Rochford v Melis

Land and Environment Court (NSW)|2013-01-29|Before: Sheahan J

Introduction 1These Class 4 proceedings no longer have any utility, and should be discontinued. The applicant (Jim Rochford) seeks leave to discontinue them, but wants an order for costs in his favour. The respondent (Paul Melis) concedes that leave should be granted, but opposes an order for costs against him. He does not seek any order in his favour. 2In the summons commencing the proceedings Rochford sought: (1) a declaration that Melis has used and continues to use certain land (known as "Lot 20"), contrary to s 76A(1)(b) of the Environmental Planning and Assessment Act 1979; (2) an order restraining Melis from entering or using Rochford's land (which is legally burdened by a right of carriageway), without Rochford's prior consent, or other lawful authority; (3) an order that Melis cease occupying or using the dwelling on the land in (1), to which he gains access via the land in (2), until an occupation certificate is issued; and (4) costs. 3At the costs hearing Rochford was represented by counsel (Mr T To) who relied on evidence in customary form. Melis represented himself, with assistance from his wife, despite having engaged two firms of solicitors earlier in the dispute. During the course of the hearing before me, he made oral submissions, which included assertions of fact, of which he produced no evidence. I reserved my decision in order to examine the transcript of Melis's presentation and Mr To's response to it.

Melis's consent and his use of lands 10The relevant consent for the Melis dwelling (2000/CA-346), was granted to Melis and his wife Annette on 15 February 2001, by the then Yarrowlumla Shire Council (Rochford, fols 12ff), and Conditions 7 and 8, imposed on that consent, relevantly provided as follows (fol 14 - my emphasis): 7. Entrance to the land shall be from Rochford Road south of the southern boundary of Lot 50 DP 754914, or alternatively from the existing Right of Way through Lot 84 DP 754914, provided that if the entrance is from the Right of Way that evidence of coinciding legal and physical access through Lots 84 and 50 of DP754914 in favour of Lot 20 DP 867519 shall be forwarded to Council prior to issue of Certificate of Occupancy. Reason: To ensure that coinciding legal and physical access is available to the dwelling. 8. The entrance to the land shall be located so as to achieve safe intersection sight distance in both directions in accordance with the design speed of the road selected for the entrance, to approval of the Director Operation and Works, and shall be constructed as a Type C Entrance as specified in Council's Specification for Construction of Private Access Roads and Entrances. Reason: to ensure safe access to and from the land. 11In his Points of Claim (POC) filed on 22 March 2012, Rochford contends: 5.On its proper construction, condition 7 required access to the Respondent's Dwelling to be gained: (i) From Rochford Road south of the southern boundary of Lot 50 DP 754914; or alternatively, (ii)From an existing right of way through Lot 84 DP 754914, subject to obtaining and providing evidence of legal access prior to the issue of an occupation certificate. 6.The existing right of way referred to in condition 7 of the Consent: (i) Is the Right of Carriageway 20.115 wide created pursuant to transfer number V224253 burdening the Applicant's Land; and (ii)Did not, and does not benefit Lot 20 DP 867519.

The dispute 12Rochford says that he has never consented to Melis accessing Lot 20 via Lot 84, except that, in late 2003, during the course of the building work on Lot 20, when Melis had difficulty getting materials to his building site, Rochford informally agreed that Melis could take building material through that part of the Rochford lands "burdened by the Right of Carriageway 20.115 wide" (POC 8). Melis claims that the agreement they made in this regard was to cover the period until he received from Council an occupation certificate. 13Rochford claims that construction was largely completed in 2004 (POC 9), but he deposes (par 6) that Melis and his family did not move in until late 2010/mid 2011. His inquiries of the now Yass Valley Council (fol 19 and Exhibit R2, document 1) confirmed that, as at 23 June 11, no occupation certificate had ever been issued, and Melis conceded before me that none has yet been issued. 14In any event, Melis has continued to drive through the Rochford property, but Rochford has (1) confirmed on several occasions the withdrawal of any permission, (2) has continually declined to grant any more long-term right-of-way, and (3) has always contended that Melis has and should use alternatives available for access. It is not denied that, when Rochford fenced off Melis's offending route in 2008-09, Melis pulled the fence down. 15It is clear from all the evidence before me that, since early 2008, there has been much unpleasantness between Rochford and Melis over these matters, and there is evidence (in Rochford's affidavit) that that unpleasantness has spilled over into Melis's dealings with Muller, and Dwight. Melis contends that the dispute arose, and the historic relationship soured, only after Muller and Dwight came "onto the scene" (Tp24, LL25-38). 16Both Muller and Dwight depose (in their respective affidavits, both dated 19 March 2012) to observing the "trespass" across the Rochford land by interests associated with Melis, and also to various incidents of confrontation, damage, nuisance, and general unpleasantness among all involved. 17Some incidents referred to in various affidavits have included elements of danger, but, according to Rochford, the Yass and Queanbeyan police have been reluctant to become involved. Yass Valley Council advised Rochford on 14 October 2008 that it had no jurisdiction (fol 42). 18On the other hand, Melis relies upon his dealings with Queanbeyan Police (see [38]-[39] below).

Attempts made to resolve the dispute without proceedings 19Yass Valley Council wrote to Melis (with a copy to Rochford), on 15 February 2008 (fol 40), noting: (i)that "it would appear that your current property access to Lot 84 ... has no legal access to a public road" (ii)the terms of condition 7 (iii)that the absence of legal access "will need to be resolved prior to issue of a Certificate of Occupancy", and (iv)that "unless you wish to relocate your access directly to Rochford Road it would appear that legal access to your current driveway still needs to be created". 20In April 2008, Rochford and Hensley attempted to negotiate a solution (pars 7-8, and fol 20). Rochford put to Hensley a suggestion that Melis could use the alternative access available across Lot 30, which is "in the name of Hensley", and Hensley allegedly responded: "of course he could".

21There has been correspondence between Rochford and Council, and between solicitors and Melis (Rochford pars 12-17, 20-24, and fols 23-26, 29-33, 36-42, 48-51), in which it has repeatedly been made clear to Melis that Rochford refuses to grant him any right of carriageway: (a)on 25 June 2008 Rochford had solicitors Elrington Boardman Allport (David Major) write to Melis. That letter (fol 23) included the following: We are instructed to: 1. reiterate recent verbal advice from Mr Rochford to you that Mr Rochford is not willing to grant a formal right of way over Lot 84 DP754914 in favour of your land; 2. notify you that your permission to use Lot 84 DP754914 as a means of access by you, your family, servants, agents and contractors to lot 20 DP867519 will cease as from 31 July 2008; 3. suggest that in the meantime you apply your mind to the identification and construction of an alternative means of access to Lot 20 DP8567519 (sic) from the section of Rochford Road falling under council jurisdiction south of Lot 50 DP754914 as contemplated in Condition 7 of DA200/CA/346 (sic); and 4. request that as soon as possible after 31 July 2008 you procure the reinstatement of the dividing fence (dismantled by you to allow access to Lot 20 DP856519 (sic)) between Lot 84 DP754914 and lot 20 DP867519 to a stock proof standard. Mr Rochford has instructed us to assure you that the foregoing represents a considered business decision by him and is in no way to be construed as a personal judgment on you or your family. (b)on 14 August 2008, those solicitors wrote again, saying to Melis (fol 25): We are instructed: 1. that several years ago, at your request, verbal permission was given by Mr Rochford for the use by you of a road across Mr Rochford's above-mentioned land as a means of access to your building site on adjoining land (believed to be Lot 20 DP867519); 2. such permission was given on a neighbourly basis as a temporary measure only to facilitate your building works; 3. that Mr Rochford is not disposed to formalise such access arrangement into a legal right of way and has informed you accordingly; 4. to inform you that it is Mr Rochford's wish that such arrangement now be terminated altogether and that permission for you to use his land as a means of access is withdrawn effective 15 September 2008; 5. to assure you that the foregoing represents a considered business decision by Mr Rochford and is in no way to be construed as a personal judgment on you or your family; 6. to suggest that in the interim, consideration be given by you to the identification and construction of an alternative means of access to Lot 20 DP867519 from the section of Rochford Road falling under Council jurisdiction south of Lot DP754914 as contemplated in Condition 7 of your Development Consent DA2000/CA/346. We are also instructed to request that you procure as soon as possible and in any event prior to 12 September 2008 the reinstatement of the section of dividing fence south of Lot 84 DP754914 previously dismantled by you such work to be done in a proper and workmanlike manner to a standard sufficient to contain sheep and/or cattle. (c)at some date, thought by counsel for Rochford to be at about mid-late 2008, Annette Melis wrote to Rochford in these terms (Exhibit R1): I am writing to you to try and get an understanding from you as to why you will not formally give us right of way to our property. I simply do not understand why you won't allow us to use the road to allow us to get to our entrance. For the many years while we were building our new house you allowed the trucks etc access and you watched as we spent thousands and thousands of dollars on the driveway itself and the entry feature. We approached you prior to commencement of building and you had no opposition at all. I do not know what harm we are causing by using such a small section of the road that is used by several families. In fact it is us who maintain the section that we use by filling in pot holes etc and it was us that replaced the grid (at no expense to you). I ask you Mr Rochford to please reconsider and be true to your word to allow us legal right of way to our home - if you do not wish to do so could I ask for your reasons so I can somehow try to understand. (d)on 14 May 2009 (following a letter of 9 September 2008 not before the court) Melis wrote to Major (fol 31): Following a telephone conversation at 1.08pm on 13.5.09 with your Client Mr James Rochford, I was informed by him that he has contracted a fencing contractor to restrict legal access to the above mentioned Block of land. As previously stated in my correspondence to you dated 9.9.08, this act will be seen as unlawful and any restrictions to that block of land will be removed and all costs forwarded to Mr Rochford. If the structure is to be upheld we will be persuing (sic) all costs from Mr Rochford in relation to the driveway currently in place, the relocation of a new driveway and all legal costs involved currently estimated at $120,000 plus legal costs. I request that you find out the reasons Mr Rochford is taking this course of action, so that we can try and work to a harmonious solution. (e)Major responded to Melis at length on 20 May 2009 (fols 32-2). That letter relevantly included (fol 32): The assertion that there existed an "agreement by both parties for access by both Mr Rochford and the Hensley family ... " is denied. Any "permission" concerning access over lot 84 DP 754914 that may or may not have existed at the time (and such is not admitted) was by grace and favour of Mr Rochford and personal to the late Mr Hensley. The letter went on to quote advice received from surveyor Daniel Rowsell, and, in specific response to Melis's 14 May letter, concluded (fol 33): 1. Mr Rochford notes that you have failed to heed his request (as set out in our letter of 14 August) to cease using his land as a means of access to your dwelling and to reinstate the section of dividing fence previously dismantled by you and by this letter: (a) reiterates that permission for you to use Lot 84 DP 754914 as a means of access to your dwelling was withdrawn effective 15 September 2008; and (b) notifies you that he will without further notice at a time convenient to him procure the reinstatement of the dividing fence dismantled by you following which any action by you to dismantle any part of the fence separating Lot 84 DP 754914 from Lot 50 DP 754914 or Lot 20 DP 867519 will be considered an actionable trespass. 2. Your assertion that the action referred to in (b) above will be unlawful is rejected and any proceedings instituted by you will be defended. 3. It could be wise for further consideration to be given by you to the use of the means of access referred to in item 6 of our letter of 14 August 2008. 22A Community Justice Centre mediation was attempted at Yass Court House on 27 August 2009 (pars 18-20, and fols 34-5), attended by Rochford, Muller, Melis, and Hensley, in respect of which the "Agreement" document which they all signed recorded the following: Current Situation 1. There is a difference of opinion between the parties as to the existence of a Right of Way across the Rochford property to provide access to the Melis and Hensley property. 2. A Right of Way was granted to Paul Melis by Jim Rochford when the Hensley property was being built on but, Jim claims that his was for a short term during the construction phase only. 3. The situation as to whether or not Right of Way legally exists is in dispute. Proposed Resolutions 4. Paul proposes that if Jim recognises the Right of Way then he will agree to any of the following: a.pay for and construct a fence on the Northern side of the Right of Way parallel to the Northern boundary line of Lot 50 with a gate to Lot 84, b.place a grid at the access point to Lot 50 at the North West Boundary, c.place a gate at the access point to Lot 50 at the North West Boundary, d.place a gate and grid at the access point to Lot 50 at the North West Boundary, e.if Jim does not recognise the Right of Way, then to utilise the surveyed and registered roads layout as in accordance with the Council plans. 5. Jim proposes to take the above offers with a summary of the situation, for legal advice before agreeing to a final solution. 6. Jim agrees to notify Paul of the outcome of the legal advice received following consultation and his proposed actions following this. Communication 7. All agree that if they do meet whilst this matter is in dispute then they will treat each other in a respectful and cordial manner. 8. Jim agrees to notify Paul, in writing of the outcome of his legal advice. 23Following the mediation, Rochford wrote to Melis, perhaps twice, in October 2009 (par 20, and fols 36 and 37). The main remarks would appear to have been (fol 37): In conformity with my undertaking at the meeting on 27 August with you and Mr John Hensley before the officers representing the Attorney-General's Department of NSW I have consulted with my solicitor concerning the terms of the Agreement made that day and the offers made by you. My advice remains that Lot 50 DP 754914 and Lot 20 DP 867519 do not have the benefit of a legal right-of-way over my land and I do not proposes to grant one. As mentioned in my solicitor's letter to you of 20 May 2009, your permission to use my land as a means of access to yours has been withdrawn and I will, without further notice, at a time convenient to me arrange the reinstatement of the dividing fence (dismantled by you) separating Lot 84 DP 754914 from Lot 50 DP 754914. In accordance with point 4(e) of the Agreement made 27 August 2009, you should now make immediate arrangements to utilise the council-approved access to your land as specified in Condition 7 of your Development Consent. 24In 2010, Rochford retained his present solicitors, Baker Deane & Nutt, who wrote to Melis on 23 July 2010, in these terms (fol 48): We advise that you must desist from driving through out (sic) client's property or action will be taken under the Inclosed Lands Protection Act. We also advise that our client is within his rights to fence the area off preventing your access. We note that when our client has done this in the past, you have destroyed his fencing. This is not to happen again. We note there has been previous correspondence in this matter in an attempt to resolve the matter at the Community Justice Centre. However, our client is quite firm that he does not wish you to drive through his property and our client's wishes as a land owned (sic) must be respected. 25Those solicitors also sought advice from Queanbeyan Police (fol 49) as to "why you are reluctant to take any action" regarding the criminal offence Melis appeared to have committed.

These Proceedings are brought 26The applicant eventually decided (apparently after a period of poor health following his stroke in 2009 - fols 50-1, and Muller, par 2) to commence these proceedings, which sought (as more formally put in the summons filed 22 March 2012, c.f. [2] above) the following relief: 1.A declaration that the Respondent has used, and is using the land described in Certificate of Title Folio Identifier 20/867519 ("the Premises"), contrary to section 76A(1)(b) of the Environmental Planning and Assessment Act 1979. 2.An order that the Respondent (by himself and his employees, contractors, licensees and invitees) be restrained from entering upon or using the Applicant's land burdened by the Right of Carriageway 20.115 wide created pursuant to transfer number V224253, except with the Applicant's prior consent or pursuant to lawful authority. 3.An order that the Respondent cease the occupation and use of the dwelling on the Premises, to which access is gained via the Applicant's land burdened by the Right of Carriageway 20.115 wide, until an occupation certificate that authorises the occupation or use of the dwelling is issued. 4.Costs. 27On the same date, the applicant filed his POC, to which I have already referred ([11] above). 28Section 76A(1)(b), to which the summons refers, provides: 76A Development that needs consent (1) GeneralIf an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: ... (b) the development is carried out in accordance with the consent and the instrument. 29Rochford deposed (par 31): This continual trespass over my property is extremely disturbing to me. Having been threatened and assaulted by Mr Mellis, I am reluctant to confront him further... The continual trespass and destruction of the fences I have erected by Mr Mellis have interfered with the running of my farm. As Mr Mellis has cut my fences and constructed a driveway through my property, it is now impossible for me to run stock in that paddock without them straying as far as Mellis's house. 30Muller deposed (her affidavit pars 2, 4, 5, & 6), in respect of rural operations on the Rochford lands: ... I have now been a carer to Jim since he had a mild stroke in April 2009. Together we operate his farm with beef cattle. Previously he was running sheep on his property. ... There is continued trespass on Jim's land ... ... The agreement which was signed at the Community Justice Centre did not grant any right-of-way to Mr Mellis. The cattle are now largely run by me. We raise Prime Veal from Limousin cross Angus cattle. These are marketed mainly through Moss Vale sale yards. Accordingly, I have a keen interest in the resolution of the matter with Mr Mellis. With the boundary fence open and the water line severed by Mr Mellis, I have had to reduce stock numbers considerable (sic). This means reducing my income which is earned in conjunction with my own property. I have witnessed Mr Mellis using a bob cat on Mr Rochford's road. He has been grading it to sort out his own traffic requirements. However, after rain, the loose dirt washes down to block the culverts. 31There was some delay in effecting service of the summons, POC and the three supporting affidavits (of Rochford, Dwight and Muller), but the documents were accepted by Mrs Melis (by arrangement) on 2 May 2012 (affidavit of process server Anthony Baldock, 2 May 2012). 32On 17 May 2012, Melis filed an affidavit, the coversheet of which nominated David Faulkner of Davis, Faulkner & Co as his legal representative. 33On 24 May 2012, the day before he appeared in person before Pepper J (as List Judge), Melis, in his own right, filed a submitting appearance, save as to costs, but on 9 July 2012, again without a nominated legal representative, he filed Points of Defence (POD) in the following terms (emphasis added): 1 The respondent has been granted a Modification of Development Consent to the original development consent and construction certificate (no. 2000/CA-346) for access to the respondents dwelling at Lot 20 DP 867519. Access to Lot 20 will now be from the Northern End of Lot 50 DP754914. Particulars (i) Notice of Determination of Application to Modify Development Consent including approved plan. 34The Notice of Determination which he attached to his POD (now Exhibit R3) was dated 5 July 2012, and was in the following terms: Development Consent Number: 2000/CA-346 Modification Number: 80.2000.346.2 Development Type: Dwelling Owner of the Land Name: Mr J Hensley Owner's Address: 76 Rochford Road WALLAROO Via HALL NSW 2618 Applicant Name: Mr P Melis Applicant's Address: 76 Rochford Road WALLAROO Via HALL NSW 2618 Land to be developed: Lot 20 in DP 867519 and Lot 50 in DP 754914 Rochford Road, WALLAROO 2618 Modification: Development Consent 2000/CA-346 is proposed to be modified in order to formalise legal access to the land proposed to be developed. Made on: 5 July 2012 Determination: Approved in accordance with the attached plan stamped modified subject to the following amendment to the conditions of Development Consent 2000/CA-346: Amended Condition: 7.A restriction on the use of Lot 50 in DP 754914 shall be registered with the NSW Land Titles Office in accordance with the following schedule: Schedule a)Land Burdened - That part of Lot 50 in DP 754914 shown as having a 7.5m wide (minimum) Right-of-Carriageway on the plan approved by Yass Valley Council. b)Prescribed Authority Benefited - Lot 20 in DP 867519 c)Restrictions on Use - The use of that part of Lot 50 in DP 754914 shown as having a 7.5m wide (minimum) Right-of-Carriageway on the plan approved by Yass Valley Council is to be restricted to ensure that access is maintained to Lot 20 in DP 867519 in perpetuity d)Other Terms - The terms of each restriction shall include a term that the owner of Lot 20 in DP:867519 is the authority having the power to release, vary of modify the restriction. Note: Evidence of the creation of the restriction (right of carriageway) shall be submitted to Council. 35A marked-up approved plan showing the relevant "parallel" access route to Lot 20 was attached to the approval (in Exhibit R3). 36When the matter again came before Pepper J as List Judge on 27 July, counsel appeared for Rochford, and there was no appearance by or on behalf of Melis. Standard directions were given, and the hearing was later fixed by the Registrar for 7 September 2012.

Attempts to settle the proceedings 37It would appear that, on 9 July 2012, Baker Deane & Nutt wrote to Melis (no letter of that date is before the court). On 24 July, Melis wrote back (Exhibit R2, document 2) in reference to that letter and "with reference to the calderbank offer", saying: 1. We are not pursuing the permanent access to our property at this time. 2. We have been using this access as agreed with Mr. Jim Rochford and documented in "Community Justice Centre" Agreement dated 27th August 2009 File No. 00336 signed by all parties. See "Current Situation" No. 2 3. The premature blocking of access before completion of building works has lead to the building of a new access. 4. Litigation had not commenced prior to obtaining alternative access. Summon 9.30am 2nd May, final telephone conversation 6.38am And a confirmation fax from Detective Sergent Paul Barclay (copy attached). Summon notes 18th May for hearing - received letter 18th May advising change of date to 25th May 2012 In These circumstances it seems that your client would most certainly not be successful in these proceedings. In endeavour (sic) to resolve these proceedings without them being heard to finality, I formally reject your calderbank offer of the basis that it clearly is on whose purpose was to secure a cost advantage and propose a new offer with genuine compromise. I agree not to further use the right of way bordering Block 50 for day to day access to Block 20. Costs to be formulated on a basis that "each party pay its own costs". If this offer is not accepted and your client thereafter pursues the order against us, I put your client on notice that costs will be sought after including and not limited to legal, travel and new road construction. If such an application is made all correspondence and paper work to date will be relied on. Without predjudice (sic) save as to costs. 38Melis annexed copies of (1) the Community Justice Centre "Agreement", (2) at least the coversheet of the summons, and (3) an email sent to "Paul", at "Image Kitchens", on 2 May 2012, by Detective Sergent Paul Barclay, Investigations Manager of Monaro Local Area Command. 39Barclay said: As per our telephone conversation about 6.38am this morning, Wednesday 2 May 2012, you have agreed to arrange alternative means of access to your premises by the 2 June 2012 so entrance to your premises can be gained without the need for you (and/or other occupants of your premises) to travel along the Right of Carriageway that affects Mr Jim Rochford's property. You have further agreed that in the event the alternative access to your premises cannot be finalised prior to the 2 June 2012, you will contact me prior to this date so that a further assessment of any further time required can be discussed. I have contacted Mr Rochford's legal representatives and informed them of this arrangement. They have advised me that they will contact Mr Rochford and advise him of this arrangement. Please do not hesitate to contact me if any further issues relative to this matter arise prior to the 2 June 2012. Thank you for your assistance in this matter. 40On 13 August 2012, solicitor Raymond Halpin, of Howes Kaye Halpin, wrote on Melis's behalf to Baker Deane & Nutt, saying (Exhibit M2): We note that these proceedings have been commenced after our client had made alternative arrangements for a right of carriageway. Thus the Orders sought in the Summons for relief are unnecessary. Furthermore any costs claimed in these proceedings can only be the cost of the proceedings on a party party basis. We are instructed to put the following offer of settlement: 1. That the proceedings in the Land and Environment Court be discontinued. 2. That the parties enter into a Deed of Settlement releasing each other each (sic) from all claims against each other and reflecting the resolution of the dispute regarding the right of Carriageway 10-115 wide V224256 & DP 116935. 3. That our client pay your client the sum of $15,000.00 for the costs of the proceedings. We note that these proceedings have been commenced after our client had made alternative arrangements for a right of carriageway. Thus the Orders sought in the Summons for relief are unnecessary. Furthermore any costs claimed in these proceedings can only be the cost of the proceedings on a party party basis. This offer is made pursuant to the principles enunciated in Calderbank v Calderbank and shall be tendered to the court on the issue of costs should the matter proceed to a hearing. 41On 31 August 2012, Halpin wrote again to Baker Deane & Nutt, in reply to the latter's "recent correspondence", saying (Exhibit R2, document 3): We wish to point out that there is some serious difficulty with respect to your matter as to whether your client actually had the right to commence proceedings under the Environment Planning Act and Assessment Act 1979 (the Act) (sic). A proceeding under the Act can only be commenced and maintained where there has been a breach of the Act. Our client had not breached Section 76A(1)(b) of the Act. He could have only breached that Section if a Certificate of Occupancy had been issued under the existing Development Application. Furthermore in client's Defence (sic), he has pleaded that this matter has in fact been rectified and the Development Application has been modified to allow for a new right of way. Consequently, these proceedings are irrelevant and should not proceed to a hearing of the substantive issues. The only issue in respect of these proceedings is whether our client is duty bound to pay your client's costs. Consequently, we wish to put you on notice that our client do not (sic) require any of your witnesses for cross examination and the only issue to be canvassed before a Judge on 7 September 2012 is the issue of costs. Our client instructs us that the issue will be argued on the basis that each party should bear their own costs in this matter. 42Mr To refutes the legal submission made in Halpin's letter, and points out that (1) if true rectification of the situation had taken place by 2 May, Rochford and his solicitor had not been informed, (2) the modification is dated 5 July 2012, and (3) the summons had been filed on 22 March, albeit that was not served until 2 May (see Tp15, L43 - p16, L3, and Tp20, L41 - p21, L9).

Discussion 43Rochford accepts that, as from mid July 2012, Melis has ceased to use Rochford's land, for access to his house, contrary to his development consent. The substance of his Class 4 claim has thus been satisfied, and it should be discontinued, by leave of the court. 44Both sides agree that the proceedings now have no utility, and that the question of costs falls within Uniform Civil Procedure Rules 2005 ("UCPR") r 42.19, which provides as follows: 42.19 Proceedings discontinued (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. ... 45However, on his behalf, Mr To submits that Melis should pay Rochford's costs, on the normal party-party "agreed or assessed" basis. In other words, he submits that Rochford is entitled to an "order otherwise", under r 42.19, on the following grounds:

Melis effectively "surrendered" by ceasing to use Rochford's lands;
Rochford's success in the matter was "virtually certain", as Melis knew by February 2008 that his use was unlawful and that any arguable permission to use the access had been withdrawn;
Melis's continuation of his unlawful use, and his refusal to cease, persisted beyond the commencement of the proceedings;
That it was those proceedings which forced Melis to face up to his position; and
There was no "disentitling" conduct on Rochford's part. 46Mr To relies on the principles to which Pepper J referred in Eather v Mosman Municipal Council [2012] NSWLEC 92 ("Eather"), especially at [23]-[35], to submit that Rochford's evidence demonstrates "good reasons" for exercising the court's costs discretion in favour of the applicant, rather than the respondent, on this occasion. 47Her Honour relied upon the oft-quoted key statements in One.Tel Ltd v Commissioner of Taxation [2000] FCA 270, 101 FCR 548 (per Burchett J at [6]), Kiama Council v Grant [2006] NSWLEC 96, 143 LGERA 441 (per Preston J at [80]), Fordyce v Fordham [2006] NSWCA 274, 67 NSWLR 497 (per Santow JA), and Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 (per Basten JA at [72]-[75]), in arriving at her conclusion (at [35]): To summarise, while not rising as high as a presumption, pursuant to r 42.19 of the UCPR the discontinuing party must demonstrate a good reason why a court should not exercise its discretion in the ordinary way by ordering that the discontinuing party pay the costs of the other parties. Such an approach is consistent with both the language and objective purpose of the rule. 48These principles have been frequently discussed and applied by judges of this court, in cases where leave to discontinue is sought and "surrender" is argued: See, for example, Biscoe J in Garners Pty Ltd v Gloucester Shire Council [2012] NSWLEC 205, or myself in Great Lakes Council v Wilkes [2010] NSWLEC 117, or Gillespie v Wolseley Investments Pty Ltd [2011] NSWLEC 24. 49This is, Mr To submitted, clearly a case of "surrender", rather than "supervening event". 50However, Melis argues (Tpp22-30) that Rochford granted the temporary access/permission, not just for the construction period, but until Council granted an occupation certificate. He contests the accuracy of much of Rochford's affidavit evidence, but did not "fight" that material (Tp27, LL35-7). He relies on the 1970 inter-family arrangements (Exhibit M3), insofar as they envisaged ongoing mutual accommodation, which he says continued satisfactorily until Rochford came under the influence of Dwight and/or Muller. Under Muller's influence, Rochford reneged on the agreement reached in the cattleyards conversation between the parties, even before Melis submitted to him "the paperwork" envisaged during that discussion. 51The then relevant local Council granted oral approval of occupation, but, when Council amalgamations intervened, the necessary certificate was delayed for three years. Despite that, Melis sought to resolve the dispute from well prior to the proceedings (e.g. Barclay's intervention). He has also kept his own costs down, and seeks none from Rochford. His position was summarised in his submission (Tp30, LL27-31): Each one of the legal documents that have been sent to me is to cease access for daily use of the house, we aren't doing that. We've only done it for building of the house and when we can't use the steep road going down because of wet weather and stuff like that. 52In reply to Melis's submissions, Mr To (at Tpp31-3) points out that he was not on notice of the contentions regarding the 1970 arrangements and the parties' alleged intention that the relevant permission was to endure until the actual occupation certificate was/is issued. The only "evidence" for those contentions is in the form of Melis's assertions from the bar table, against which, without an undesirable adjournment of the hearing, Rochford could not put on contrary evidence. 53However, Mr To was content to rely upon the unchallenged evidence before the court that Melis was clearly on notice, on any reading of the relevant communications, that any permission to use Rochford's land was "plainly" withdrawn early in 2008. 54Melis was also on notice, prior to Barclay's communication, and by virtue of the process server's conversations with Mrs Melis, that proceedings had been commenced (see Baldock, pars 6 and 7). 55Melis's failure to respond to Rochford or his legal representatives (e.g. making no reply to Major's 2008 correspondence - 21 and (b) above), and his reliance instead on discussions with police, have not been explained. In any event, on his own admission (Tp33, LL35-37), Melis was informed by the police that the dispute was a civil, and not a police, matter.

Conclusion 56I respectfully adopt, and will follow, Pepper J's summary, in Eather ([46]ff above), of the appropriate principles, and I accept Mr To's submissions. 57In all of the circumstances I have described, the very belated commencement of these proceedings by Rochford was entirely reasonable. They were clearly a "last resort". 58Melis acknowledged that costs are designed to compensate, and not to punish (Tp29, LL21-4), and that the court will adjudicate neither on any unpleasantness that has occurred between the parties, nor on the amount of costs that might be appropriate. 59The applicant is clearly entitled to an order for his costs of the discontinued proceedings, and also his costs of arguing for it.

Orders 60The court, therefore, orders:

That leave be granted to the applicant to discontinue the proceedings, by consent.
That the respondent pay the applicant's costs of and incidental to the proceedings, including the applicant's costs of the costs hearing on 7 September 2012, on a party-party basis, as agreed or assessed.
That all exhibits be returned, except Exhibit R3.

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: 04 February 2013

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Judgment (12 paragraphs)

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Cases Cited (8)