(c) remove the requirement to provide a fire evacuation plan.
41 I asked Mr Walton to confirm that there were no other modifications to the consent granted by the Court that he wanted to make in the s 96 application. Mr Walton read aloud the conditions of consent and commented on them as he went. At the conclusion of this process, Mr Walton confirmed that there were no other modifications to the consent granted by the Court that he was seeking in the s 96 application.
42 Having settled upon what modifications were the subject of the s 96 application, Mr Walton tendered the evidence upon which he wished to rely in support of the s 96 application. He tendered two statements written by himself: first, a statement dated 4 July 2006 (exhibit A) and secondly, a statement dated 14 May 2006 (exhibit B). The latter document, Mr Walton said, he had wanted to tender before Commissioner Moore at the continuation of the hearing on 19 April 2006 but the tender had been rejected.
43 Mr Walton stated he did not wish to tender any other documents than those two statements. He also stated that he did not wish to call any oral evidence.
44 Mr Kelso tendered Blacktown Local Environmental Plan 1988 (exhibit 1) and Blacktown Development Control Plan 1992 (exhibit 2). Mr Kelso indicated that he did not wish to cross-examine Mr Walton on his two statements.
The applicant's submissions
45 Mr Walton then made submissions. These submissions, to a large extent, involved reading his two statements (exhibits A and B) in respect of each of the three modifications that are the subject of the s 96 application. In essence, Mr Walton's submissions are as follows.
46 His first submission related to the reduction in the specified number of off-street car parking spaces. Physically, there is a paved area in the front yard of the guesthouse capable of parking five cars. Mr Walton has no intention to reduce that area. The condition imposed by the Court requires the marking and provision of three spaces in that area. Mr Walton has no issue but that such marking is reasonably practicable and able to be readily achieved. Mr Walton takes no objection on the grounds of cost. Mr Walton's objection is ideological. He objects to being required by the condition to do something which he says is not expressly stated in "the rules" as needing to be done. The rules to which Mr Walton referred include Blacktown Local Environmental Plan 1988 and Blacktown Development Control Plan 1992.
47 Blacktown Local Environmental Plan 1988 specifies, in Schedule 7 dealing with complying development, in item 2 relating to the development of bed and breakfast establishments, that the parking required is:
"Provision of one off-street parking space per guest bedroom, for each additional guest bedroom exceeding 1."
48 Applying this formula to Mr and Mrs Walton's guesthouse, a total of three car parking spaces would be required.
49 Blacktown Development Control Plan 1992 provides in Pt A, s 5 car parking, p A-26, note to table 5.1, that for activities not specifically mentioned, car parking requirements will be determined on the merits of the application. Bed and breakfast establishments are not mentioned in the table.
50 Mr Walton submits that the condition which requires three off-street car parking spaces cannot be founded in Blacktown Development Control Plan because bed and breakfast establishments are not specified and no requirements for car parking are stated for bed and breakfast establishments. Mr Walton does not accept the note which says that car parking for activities not specified can be determined on the merits. In his view, only if there is a specification is there any entitlement to impose a requirement for car parking spaces.
51 In relation to Blacktown Local Environmental Plan, Mr Walton accepts that Sch 7 does specify, when applied to Mr and Mr Walton's guesthouse, three car parking spaces. However, Mr Walton says that this is in total and not only for guests. However, Mr Walton relies on a practice, apparently communicated to him, of the Council to reduce the number of car parking spaces for developments in close proximity to public transport. Mr Walton submits that their guesthouse is in close proximity to Blacktown railway station. Accordingly, the number of car parking spaces should be reduced from three to two. Mr Walton submits one of those two should be for permanent residents, leaving the other for guests of the guesthouse.
52 Mr Walton's second submission related to providing signage for the car parking spaces. Mr Walton accepts that signage is reasonably practicable and can readily be provided at a modest cost. Again, however, Mr Walton's objection is ideological. He submits that there is no requirement to provide signage in any of "the rules", including Blacktown Local Environmental Plan or Blacktown Development Control Plan. He submits it is not necessary because guests and he and his wife will know where to park without signage. Furthermore, guests and he and his wife should have the freedom to park where they wish without being controlled by signage.
53 Mr Walton's third submission related to the provision of the fire evacuation plan. Mr Walton accepts that a fire evacuation plan could be provided on the rear of each of the bedroom doors and could be done with modest cost. Again, Mr Walton's objection is ideological. He says "the rules" do not require the provision of fire evacuation plans for a building of the nature of their bed and breakfast establishment. The rules to which Mr Walton refers in relation to this issue are said to be contained in the Building Code of Australia.
54 The Building Code of Australia provides for classification of various buildings. Mr and Mrs Walton's guesthouse would fall within class 1b. For a class 1b building, the Building Code of Australia does not specify expressly that a fire evacuation plan needs to be provided on the rear of bedroom doors. For completeness, neither Blacktown Local Environmental Plan nor Blacktown Development Control Plan state expressly that a fire evacuation plan is required. The Act and the Regulations also do not so specify. Commissioner Moore so held in para 16 of his second decision: Walton v Blacktown City Council (No 2) [2006] NSWLEC 345 (19 April 2006).
55 Mr Walton submits that because none of the rules expressly state that a fire evacuation plan must be provided, there is no justification to so require the provision of a fire evacuation plan.
56 For these reasons, Mr and Mrs Walton submit that the conditions that are the subject of the s 96 modification should be modified.
The Council's submissions
57 Mr Kelso submitted that the s 96 application should be refused for two reasons.
58 First, as a matter of discretion, the Court would refuse the application because there has been no change in circumstances from the time of the Court's decision on 19 April 2006 to date which would justify modifying the consent. Each of Mr and Mr Walton's proposed modifications were either argued or able to be argued at the hearings of the s 97 appeal before Commissioner Moore. Mr Kelso cited the cases of Progress and Securities Pty Limited v North Sydney Municipal Council (1988) 66 LGRA 236 and International Trucks Australia Pty Limited v Blacktown City Council [1997] NSWLEC 56 (16 March 1999) at [15] - [18].
59 Secondly, Mr Kelso submitted the Court would refuse the s 96 application on the merits for the same reasons that Commissioner Moore gave in his second decision.
60 Mr Walton made submissions in reply, essentially reiterating the points he had made in-chief.
The Court's determination
61 I have determined that the s 96 application should be refused, both in the exercise of my discretion and on the merits.
62 The chronology I have given above well illustrates that the matters that are now challenged by Mr and Mrs Walton in their s 96 application have been litigated before. Mr and Mrs Walton have had ample opportunity to put their arguments on these issues and have availed themselves of that opportunity. Each of their arguments that has been put in relation to the conditions sought to be modified on this s 96 application has been dealt with before by the Court in the s 97 appeal.
63 Nothing has changed after Commissioner Moore's decision of 19 April 2006. The arguments put by Mr Walton, summarised in his statements that became exhibits A and B, do not refer to any circumstance that has occurred subsequent to Commissioner Moore's decision.
64 An application under s 96 of the EPA Act is not the appropriate vehicle to seek a re-hearing on the merits of a decision of the Court on a s 97 appeal, unless there has been some material change in circumstance or something has been revealed which was not known at the time of the hearing of the s 97 appeal: see generally Progress and Securities v North Sydney Municipal Council (1988) 66 LGRA 236 at 243, 245 and 246.
65 I would also reject the s 96 application on the merits.
66 In relation to the number of car parking spaces, the marking and provision of two spaces for guests and one for the permanent residents, in an area capable of accommodating five spaces, is in my opinion a reasonable requirement. The schedule to which Mr Walton refers in Blacktown Local Environmental Plan would require three car parking spaces. Contrary to Mr Walton's submission, this must be interpreted as three car parking spaces for guests. That is plain from the fact that in the formula the number of car parking spaces is proportionate to the number of guest bedrooms. A reduction from three car parking spaces to two car parking spaces for guests, as would be required by the condition imposed by the Court, does taken into account the factor of the close proximity of the guesthouse to public transport. The marking and provision of a car parking space for the permanent residents is also a reasonable requirement. I, therefore, decline to decrease the number of car parking spaces that were imposed by condition 6 of the consent.
67 Having marked and provided the car parking spaces, it is in my opinion only reasonable to require signage indicating the existence and the intended purpose of those spaces. The signs can be discreet and tasteful. They need not be ugly or detract from the amenity of the front yard of Mr and Mrs Walton's guesthouse. The fact that signage is not specified expressly in either the Blacktown Local Environmental Plan or Blacktown Development Control Plan is irrelevant. Those documents do not exhaust a consent authority's power to impose conditions on a development consent. Sections 80 and 80A of the EPA Act permit a consent authority to impose conditions in relation to planning matters notwithstanding that those matters are not expressly required to be included in conditions by any relevant environmental planning instrument or development control plan. I decline to delete from condition 6 of the consent the requirement for signage.
68 In relation to the provision of the fire evacuation plan, again, the fact that the Building Code of Australia does not expressly require the provision of such plans for a class 1b building does not preclude a consent authority from imposing such requirements exercising the powers under ss 80 and 80A of the Act. There are sound public policy reasons for requesting the provision of a fire evacuation plan in a guesthouse. These were summarised by Commissioner Moore in para 16 of his second judgment. I agree. I decline to delete condition 5 of the consent.
69 For these reasons, the s 96 application should be refused.
Costs
70 The Council made application for costs in the event that the Court refused the s 96 application. Mr and Mrs Walton opposed the Council's application for costs. Section 69(2) of the Land and Environment Court Act provides that, subject to the Rules, costs are in the discretion of the Court and the Court may determine by whom and to what extent costs are to be paid.
71 Part 16 r 4 of the Land and Environment Court Rules 1996 applies to proceedings under, inter alia, s 96 of the EPA Act: see Pt 16 r 4(1). Pt 16 r 4(2) provides:
"No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of a particular case, fair and reasonable."
72 The approach embodied in Pt 16 r 4(2) of the Rules is that an order for costs will not be made in class 1 proceedings unless the Court considers the making of a costs order is, in the circumstances of a particular case, fair and reasonable: see Statewide Developments Pty Limited v Minister for Infrastructure and Planning (2005) 142 LGERA 154 at 156 [4], Aldi Food Pty Limited v Holroyd City Council (2005) 142 LGERA 141 at 144 [5] and Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [12] - [14].
73 An examination of the cases reveals a variety of circumstances where courts have considered that it would be fair and reasonable to make an order for costs. Amongst these circumstances are where the defence of the proceedings has been commenced or continued in circumstances where the applicant or respondent respectively, properly advised, should have known that it has no chance or very poor prospects of success: see Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [15(f)] and cases therein cited.
74 Mr Kelso submits that Mr and Mrs Walton's s 96 application was doomed to failure. It fell within the category of cases where it is fair and reasonable for the Court to make an order for costs. Furthermore, Mr Kelso submits that the Council put Mr and Mrs Walton on notice at the earliest available opportunity that their case was doomed to failure and that costs would be sought against them.
75 Mr Kelso wrote to Mr and Mrs Walton on 23 May 2006 stating that the s 96 application was doomed to failure. The reason stated was that there had been no change in circumstances since the conditions of consent were imposed by the Court and that the application was no more than an attempt to appeal against the conditions. Mr Kelso invited Mr and Mrs Walton to withdraw their application at or before the initial return of the s 96 application before the Court on 28 June 2006. If Mr and Mrs Walton failed to withdraw their application, and the Court refused their application, the Council stated it would seek its costs of the application.
76 On 23 May 2006, Mr Walton replied to Mr Kelso's letter of 23 May 2006. Amongst the other matters he raised, Mr Walton said:
"I also don't understand the words:
'there has been no change in circumstances since then'
This appears to be correct, but I don't understand why you said this."
77 On 26 May 2006, Mr Kelso again wrote to Mr and Mrs Walton pointing out that the reason why the Council said the application was doomed to failure was that there had been no change in circumstances since the Court imposed the conditions that were now the subject of the s 96 application. Mr Kelso said:
"2. What you have sought to do is to apply to modify some of the conditions imposed by the Court (plus 2 unsupportable 'modifications' as mentioned in our last letter). The Court has consistently said that, before it will modify a condition which it has imposed, the applicant must show that something has changed since the condition was imposed to justify the Court in modifying it. This is what we meant by the need to show a 'change in circumstances', the fact is that nothing relevant to the conditions in question has happened since those conditions were imposed on 21 April last."
78 Mr Kelso again gave notice that the Council would be seeking its costs if Mr and Mrs Walton did not withdraw their application.
79 On 2 June 2006, Mr Walton replied to Mr Kelso's letter. He stated that Mr and Mrs Walton would be pursuing their current application.
80 On 14 June 2006, Mr Kelso responded, once again giving notice that Mr and Mrs Walton's decision to proceed with the application is at their own risk in relation to costs if they are unsuccessful.
81 I have determined that in the particular circumstances of this case it would not be both fair and reasonable to award costs of this s 96 application. The s 96 application probably did have poor prospects of success, for the reasons I have given. However, Mr and Mrs Walton are lay persons who could not be expected to know the planning law and judicial decisions relating to s 96 applications. Although Mr Kelso fairly tried to give notice through his letters of the likely outcome and provide a reason for that outcome (that there has been no change in circumstances), the terms of that notice would perhaps only be properly understood by a person with some knowledge of the planning law and judicial decisions. Mr Walton evidently did not understand the significance of what he was being told by Mr Kelso, as evidenced by his question in his letter of 24 May 2006 stating that he did not understand the reference to the need for a change in circumstances and why Mr Kelso said there had been no change in circumstances.
82 At Talbot J said in Aldi Food Pty Limited v Holroyd City Council (2005) 142 LGERA 141 at 144 [5]:
"...costs will not be awarded in the proceedings referred to in Part 16 rule 4 unless it is fair and reasonable to depart from the underlying assumption in the circumstances of the particular case. Reasonableness is to be determined according to the ordinary sense of the word. The award for costs has to be fair as well as reasonable. Thus not only must it be reasonable for costs to be awarded but it must also be just and equitable."
83 Looking at all of the circumstances of this s 96 application, including the background and history to it, I have not been persuaded that it is not only reasonable for costs to be awarded but that it is just and equitable for costs to be awarded. Accordingly, I consider that the proper order in the particular circumstances of this case is that each party should pay their own costs of the s 96 application.
Orders
84 The orders of the Court are, therefore: