Toplace Pty Ltd v City of Parramatta Council [2021] NSWLEC 1323 | Case summary

Land and Environment Court (NSW)|2021-03-10

Judgment

This Notice of Motion was listed before me on 10 March 2021 on the application of the Applicant who is seeking its costs in the proceedings under rule 3.7 of the Land and Environment Court Rules 2007 (the Court Rules).
The Applicant contends that it is fair and reasonable that it be awarded costs on the basis that: 1. the disputed conditions had no nexus to the modification application; 2. Council had a number of opportunities to resolve the dispute prior to proceedings being commenced; and 3. the applicant incurred substantial costs as result of commencing the proceedings.
In support of its application for costs, the applicant read the affidavit of David Tyrell sworn on 11 November 2020.
The Council opposes the order sought in the Applicant's Notice of Motion. The Council submits that the Applicant has not discharged its onus of demonstrating that a costs order should be made on a 'fair and reasonable' basis pursuant to rule 3.7(2) of the Court Rules because it has not shown that the Council's conduct in these proceedings falls within the scope of any of the circumstances set out in rule 3.7(3).

Background

On 12 March 2020, the Applicant filed a Class 1 Application (proceedings number 2020/00079742), appealing Council's refusal of modification application DA/252/2019/A. Under that application, the Applicant sought consent to subdivide the site into 5 stratum allotments and delete condition 14 of development consent DA852/2013/A.
On 25 May 2020, the Applicant's solicitor confirmed that the Applicant had lodged an application through the New South Wales Planning Portal on 13 May 2020 (Portal Application Number (PAN) PAN-14425). That application sought approval for the modification application required by condition 14 in DA852/2013/A (the PAN Application).
The conciliation conference commenced on 4 June 2020 and was adjourned twice to 23 July 2020 to permit the determination of the PAN Application.
On 17 June 2020, Transport for NSW (TfNSW) wrote to the Council in response to Council's request that it review and comment on the Applicant's proposed modification of its development consent and suggested imposing conditions 10A and 56(d).
Conditions 10A and 56(d) are as follows: "10A. Construction vehicles shall not stop or park on Macquarie Street (between Harris Street and Charles Street) or Hassall Street (between Harris Street and Charles Street) at any time without prior approval of Transport for NSW. Reason: Major construction to deliver the Parramatta Light Rail (PLR) program has begun in 2020 with the network expected to commence services in 2023. … 56…(d) Where applicable, the plan must address the following: (i) Evidence of RTA concurrence where construction access is provided directly or within 20 m of an Arterial Road, (ii) A schedule of site inductions shall be held on regular occasions and as determined necessary to ensure all new employees are aware of the construction management obligations. (iii) Minimising construction related traffic movements during school peak periods, The Construction and Traffic Management Plan shall be prepared by a suitably qualified and experienced traffic consultant and be certified by this person as being in accordance with the requirements of the abovementioned documents and the requirements of this condition. Prior to any works recommencing on site following either the Stop work Order being amended or revoked, the previously approved Construction Pedestrian and Traffic Management Plan (CPTMP) shall be updated, in consultation with the Sydney Coordination Office (SCO) within TfNSW, to incorporate the works associated with modification DA/852/2013/B. The applicant shall submit a copy of the final plan to SCO within TfNSW for endorsement. Reason: To ensure that appropriate measures have been considered during all phases of the construction process in a manner that maintains the environmental amenity and ensures the ongoing safety and protection of people. Reason: To ensure that the combined construction activities of the development and Parramatta Light Rail can be appropriately managed to minimise disruption.
On 23 July 2020 the PAN Application was approved and the Council issued a Notice of Determination.
By letter on 5 August 2020 the Applicant foreshadowed its disagreement to the imposition of conditions 10A and 56(d) of DA852/2013/A contending that such conditions were ultra vires. By letter of the same date, the Council suggested that the Applicant could make an application for the Council to review those conditions under s 8.3(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) or appeal them in separate proceedings.
On 27 August 2020, this appeal was filed challenging conditions 10A and 56(d). The Court notes that the Applicant did not make an application for review of the Council's decision to impose conditions 10A and 56(d) or apply to modify the consent by seeking the removal of conditions 10A and 56(d).
On 24 September 2020 the matter was listed for conciliation on 4 November 2020.
On 28 September 2020 the Council wrote to TfNSW inviting TfNSW to consider joinder as conditions 10A and 56(d) were imposed by Council at TfNSW's suggestion and those conditions were now the subject of this appeal.
On 15 October 2020 TfNSW informed the Council that it intended to seek to join the proceedings. That intention was communicated by Council to the Applicant by email on the same day.
On 2 November 2020 the Council received a letter from TfNSW stating that: "Transport no longer presses the conditions which are the subject of the appeal. It has no objection to Council entering into an agreement under s 34 of the Land and Environment Court Act 1979 to the effect that condition 10A and the relevant part of condition 56(d) are not imposed on the approval of the modification application."
By email on 2 November 2020 the Council sent an email to the Applicant, providing a copy of the TfNSW letter and stating that: "TfNSW does not intend to join the proceedings or attend the conciliation on Wednesday. The Council has instructed us to enter into a s34 Agreement in those terms. If so, and if that Agreement could be executed before the conciliation on Wednesday we are also instructed to consent to any application to vacate the conciliation altogether."
On 20 November 2020 the parties resolved the dispute between them and entered into an agreement under s 34(3) of the Court Act. That agreement is taken to be a decision of the court and was delivered on 8 December 2020.
It is important at this juncture to note that a decision of the Court made as a result of agreement between the parties under s 34 of the Court Act does not involve a merits review of the Applicant's appeal. The agreement was made on the basis that it is a decision that the Court could make in the proper exercise of its functions: (s 34(3) Court Act).

The Court's power to order costs

The Applicant bears the onus of convincing the court that an order for costs in its favour is fair and reasonable: Hunter v Central Coast Council [2017] NSWLEC 154 at [96]; Coolah Holdings Pty Ltd v Eurobodalla Shire Council (No 2) [2012] NSWLEC 84 at [43].
The Court's power to order costs is derived from s 98(1) of the Civil Procedure Act 2005 and subject to r 3.7(2) of the Court Rules which states that: "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." Rule 3.7(3) then goes on to provide a non-exhaustive list of circumstances in which an order for costs may be fair and reasonable.
Although the six indicia contained within in r 3.7(3) provide some assistance when evaluating whether an order for costs is fair and reasonable, the power exercised by the Court is not confined to these matters the (Marks v Perham (No 2) [2020] NSWLEC 84 (Marks)). In Marks, the Court referred to the comments of Biscoe J in Arden Anglican School v Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103 (Arden) at [9]: "In the context of the presumptive rule that there will be no order as to costs in planning appeals, the power to make a costs order is in the broadest of terms, that is, what is "fair and reasonable in the circumstances". All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the Court, they are of sufficient weight to overcome the presumptive rule. Indicative guidelines for the exercise of the discretion are useful in promoting consistent decisions, but are not entitled to presumptive, let alone determinative, weight."
The Court must examine the history of the consent the subject of the appeal, and the proceedings to determine fairness and reasonableness: Moss Vale Projects Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 180 at [25]. However, the Court must not engage in a hypothetical trial of the substantive case when doing so: Re Minister for Immigration & Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 at [7].
In Community Association DP270253 v Woollahra Municipal Council (2015) 207 LGERA 268; [2015] NSWCA 80, Barrett JA, delivering the judgment of the Court of Appeal, distinguished (at [53]) between the unreasonableness of conduct, related the particular proceedings, with which r 3.7 is concerned, from "unreasonableness" affecting the decision challenged in the proceedings. His Honour said (at [55]). "The Association chose to bring Class 1 proceedings and thereby to enter an arena to which r 3.7 applied. That being so, it could not (and did not seek to) argue simply that costs should follow the event. It was required to establish that some aspect of the conduct of the Council as a litigant in the Class 1 proceedings made it fair and reasonable that the judge should cause the prima facie position prescribed by r 3.7(2) to be replaced by a situation in which the Council was required to pay the Association's costs. The Association has, in my opinion, failed to establish this...."

Findings

In this case, the Applicant had several clear options available to it to challenge the imposition of conditions 10A and 56(d) upon development consent DA852/2013/B other than through the commencement of these Class 1 proceedings.
As conditions 10A and 56(d) were recommended by TfNSW, the Council invited TfNSW to join the proceedings and attend the conciliation conference. At all times throughout the proceedings, the Council has kept the Applicant informed of TfNSW's attitude towards joinder. Most importantly, and as soon as TfNSW indicated on 2 November 2020 that it no longer pressed conditions 10A and 56(d), the Council informed the Applicant and thereafter entered into a s 34 agreement.
The Council exercised its discretion to impose conditions 10A and 56(d) pursuant to the recommendation by TfNSW. Even if the Council's decision to impose those conditions was erroneous, the Applicant has not provided evidence to demonstrate that the Council has conducted itself in dereliction of its duty or not in good faith.
The Respondent's letter of 5 August 2020, referred to at [9] of Mr Tyrell's affidavit does not constitute an invitation to litigation by the Council. That letter invited the Applicant to consider alternative courses of action with regards to its concerns about conditions 10A and 56(d), one of those courses of action being litigation.
The Applicant's decision to commence these proceedings means that it elected to enter the jurisdiction where r 3.7 of the Court Act applies.
As such I do not consider it reasonable or just for the Court to make a costs order against the Council in all the circumstances.

Orders

The Court orders that: 1. Motion dismissed. ………………… R Froh Registrar of the Court

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: 07 June 2021

(2008) 158 LGERA 224

(2015) 207 LGERA 268

Toplace Pty Ltd v City of Parramatta Council

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