plans on Council's website before he made a detailed submission in which he did not raise any concern in relation to the location (and removal) of the subject wall; and, further, the fact that he himself had received a separate development consent from Council in relation to a redevelopment of his own, which involved the demolition of the wall (or part thereof).
17. Apart from its primary position, the first respondent submits that those discretionary matters would have been determinative in any contested hearing.

Consideration

1. Before considering the submissions, I make two preliminary observations. First, although it is sometimes said that an applicant or a plaintiff has achieved its objective in proceedings if there has been an effective surrender of a challenged consent, in the present circumstances, I do not consider this fact is, in any way, determinative. Secondly, I note that there is no suggestion that the parties in these proceedings have conducted themselves unreasonably or in a disentitling manner (to the extent that this may be of some relevance). I also note that, although during the hearing I expressed concerns that this was effectively a dispute between neighbours who continue to live adjacent to each other, nothing turns on this, and I have not taken this fact into account.
2. In accordance with the principles noted above, I approach the dispute on the basis, first, that the Court should not attempt to adjudicate the issues raised on the limited material available: Ex parte Lai Qin. I also note the fact that the applicant may have enjoyed some relief by the first respondent's surrender of the Consent (as part of a more recent consent), is not a matter that is either persuasive or determinative.
3. The discrete claim in Ground 6 relates to an element or part of the proposal which, in my view, having considered the description of the works in the development application and the Statement of Environmental Effects ('SEE'), is a relatively minor part of a more substantial development. The description of the development in the SEE is more fulsome than that provided within the development application (noted at [11] above), and provides: "Ground floor • Retention of existing Rawson Avenue structure including façade, chimney, entry porch & original front room fireplace & hallway. • Demolition of rear spaces including the stand-alone garage structure. • Addition of new dining, kitchen, living, bathroom & stair with external terrace to rear & side garden to north. New glazing to suit layout. • New glazing to existing north façade. First Floor • New first floor to accommodate Master Bedroom with ensuite and walk-in robe, two bedrooms, family bathroom, study area and laundry. Roof • New roof sheeting to existing roof structure. • New picture window opening and roof structure to first floor addition. External • Demolition of existing rear courtyard and hard-paving surface. • New rear terrace with lawn and landscape planting. • New side garden & planting to the north. • Replacement of existing paving to entry porch in-keeping with existing character of façade. • Replacement of existing breeze block wall to Rawson Avenue with metalwork fencing in-keeping with existing character of façade. • New boundary fence to north. • New car-parking and gates to Rawson Lane with planted edge above."
4. I am of the view that Ground 6 was, at least, an arguable (if not fairly arguable) claim. However, I am not persuaded that the applicant would have been almost certain to have succeeded if the matter had been fully tried such that the applicant should obtain his costs of the primary proceedings. My reasons may be shortly stated and reflect some, but not all, of the submissions made by the first respondent.
5. I consider that there is substance in the first respondent's position that, despite the approval of the plans including plan "A-DA-004", "Revision B" (which shows the part of the wall on the first respondent's land to be demolished being located on the applicant's land), there are two matters that were likely to militate against this being determinative.
6. First, the Consent is expressed to apply only to the Site, and it is the only land identified. It is arguable that the Consent does not purport to permit the carrying out of works other than on the Site. Under the heading "[d]etails of the land to be developed" on the first page of the "Notice of determination of a development application", the proposal is described as "[a]lterations and additions to single-storey dwelling including substantial demolition, internal reconfiguration and first floor addition".
7. I also consider that there is a legitimate, in the sense of properly arguable, further response, that the AD8 "condition" would have work to do in consideration of the Consent. As noted above, AD8 is styled in bold print and in upper case and states under the heading "work outside property boundary", "[t]his consent does not authorise any work outside the property boundary". Even if this was not a determinative condition of the Consent, it would, at least, militate against, or provide some response to, the applicant's claim.
8. Further, if the matter proceeded to final hearing, the manner in which the Court approaches the construction and interpretation of development consents is well-known: Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 at [158]. While I do not climb into the arena of determining the proper construction, I simply note that, in my view, there is a real prospect that, despite its slightly different numbering, AD8 would be considered in any determination as to the validity of the Consent. I consider that the Court would be likely to take a holistic and contextual approach to the construction of the Consent such that the Court would apply the principle that the Consent would be read as a whole, which would include consideration of the cover sheet, Attachment A, and AD8.
9. I also consider that, to the extent necessary, as submitted by the first respondent, there are no words of limitation to indicate that the conditions (or advisory matters) listed under part E are either not conditions of the Consent or operate in a manner differently to the conditions of the Consent in parts A to D.
10. Although I consider the above matters are particularly relevant or determinative of the motion before the Court, in that I am not satisfied that the applicant would have been almost certain to have succeeded, I will deal briefly with the other likely discretionary matters raised by the first respondent.
11. In summary, I do not find those matters particularly relevant or determinative given my findings above. I do not consider that the availability of s 25B of the LEC Act in relation to the possible "suspension" of the Consent would be necessarily determinative because, if the applicant's primary arguments were successful, there would be a question of the power of Council to grant the Consent.
12. Whether the Court in a fully contested hearing, if it found for the applicant, would suspend the operation of the Consent is a matter on which I cannot form a concluded view. The same applies to the first respondent's submissions in relation to the possible excision of the demolition of part of the boundary wall from the Consent.
13. In addition to the above matters, I am conscious that the power to award costs is an important aspect of rendering justice between litigants and that costs should be borne in a way that is fair. Suffice it to say, I am not satisfied that the applicant was almost certain to have succeeded if the matter was fully tried. I am also conscious that Council, being the authority which granted the Consent, is no longer a relevant party to this motion.
14. Considering all the circumstances, including (but not limited to) the settlement of part of the motion concerning Council (noted at [3] above), and the correspondence dated 5 October 2021 (in relation to costs of this motion) between the solicitors for the first respondent and the solicitors for the applicant, I find that the appropriate orders are: that the applicant be granted leave to discontinue the proceedings; that there be no order for costs of the proceedings; and, as the first respondent has enjoyed success on the motion, costs of the motion should follow the event. In the circumstances, I make the following orders.

Orders

1. The Court makes the following orders: 1. The applicant, Anthony Lambrinos Notaras, be granted leave to discontinue the proceedings against the second respondent, Waverley Council. 2. As between the applicant, Anthony Lambrinos Notaras, and the second respondent, Waverley Council, there be no order as to costs of the proceedings or the applicant's notice of motion filed 8 October 2021.
2. The Court further orders: 1. The applicant, Anthony Lambrinos Notaras, be granted leave to discontinue the proceedings against the first respondent, George Tsimourtos. 2. As between the applicant, Anthony Lambrinos Notaras, and the first respondent, George Tsimourtos, there be no order as to costs of the proceedings. 3. As between the applicant, Anthony Lambrinos Notaras, and the first respondent, George Tsimourtos, the applicant is to pay the first respondent's costs of the notice of motion filed 8 October 2021.

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: 20 June 2022