Pan Pacific Property Group Pty Ltd v Waverley Council

APPLICANT Mr N Eastman (barrister) SOLICITOR Gadens Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms C Morton (solicitor) SOLICITOR Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10317 of 2009 Pan Pacific Property Group Pty Ltd v Waverley Council

JUDGMENT 1 REGISTRAR: The respondent in these proceedings seeks its costs of the notice of motion filed 4 December 2009 seeking an order to vacate the hearing dates, and its costs thrown away by reason of those orders being granted. The notice of motion was opposed by the applicant and was heard by Commissioner Pearson, who is part heard in the proceedings, on 7 December 2009. The Commissioner vacated the hearing date in order to allow the applicant to provide to the respondent the plans and for the respondent to notify those plans.

2 The respondent, being successful on the notice of motion, now seeks its costs in accordance with prayer 6 of the notice of motion. The matter was therefore listed before me for the determination of the question of costs. Due to time constraints, my decision was then reserved. It is well known that in exercising my discretion to make an order for costs in proceedings in Class 1 of the Court's jurisdiction, I am required to consider rule 3.7 of the Land and Environment Court Rules 2007, which provides: "(1) … (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: … (d) that a party has acted unreasonably in the conduct of the proceedings, …"

Brief Background 3 The hearing of the proceedings commenced on 29 September 2009 before Commissioner Pearson. The Commissioner then adjourned the proceedings to allow the applicant to receive the recommendations of the Design Review Panel pursuant to clause 30 of the State Environmental Planning Policy No 65. When the matter resumed on 5 November 2009, the applicant indicated its intention to amend the plans to respond to those recommendations. As a result, the parties' town planners prepared a list of amendments and leave to rely on amended plans was given by the Commissioner in accordance with that list. The matter was then stood over to e-court, and on 10 November 2009 the following directions were made: 1. The applicant to file and serve amended plans in accordance with the leave granted, and any Voluntary Planning Agreement, by 13 November 2009; 2. The respondent to undertake and complete notification of amended plans by 4 December 2009. 3. The respondent to file and serve an amended statement of contentions, if any, by 11 December 2009. 4. The respondent to file and serve amended without prejudice conditions of consent, if any, by 11 December 2009. 4 In accordance with the timetable, the applicant provided the amended plans on 13 November. In order for the respondent to comply with order 2, it was required to commence notification on 20 November 2009. On 18 November 2009 the respondent wrote to the applicant requesting a list of the amendments in accordance with clause 55 of the Environmental Planning and Assessment Regulations 2000. I accept the applicant's observation that such a requirement is unnecessary for and irrelevant to notification of the plans. The applicant nonetheless responded on the same day by providing a typed version of the list of amendments that was prepared by the town planners and constituted Exhibit E in the proceedings. In its letter the respondent also requested the amended plans be revised so that the amendment block reflected the date on which the plans had been amended. On 20 November 2009 the applicant provided those drawings as requested.

5 Subsequently, on 24 November 2009 the respondent communicated to the applicant four issues in relation to the amended plans. These issues raised firstly the requirement for a landscape plan and secondly the requirement for the words "LEC Approval" to be removed from the amended drawings. Thirdly, the correspondence raised a suggestion that the development required work on Council land. Fourthly, the respondent alleged that the amended drawings were outside the scope of the leave granted by the Commissioner on 6 November 2009. The applicant replied by letter of 27 November 2009 indicating that none of the issues raised prevented the Council from notifying the amended drawings. The letter also provided to the Council the applicant's consent for the removal of the words "LEC Approval" from the drawings. The letter indicated that the applicant would seek to re-list the matter to obtain further leave of the Commissioner if the respondent did not agree that the amendments were prepared in accordance with the leave granted.

6 On 1 December 2009 the respondent again wrote to the applicant, repeating the issues concerning firstly the scope of the leave granted at the hearing on 6 November 2009, and secondly the failure to remove the words "LEC Approval" from the drawings. The applicant responded on 3 December 2009, reiterating its earlier indication that they would have the matter re-listed for leave to be granted to rely on the amended plans. The applicant also indicated its consent for the removal of the words "LEC Approval" from the drawings, and enclosed the drawings that they asserted did not contain those words. However, by accidental omission or otherwise, whilst the enclosed drawings had the words "LEC Approval" removed in one area, the words remained on the bottom of the drawings.

7 The respondent then filed the present notice of motion on 4 December 2009. On 7 December 2009 the Commissioner granted the vacation of the hearing dates on the basis that the plans required notification, and made a direction for the plans to be provided to the respondent without reference to the words "LEC Approval".

Submissions 8 The respondent submits that the applicant was unreasonable in its conduct of the proceedings in failing to provide plans in accordance with their letters dated 24 November and 1 December 2009. The respondent points out that the final plans were not provided until such time as a direction was made by the Commissioner on 7 December 2009. The respondent relies on the directions made by the Commissioner on that date to establish that the fault causing the vacation of the hearing dates lies with the applicant for failing to provide proper plans.

9 The applicant submits, however, that the respondent has been unreasonable in failing to comply with the Court's directions. Specifically, the applicant says that the respondent's requests were not a reasonable basis upon which to delay notification. The applicant notes that it was open to the respondent, having received the letter of the applicant indicating its consent to the removal of the words "LEC Approval", to remove those words itself. The applicant also says that no reasonable explanation was provided as to why the requests of the respondent were not made prior to the time by which the plans were required to be notified.

Question of costs 10 I cannot accept that, having regard to the whole of the circumstances, the applicant has acted unreasonably in the conduct of the proceedings. Whilst I accept that the applicant failed to provide the plans as requested, the respondent has failed to provide any explanation as to why the questions raised in their email of 24 November 2009 were not raised earlier given that the plans were provided on 13 November 2009. Similarly, no explanation was provided as to why the respondent did not seek to have the matter re-listed in order to obtain directions in relation to what they say was required prior to notification. Even following the applicant's suggestion, in its letter dated 27 November, that the matter ought to be re-listed if there was an issue in relation to the scope of the leave granted by the Commissioner, the respondent failed to deal with that suggestion in its subsequent replies.

11 Each of the parties to civil proceedings, and their legal representatives, have an obligation to assist the Court in achieving its overriding objective to facilitate the quick, just and cheap resolution of the issues in the interlocutory proceedings in accordance with s 56 of the Civil Procedure Act 2005. The Court makes directions in order to facilitate this overriding objective. There is an obligation on parties to comply with the directions of the Court. Unless expressly provided, directions are not made conditional upon the conduct of the other parties to the proceedings.

12 It is completely contrary to a party's obligation pursuant to s 56 for the respondent to fail to take any steps to ensure their compliance with the directions of the Court. It is similarly contrary to that obligation to wait until two weeks prior to the hearing date, and two and a half weeks after notification should have commenced, to file the notice of motion seeking vacation of the hearing dates. The obligation was on the respondent to comply with the direction of the Court. If it couldn't comply with the direction due to the conduct of the applicant, the appropriate and proper course would be to have the matter re-listed. However, the respondent failed to do so, and similarly failed to deal with the applicant's suggestion to do so. If such a course had been adopted, the issue of what was required of the applicant in order to allow the respondent to notify the plans would have been determined. Directions could then have been made in relation to those requirements without the necessity of vacating the hearing dates.

13 Further, the Council made numerous requests of the applicant, only one of which would have actually precluded notification. The three issues concerning the landscape plan, development on Council land, and discrepancy with the agreement reached at the hearing are not issues that precluded the Council from commencing notification. This was confirmed when the matter was before the Commissioner on 7 December 2009. The only issue that was relevant to the notification was the removal of the words "LEC Approval". However, upon receiving the letters of 27 November and 3 December 2009 advising of the applicant's consent to the removal of the relevant words, the respondent failed to follow this up with a further e-mail, letter or phone call that questioned why the plans as provided still contained the relevant words.

14 In circumstances where the respondent failed to take any of the steps that I have outlined above, I cannot accept that the failure of the applicant to provide plans as requested was unreasonable. Having regard to the whole of the circumstances, it was the conduct of the respondent that was unreasonable in failing to take steps to ensure that they could comply with the directions of the Court. Therefore, I cannot accept that it is fair and reasonable for a costs order to be made in favour of the respondent. The applicant has not made an application for its costs thrown away by reason of the vacation of the hearing date. The applicant has instead asked that the part of the notice of motion seeking costs be refused. I will make an order to that effect. It remains open to the applicant to file a notice of motion seeking its costs thrown away by reason of the vacation of the hearing dates.

15 The applicant also seeks its costs of the costs application. Generally in proceedings for costs, costs will generally follow the event. Furthermore, in my view, in the circumstances the respondent was unreasonable in pursuing the application for costs, and for that reason also I accept that it is appropriate for the respondent to reimburse the applicant for its costs of the application before me on 9 December 2009.

16 The orders of the Court are as follows: 1 Prayer 6 of the notice of motion filed 4 December 2009 be dismissed; 2 The respondent pay the applicant's costs of the costs application made by the respondent pursuant to prayer 6 and heard on 9 December 2009.

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