Ross v Lane Cove Council

Judgment

1. MACFARLAN JA: This is an application by Mr Raymond Ross for leave to appeal against orders that he pay the costs of the Lane Cove Council (the "Council") in two sets of Class 4 proceedings brought by the Council in the Land and Environment Court. The proceedings fell within Class 4, as identified in s 20 of the Land and Environment Court Act 1979 (NSW) (the "LEC Act"), because they were proceedings in which enforcement orders under s 123 of the Environmental Planning and Assessment Act 1979 (NSW) (the "EPA Act") were sought. Section 58(1) of the LEC Act confers a right of appeal to the Supreme Court in respect of orders made in Class 4 proceedings, but s 58(3) precludes an appeal against an order as to costs unless leave is granted.
2. Whilst it is inappropriate to lay down "rigid and exhaustive criteria" as to the circumstances in which leave to appeal will be granted (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39), leave to appeal to this Court is ordinarily only granted where there is an issue of principle or general importance, or an injustice can be demonstrated with reasonable clarity (Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [26]). Where an injustice is alleged, the applicant must do more than point to an error that is merely arguable (The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).
3. The hurdle that an applicant must surmount to obtain leave is heightened where, as here, the orders sought to be appealed were made in the exercise of a lower court's discretion. To successfully challenge a discretionary decision it is necessary for an appellant to demonstrate that some error of principle has occurred, that the judge has failed to take material considerations into account, has taken irrelevant considerations into account, or that the order made below is "unreasonable or plainly unjust" such that "the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance" (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40).
4. After consideration of Mr Ross' extensive submissions, and the Council's responses, my view is that Mr Ross does not have any significant prospect of establishing an error of the House v The King-type if leave to appeal were granted. In large measure, his submissions seek to have this Court take a different view to that taken by the primary judge regarding the reasonableness of the parties' conduct in the protracted proceedings below. It is not the function of the Court to engage in such an exercise on an application such as the present. After consideration of the submissions made to this Court, it appears to me that the various conclusions reached by her Honour were ones that were reasonably open to her. In these circumstances, and because it does not raise any question of principle or general importance, Mr Ross' application for leave to appeal must be dismissed with costs.
5. It is inappropriate to deal in these reasons with the detail of Mr Ross' submissions, which I have nevertheless considered carefully with the benefit of supplementary written submissions provided by the Council and Mr Ross' reply. Mr Ross' written submissions total 34 pages, whilst those of the Council total 21 pages. It is ordinarily sufficient to give short, "perhaps very short", reasons in disposing of an application for leave to appeal to this Court (see generally Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 181 ALR 307; [2001] HCA 49 at [24]-[26]). It is therefore sufficient to add the following as supportive of the conclusions that I have reached above.
6. The nature of the proceedings was described in the Council's written submissions as follows: "The proceedings before the Land and Environment Court originally related to the Respondent's (Lane Cove Council/the Council) application to restrain the applicant (Mr Ross) from carrying out works otherwise that (sic) in accordance with a development consent granted, in breach of s 76A of the Environmental Planning and Assessment Act 1979 (EP&A Act). The proceedings were commenced by the Council on 28 June 2012. In August 2012, the Court made declarations about the unlawful works (which were admitted) but rather than make orders for demolition, the Court adjourned the balance of the proceedings to allow Mr Ross to take steps to obtain approval for the works either pursuant to s 96 of the EP&A Act or a building certificate pursuant to s 149A of the EP&A Act (both of which, subject to a merit assessment of the built work, operate to effectively oust past unlawfulness, although both may require alteration and removal or some of the built works). After several aborted attempts, a conditional building certificate was ultimately obtained finally, three years later. … After the issue of the building certificate, the Council applied by Notice of Motion to discontinue the proceedings, on terms, being that Mr Ross pay the Council's costs. That application did not, by necessity, extend to all aspects of the proceeding, as a number of costs orders had already been made against Mr Ross on interlocutory applications he made throughout the course of the proceedings. There are 16 separate judgments of the Land and Environment Court that have been delivered in these proceedings. In the costs judgment, Pain J had regard to s 98 of the Civil Procedure Act 2005, Rules 12.1, 42.1 and 42.19 of the UCPR, granted leave to discontinue and exercised the Court's discretion to award the costs the Council sought" ([3]-[6]).
7. The Council's written submissions also adequately summarised the primary judge's findings as follows: "By reference to a series of findings and conclusions under separate headings, Her Honour: a. Rejects Mr Ross' contentions that the Class 4 proceedings were not properly commenced; b. Considers the circumstances which have resulted in the discontinuance of the main proceedings, including considering the effect of the Court of Appeal's decision on the non-joinder of Ms Chami [a person to whom Mr Ross transferred the land]; c. Determines that the substantive legal result in these proceedings is known (given the demolition orders previously made) so this is not a case where the discontinuing party could be considered unsuccessful (referring to [Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32]); d. Determines that the fact that a merit assessment in Class 1 proceedings (the original s 96 appeal and the subsequent building certificate appeal) 'can be described as Council achieving the outcome sought in the Class 4 proceedings'; e. Determines that the effect of both Mr Ross' admission of carring (sic) out unlawful works and the need to have subsequent merit assessment of the unlawful works (by later s 96 application and/or building certificate application) 'can be characterised as surrender to the Council's civil enforcement case'; f. Determines that there was no disentitling conduct by the Council in relation to the way the original s 96 appeal and proceedings before Dixon C in the Land and Environment Court were conducted; g. Determines that there was substantial delay in bringing the building certificate application, which essentially forced the Council to continue the litigation, in circumstances where that merit assessment process was not prosecuted in a timely fashion; h. Determines that the results in the merit assessment in the building certificate appeal were ultimately not relevant to the need for that exercise to be carried out when unlawful works had, by admission, been undertaken. The proceedings by necessity, served [different] purposes (and didn't form any part of the costs application before Pain J in any event); i. Determines that there were substantial delays by Mr Ross in the way in which he conducted the Class 4 proceedings including 'dilatory or absence of compliance with [court] orders by Mr Ross' and a 'clear pattern of delay and obfuscation'. Orders made by the Court were 'openly defied'. Her Honour noted that this Court referred to Mr Ross' conduct in his appeal before it, that the conduct 'appeared to constitute deliberate and sustained breaches of the obligation to comply with the court orders to facilitate the just, quick and cheap resolution of the real issues in the proceedings'. Her Honour then considered that this all resulted in her Honour's acceptance of 'unreasonable behaviour'. Her Honour concluded that for all of those reasons she would exercise her discretion to make costs orders in the balance of the Class 4 proceedings in which specific costs orders had not already been made (noting that on [many] of the interlocutory applications, costs orders in the Councils favour had already been made)" (references omitted).
8. In his written submissions in chief, Mr Ross stated (in [29]) 11 points by way of summary of his argument. These were answered by the supplementary written submissions lodged by the Council. None of Mr Ross' points are more than arguable, most being simply invitations to this Court to take a different view about the reasonableness of his conduct. An example is his identification of the following issue he wished to raise for determination by this Court: "(c) Whether the appellant's failure to implement the final demolition orders, shown to be unlawful, amounting to the total demolition of a property not registered in his name was sufficient to ground a finding of unreasonable conduct to warrant a costs order such as the subject costs order."
9. In the conclusion to his written submissions in chief (at [50]-[54]) and in his written submissions in reply (at [1]), Mr Ross contended that the Council misled the Court as to certain matters. In reality however, his complaint was no more than one that the primary judge took an erroneous view of the reasonableness of Mr Ross' conduct. This is because Mr Ross did not demonstrate any basis for concluding that the primary judge was not aware of all material facts.
10. Mr Ross' further written submissions in reply confirm that, if leave were granted, disposition of the appeal would involve this Court undertaking a detailed examination of the factual circumstances of the proceedings below. Further, if the appeal were to succeed the Court would have to take a different view of those circumstances to that taken by the primary judge in her Honour's 50 page judgment.
11. I add in conclusion that at a number of points in his further written submissions in reply, Mr Ross asserted that what occurred in his application for modification of the development consent and building applications could not be relevant to the exercise of the Land and Environment Court's discretion as to costs in the Class 4 proceedings. This is not so as these events were relevant to whether the Council was justified in commencing and pursuing the Class 4 proceedings.
12. In the absence of Mr Ross demonstrating that the proposed appeal involves an issue of principle or public importance, or that he has more than an arguable case, leave to appeal should be refused and Mr Ross' summons should therefore be dismissed with costs.
13. WHITE JA: This is an application for leave to appeal from orders of the Land and Environment Court (Pain J) of 16 March 2017 (Lane Cove Council v Ross (No 16) [2017] NSWLEC 26 requiring the applicant to pay costs of Class 4 proceedings No. 40628 of 2012 (renumbered 2016/160309). The litigation between the Council and Mr Ross was extensive. It arose from the unauthorised construction by Mr Ross of building works to a residential property in Bayview Street, Northwood.
14. The following chronology is taken from the chronology provided in the reasons of the primary judge (at [13]), unless otherwise indicated.
15. On 25 July 2007 Mr Ross contracted to purchase the Bayview Street property. On 2 April 2008 he obtained a development consent for alterations and additions to the Bayview Street property. The development consent required that any work carried out be strictly in accordance with identified drawings (Lane Cove Council v Ross [2012] NSWLEC 153 at [3]).
16. Mr Ross contends that excavation work commenced in June 2008. He contends that on 1 March 2009 the council directed that driveway levels be varied and that this required a lowering of the proposed garage level. He contends that construction carried out inconsistently with the terms of the development consent was justified on "uncontroverted structural engineering grounds", had no impact on planning controls, and that the responsible Private Principal Certifying Authority consented to the changes on the basis that they met exempt and complying development criteria in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Pt 2 Div 1 subdiv 5 cl 2.9. He contends that the council officer responsible for the development, a Mr Thomas, orally consented to the departures from the terms of the development consent and that no formal consent was required from the council on the basis that the council was not the Principal Certifying Authority.
17. Mr Ross said that the allegedly non-complying works were carried out in 2009 or 2010.
18. On 28 June 2012 the council commenced Class 4 proceedings seeking declarations that works had been carried out otherwise than in accordance with development consent and an order to restrain further works.
19. On 6 July 2012 on the council's ex parte application, the Land and Environment Court (Craig J) ordered Mr Ross to refrain from carrying out any building work at the second floor level of the premises until further order (Lane Cove Council v Ross [2012] NSWLEC 153). Craig J referred to evidence adduced by the council that suggested that at the second floor level the building slab had been extended beyond that shown for it on the plans and that there was located on that slab either partially constructed walls or a number of pallets of bricks indicating that the work carried out and to be carried out would not accord with the approved plans (at [4]). On the return of the summons on 12 July 2012 Mr Ross belatedly appeared (Lane Cove Council v Ross (No 2) [2012] NSWLEC 160). Mr Ross admitted that construction work had been carried out otherwise than in conformity with the development consent, but sought to justify the change on the basis that the changes were contained within the approved building footprint and height envelope and would ordinarily be approved by the council under existing guidelines (at [18]-[19]). Mr Ross stated that a s 96 modification application would remedy the "technical" breaches of the consent (at [21]).
20. It appears from the later judgment of Biscoe J of 17 July 2013 (Ross v Lane Cove Council [2013] NSWLEC 109) that by a letter dated 16 May 2012 to Mr Ross the council had contended that he had carried out works otherwise than in accordance with the existing development consent and required his written undertaking to submit to the council within 14 days a modification application under s 96 of the Environmental Planning and Assessment Act 1979 (NSW) (the "EPA Act") in respect of all of the unauthorised works (at [12]). It appears from Biscoe J's judgment that on 17 May 2012 Mr Ross indicated that he would be seeking a building certificate under s 149D of the EPA Act. The Council requested a s 96 modification and said that an application under s 149D for a building certificate would be likely to be inadequate for proper assessment by the council.
21. Under s 96(1A), a consent authority is permitted to modify a development consent if the consent as modified would relate to substantially the same development as that for which consent was originally granted. Section 149D provides that a council may issue a certificate that it will not seek an order for the demolition of building works carried out contrary to the terms of the development consent.
22. In Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 Pepper J said (at [5]) that in early July 2011 (scil. 2012) Mr Ross lodged an application under s 96 to modify the consent and thereby seek retrospective approval of the unauthorised works. On 16 July 2012 the council rejected the application on the basis that it was incomplete.
23. On 12 July 2012 Pepper J extended the interim injunction given by Craig J on 6 July 2012 to 24 July 2012 and directed Mr Ross to serve his evidence by 20 July 2012 (Lane Cove Council v Ross (No 2) [2012] NSWLEC 160).
24. On 24 July 2012 Mr Ross did not appear (Lane Cove Council v Ross (No 3) [2012] NSWLEC 171). Pepper J set down the council's summons for final hearing on 1 August 2012 and directed Mr Ross to serve any evidence upon which he sought to rely at the final hearing of the summons by 27 July 2012. The interlocutory injunction was continued. The hearing set down for 1 August 2012 was adjourned to 13 August 2012 and the interlocutory injunction was further extended.
25. On 10 August 2012 Mr Ross lodged a further s 96 modification application.
26. Mr Ross appeared at the hearing on 13 August 2012 (see Lane Cove Council v Ross (No 4) [2012] NSWLEC 191). He admitted that the work carried out was contrary to the terms of the consent (at [7]). Pepper J recorded that Mr Ross gave the following reasons for that breach: "[8] The reasons Mr Ross gave for breaching the consent were: first, the works were necessary in order to complete the construction in an efficacious manner; second, the changes were contained within the approved building footprint and height envelope; third, the works would ordinarily have been approved by the council; and fourth, the council was, in any event, aware of the works. Mr Ross described the breaches as 'technical'."
27. Pepper J recorded that on 9 August 2012 (four days before the final hearing), Mr Ross filed a notice of motion seeking an order for the stay of the proceedings pending the lodgement of a s 96 modification application by him and its determination by the council. He sought an order that the final hearing be vacated. The notice of motion was stood over to the first day of the hearing. Mr Ross relied upon an affidavit dated 29 July 2012 that had not been served in its entirety and which, with annexures, totalled 118 pages (at [14]). After an adjournment, Mr Ross consented to the Court's making declarations that the alterations and additions had not been carried out in accordance with the development consent, that such alterations and additions had been carried out in breach of s 76A(1)(a) of the EPA Act, and an order that he be restrained from carrying out any further development of the premises, in the nature of alterations and additions or other excavation, construction or building works, in breach of s 76A(1). The balance of the summons, in which the council sought demolition orders, was adjourned to give the council the opportunity to consider Mr Ross' belatedly served affidavit. The council informed the Court that it was possible that upon an assessment of Mr Ross' s 96 modification application the need to pursue the remainder of the relief in the summons might fall away (at [16]).
28. In her reasons of 13 August 2012 Pepper J said that it was appropriate to make the declarations sought by the council: "… to denounce the deliberate conduct of Mr Ross in breaching the terms of the consent. It is also hoped that that the making of the declarations within this judgment will act as a deterrent to others who may be minded to engage in unlawful building works …" (at [19])
29. Costs were reserved.
30. To entertain Mr Ross' present argument that the Class 4 proceedings should never have been brought, that they were an abuse of process having been brought as retaliation for Mr Ross' success against the council in unrelated proceedings in the Local Court, that the departures from the development consent were authorised by the Private Certifying Authority, and that the council itself had orally consented to the unauthorised works, would be to entertain a challenge to the orders of 13 August 2012. There was no appeal from those orders. They cannot be reopened on an argument about costs. There is not even an arguable basis that the primary judge was wrong in ordering Mr Ross to pay the council's costs of the Class 4 proceedings, at least up to 13 August 2012.
31. After 13 August 2012 matters became more complicated. On 2 October 2012 the council refused Mr Ross' s 96 modification application.
32. Between November 2012 and February 2013 the Class 4 proceedings were listed for directions on five occasions.
33. On 18 and 19 December 2012 Commissioner Dixon heard the Class 1 appeal from the council's refusal of the s 96 application (Ross v Lane Cove Council [2012] NSWLEC 1364). Dixon C gave indicative approval of the application pending preparation of new plans and registration of the transfer of the property to Mr Ross or else to provide the registered owner's consent.
34. On 10 January 2013 the transfer to Mr Ross was registered.
35. In his reasons of 17 July 2013 (Ross v Lane Cove Council [2013] NSWLEC 109) Biscoe J recorded that shortly prior to the December hearing before the Commissioner, the parties' planning experts filed a joint report. His Honour noted that their report said nothing about the application of s 96. The planning experts disagreed as to the merits of certain concrete awnings (at [17]). Comments made by the Commissioner during the December hearing caused Mr Ross to become concerned that the Commissioner might accept the council's contention that his proposal was not substantially the same as the development originally approved (at [18]). Consequently he amended his s 96 application by deleting the concrete awnings. His intention was to lodge a separate building certificate application for the concrete awnings because they could then be considered on their merits and not be affected by the s 96 requirement that the modified development be substantially the same as what was originally approved (at [19]). The Commissioner concluded that "based on the evidence of both experts that the removal of the awnings as proposed in the amended plans is necessary to ensure that the development is substantially the same as that originally approved" (at [14] of the Commissioner's reasons). She did not grant consent in respect of that element as erected. When the hearing resumed before the Commissioner on 29 January 2013, there was debate between the Commissioner and Mr Ross about the deletion of the awnings. Mr Ross, not unreasonably, understood that rather than remove the concrete awnings from the application, he would be required to demolish the concrete awnings as a condition of any modified consent (at [23]). He therefore discontinued the s 96 proceedings.
36. Earlier, in mid-January 2013, Ms Edilbi, also known as Ms Chami, whom Mr Ross has described as his partner, lodged a building certificate application with the council in Mr Ross' name. The building certificate application related to the awnings, a rear concrete balcony slab and spa.
37. On 1 February 2013 Mr Ross sought to set aside or amend orders to which he had consented on 13 August 2012. The council sought an order that it be permitted to enter and inspect the premises. On 20 February 2013 Pepper J refused Mr Ross' application and granted that of the council (Lane Cove Council v Ross (No 5) [2013] NSWLEC 17). Mr Ross did not seek leave to appeal from those orders.
38. Mr Ross was ordered to pay the council's costs of his notice of motion.
39. On 12 March 2013 the council refused the application lodged by Ms Chami in Mr Ross' name for a building certificate application under s 149D on the basis that insufficient information had been provided.
40. On 27 February 2013 the Class 4 proceeding was again listed for directions. The matter was relisted for further directions on 20 March 2013 and Mr Ross was ordered to file and serve his evidence in relation to the council's application for orders for demolition of the non-complying works. He did not appear on 20 March 2013. A solicitor, Ms Benn, appeared on that day and said that Ms Edilbi was the new owner and builder of the development. Ms Benn did not appear for Mr Ross. She sought an adjournment so that Ms Edilbi could instruct her on any application to join the proceedings as a party (Lane Cove Council v Ross (No 6) [2013] NSWLEC 74 at [3]-[5]). The matter was fixed for hearing for three days from 27 May 2013 and Mr Ross was ordered to file and serve his evidence and written submissions by 3 May 2013. He did not comply with that order.
41. On 1 May 2013 Ms Edilbi commenced a Class 1 appeal against the refusal of the building certificate.
42. On 3 May 2013 a transfer of the land from Mr Ross to Ms Chami (Edilbi) was registered.
43. Mr Ross appeared at the hearing before Pepper J on 27 to 29 May 2013. He applied to reopen his evidence on the previous part of the application and to tender the transcript of the proceedings before Commissioner Dixon in relation to the council's refusal to grant a s 96 modification. That application was rejected (Lane Cove Council v Ross (No 10) [2013] NSWLEC 79). He made other applications including that Pepper J should recuse herself. He applied to rely upon evidence that had been served late. Both applications were unsuccessful (Lane Cove Council v Ross (No 8) [2013] NSWLEC 77; Lane Cove Council v Ross (No 9) [2013] NSWLEC 78; and Lane Cove Council v Ross (No 11) [2013] NSWLEC 81). Pepper J also refused Mr Ross' application for adjournment (Lane Cove Council v Ross (No 12) [2013] NSWLEC 82; and Lane Cove Council v Ross (No 13) [2013] NSWLEC 80). After these applications were unsuccessful Mr Ross withdrew from the hearing.
44. Pepper J considered Mr Ross' contentions that he had acted in accordance with consents said to have been given by the Private Certifying Authority and by council personnel to changes made from the approved plans; that the council had delayed for three years in commencing proceedings; that he had been initially advised by the council that it would be necessary for him to lodge an application for a building certificate, but that in May 2012 the council instead requested that he lodge a s 96 modification application; that he did so; that notwithstanding the council's advice the council opposed the s 96 modification application on the basis that it involved a substantial departure from the approved development; that he withdrew that application because although it was his intention that he would remove the awnings from his s 96 application so as to lodge a separate building certificate application for the awnings, the council continued to argue before the Commissioner that the development as proposed was not substantially the same as that for which consent had been given; that the Commissioner told him he would have to remove the awnings; that that would have had serious structural implications to the rest of the dwelling and accordingly he discontinued his s 96 application; that he transferred the property to Ms Chami; that she applied for a building certificate application; that that application was refused on 12 March 2013; that on 1 May 2013 she appealed the refusal to the Land and Environment Court; and that the first return date for that appeal was on 29 May 2013. Pepper J recorded Mr Ross' submission that until the building certificate appeal was determined the Court would not have had the opportunity of assessing the merit of the concrete awnings.
45. These submissions were unsuccessful. On 7 June 2013, Pepper J ordered that Mr Ross demolish, or cause to be demolished, the unauthorised works to the house in Bayview Street, Northwood and that he rebuild or reinstate the property in accordance with the terms of the development consent. Final orders were made on 14 June 2013 (Lane Cove Council v Ross (No 14) [2013] NSWLEC 87; Ross v Lane Cove Council [2014] NSWCA 50 at [12]).
46. On 2 July 2013 Ms Chami discontinued her appeal from the refusal of the application for a building certificate.
47. On 4 July 2013 Mr Ross filed a notice of intention to appeal from the orders of Pepper J of 7 June 2013. The council adduced evidence that the notice of intention to appeal was not served. A notice of appeal was belatedly filed on 4 October 2013 (Ross v Lane Cove Council [2014] NSWCA 50 at [15]).
48. On 23 September 2013 the council filed a notice of motion seeking to charge Mr Ross with contempt for failing to carry out works required by the orders made on 7 June 2013. On 29 November 2013 the contempt proceedings were adjourned on the basis of undertakings given by Mr Ross diligently to prosecute his appeal to the Court of Appeal and not to conduct work on the property until released from the undertaking.
49. On 24 February 2014 Ms Chami lodged a second application for a building certificate with the council.
50. On 13 March 2014 the Court of Appeal set aside the orders of Pepper J of 14 June 2013 on the sole ground that Ms Chami was a necessary party to the proceedings in the Land and Environment Court and even though she was aware of the proceedings and had not applied to be joined as a party to them, the council ought to have joined her as a party on becoming aware that she had become the owner of the property. Leeming JA, with whose reasons Meagher JA and Tobias AJA agreed, said: "[84] The costs discretion at first instance will need to be re-exercised. It is conceivable that what happens in the future may produce a different outcome as to costs. However, to be clear, nothing in these reasons would necessarily prevent a further exercise of discretion that Mr Ross pay the entirety of Council's costs at first instance. This Court does not enjoy the advantages of the court below in assessing Mr Ross' conduct in these proceedings, but prima facie it would appear that he has committed deliberate and sustained breaches of the obligation he is subject to in s 56(3) of the Civil Procedure Act to participate in the processes of the court and comply with its orders to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
51. Leeming JA also observed that most of the grounds of appeal were abandoned shortly before the hearing (at [83]). In so far as Mr Ross may have appealed from Pepper J's rejection of his contentions as set out at [43] above, any such appeal must have been abandoned.
52. In his Amended Summary of Argument Mr Ross argued that the primary judge failed to consider: "The fact that the [council] knowingly misled the court as to the circumstances of the status of merit assessment of the awnings in having the Class 4 application for demolition of the awnings set down for final hearing."
53. But Mr Ross had the opportunity, and apparently took the opportunity, to argue that the reason for his having discontinued his s 96 appeal was because the Commissioner misunderstood that he sought only to remove the awnings from the scope of the s 96 application so that they could be the subject of a separate application for a building certificate under s 149D. Mr Ross did not point to any particular facts by which he alleged that the council had knowingly misled the Court. That is to say, he did not point to any particular statements made by the council that might have been misleading. He was present and had the opportunity to put his submissions. He took that opportunity.
54. Mr Ross relies upon Biscoe J's judgment of 17 July 2013 (Ross v Lane Cove Council [2013] NSWLEC 109) and observations of Pepper J on the hearing of a costs argument on 7 September 2016.
55. On 17 July 2013, Biscoe J dismissed the council's application for an order for costs in respect of the discontinued planning appeal brought by Mr Ross against the refusal of a s 96 application. In relation to Class 1 appeals, the prima facie position is that the Court makes no order for costs (Land and Environment Court Rules 2007 (NSW), r 3.7(2)). The Land and Environment Court may make a costs order if it considers that it is fair and reasonable in the circumstances to do so. Such circumstances include where a party has acted unreasonably in circumstances leading up to the commencement of the proceedings or in the conduct of proceedings (r 3.7(3)(c) and (d)). The council contended that Mr Ross had acted unreasonably in the conduct of his Class 1 appeal against the refusal of his s 96 modification application. Biscoe J rejected that application. In doing so, his Honour noted that in May 2012 the council had urged Mr Ross to proceed by way of a s 96 application but, had then contended that the proposed development the subject of the modification application would not be substantially the same as that which the council had approved (at [12] and [14]). Biscoe J observed that the Commissioner and Mr Ross may have been at cross-purposes as to whether the concrete awnings had been removed from the s 96 application, or whether the Commissioner considered that as part of the s 96 application Mr Ross would have to demolish the concrete awnings as a condition of any modified consent (at [23]).
56. On 29 May 2014 the council refused Ms Chami's second application for a building certificate.
57. On 10 June 2014 Ms Chami commenced a Class 1 appeal against the refusal of that application. In the meantime the council had brought a Class 4 proceeding against Ms Chami seeking to restrain her from carrying out works on the land and from residing on the property until an occupation certificate was issued.
58. On 21 July 2014 both Class 4 proceedings were adjourned until Ms Chami's appeal against the refusal of the building certificate was determined in a second Class 1 proceeding. The hearing of that appeal commenced before Senior Commissioner Moore on 14 August 2014. With leave of the Court, Mr Ross appeared as agent for Ms Chami on the appeal. The appeal lasted 12 days between August and November 2014. Three interim judgments were given on the building certificate appeal, namely judgments on 23 January 2015 (Chami v Lane Cove Council [2015] NSWLEC 1003; Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 (15 June 2015); and Chami v Lane Cove Council (No 3) [2015] NSWLEC 144 (3 September 2015)). A final judgment was given on 11 November 2015 upholding Ms Chami's appeal. No orders for costs were made in respect of the Class 1 appeal, except in respect of an application made by Ms Chami to reopen the application. That application had been dealt with by the judgment of Senior Commissioner Moore on 15 June 2015.
59. On 3 May 2016 the council filed a notice of motion seeking leave to discontinue the balance of the Class 4 proceedings relating to Mr Ross and Ms Chami and seeking costs in both matters.
60. As noted above, the orders of Pepper J of 14 June 2013 requiring demolition of unauthorised works and certain rebuilding work had been stayed pending the determination of the appeal to the Court of Appeal. Those orders were set aside by the Court of Appeal.
61. The present application for leave to appeal concerns only Mr Ross and not Ms Chami. Mr Ross did not oppose leave being given to the council to discontinue the proceedings. He opposed the council's application for costs. Submissions on costs were heard over three days between 7 and 9 September 2016 before Pepper J. Mr Ross also sought his costs of the proceedings (Transcript 9 September 2016, p 1). By the end of the third day submissions had not been completed in respect of Mr Ross' proceeding and the costs applications in relation to the Chami proceedings had not started (Transcript 9 September 2016, p 87). The applications were adjourned to a date to be fixed. The matter was listed for certain dates in February 2017. On 13 December 2016 the matter was relisted because Pepper J had become unavailable for the whole of 2017. This Court was informed that Pepper J took a commission to head an inquiry in the Northern Territory for 12 months.
62. On 13 December 2016 Mr Ross agreed that the matter could proceed based on the evidence that had been filed to that date and the transcript (Transcript 13 December 2016, p 7.45). Pepper J ordered that the hearing of the Ross and Chami matters be resumed part-heard before a new judge on 13 February 2017 on the basis that the parties consented to the matter being heard on the basis of evidence that had been filed to that date and on the existing transcripts. Her Honour ordered that the Chami matter be heard separately from, but after, Mr Ross' matter and not necessarily by the same judge allocated to hear Mr Ross' matter for one day in February 2017 (Transcript 13 December 2016, p 9). Mr Ross opposed the separation of his proceeding and Ms Chami's proceeding, but did not oppose the order that the proceedings be adjourned part-heard before a new judge on the basis of the evidence filed to that date and the transcripts of argument (Transcript 13 December 2016, p 9).
63. The proceedings resumed before Pain J on 13 February 2017. Both proceedings were concluded in that day.
64. In his Amended Summary of Argument, Mr Ross contended that he was denied a proper hearing because the substance of the hearing was conducted by a judge (Pepper J) who was not the judge who delivered the reasons for judgment (Pain J). As with the bulk of the initial submissions for both parties, that submission was not supported by any reference to transcript or evidence. It is clear that Mr Ross consented to Pain J's hearing the costs application on the basis that it was to be treated as part-heard. He did not submit to either Pepper J or Pain J that the council's costs application, or his oral application for costs, should be started afresh before Pain J. In these circumstances, Mr Ross does not have seriously arguable grounds to contend that there was a denial of procedural fairness in the hearing of the applications having commenced before one judge and having been concluded before another.
65. Mr Ross relied upon observations made by Pepper J during the course of argument on 7 September 2016 (Transcript pp 25-27) that she had not been aware of all the facts relevant to the filing of the building certificate application, and to her Honour's observation (p 83) that she found it disquieting that the council had pursued demolition orders when there had been substantial agreement in relation to the regularisation of the development (Transcript of 9 September 2016 p 83).
66. That view was not shared by the primary judge. The primary judge held that the Class 4 proceedings had been properly commenced (at [80]). As indicated above, I do not think that Mr Ross' contention to the contrary is seriously arguable.
67. The primary judge declined to find that the Class 4 proceedings should have been discontinued earlier (at [110]). Her Honour noted that the four judgments delivered by Moore SC/AJ in the Class 1 proceedings identified the complexity of the merit assessment undertaken in the building certificate appeal. That is plainly correct. The primary judge noted (at [32]) that Moore SC (as his Honour then was) provided in schedule 1 a list of works that were required to be carried out before a building certificate could be issued and that four inspections of the property by the Court were required before Moore AJ was satisfied that the conditions had been met and a building certificate could be issued. Her Honour also observed that the Class 1 proceedings and the Class 4 proceedings served different purposes.
68. To entertain Mr Ross' appeal would require a detailed analysis of the measure of his success in the Class 1 proceedings to determine the reasonableness, or, as he would put it, the unreasonableness, of the council's seeking to proceed with the Class 4 proceedings from February 2013. I agree with Macfarlan JA that it would be inappropriate for this Court to have to undertake such a detailed factual examination. The requirement of leave is a filter whose purpose is to avoid the need for expenditure of substantial costs on arguments about costs.
69. Mr Ross submitted that the primary judge's central finding was that there was unreasonable delay by Mr Ross and Ms Chami in pursuing a Class 1 appeal for the building certificate application following the discontinuance of the s 96 application appeal (at [102]). Ms Chami had lodged a building certificate application in Mr Ross' name in mid-January 2013. The application was refused on 12 March 2013. A Class 1 appeal against the refusal of the building certificate was filed on 1 May 2013. It was discontinued on 2 July 2013 after the Land and Environment Court had made orders for demolition of unauthorised works.
70. It is arguable, but in my view not more than arguable, that there was no relevant delay. The council submitted that if there had been proper prosecution of the building certificate application between January and May 2013 the three-day hearing on relief set for late May 2013 would not have been needed. It also relied upon the findings of Pepper J in both Ross (No 6) and Ross (No 14) to the effect that Mr Ross had engaged in a calculated course of delay and obstruction.
71. The council also relies upon Pepper J's finding in Ross (No 14) at [81] that Mr Ross or Ms Chami had had ample opportunity to appeal against the refusal to issue the building certificate and had not proceeded in a timely manner. In refusing an adjournment application on 22 May 2013 (Ross (No 6)) Pepper J observed that Mr Ross had not explained the delay in applying for a building certificate. Her Honour noted that Mr Ross could at any time have lodged an application for a building certificate and that the appeal against the council's refusal to issue the building certificate had only been filed recently, notwithstanding that the refusal occurred in March 2013 (at [24]). In refusing Mr Ross' application for an adjournment Pepper J noted that whatever arguments Mr Ross might seek to make in an appeal pursuant to s 149F could be made during the hearing of the Class 4 proceedings in opposition to a demolition and reinstatement order. After Mr Ross' successive interlocutory applications in May 2013 were refused, he withdrew from the hearing before Pepper J.
72. An appeal on the costs issue would require a detailed re-evaluation of those matters, including matters that had been decided in May 2013 against which there was either no appeal or any appeal had been abandoned. That course should not be permitted on an argument concerning costs.
73. I do not accept that the primary judge's finding at [102] that there was unreasonable delay in pursuing a Class 1 appeal for the building certificate application was determinative of the primary judge's exercise of her discretion in ordering costs. It was a relevant consideration amongst others. In substance, Mr Ross seeks to challenge not only the findings of the primary judge and the earlier findings of Pepper J in Ross (No 6) and in other interim judgments given in May 2013 leading up to Pepper J's judgment of 7 June 2013 in Ross (No 14). The comments made by Pepper J in argument on 7 September 2016 to which Mr Ross referred required the primary judge to give careful consideration to the parties' conduct in relation to the s 96 application and its discontinuance, and the building certificate application. The primary judge did so. Mr Ross has not demonstrated error going beyond that which is arguable.
74. For these reasons I would also refuse leave to appeal. I agree with the orders proposed by Macfarlan JA.