Land and Environment Court of New South Wales CITATION: Pancho Properties Pty Ltd v Wingecarribee Shire Council [No 2] [1999] NSWLEC 277 PARTIES APPLICANT: Pancho Properties Pty Ltd RESPONDENT: Wingecarribee Shire Council NUMBER: 10071 of 1998; 10072 of 1998; 10138 of 1999 CORAM: Talbot J KEY ISSUES: Costs :- class 1 - complex question of law - length of hearing - application of Practice Direction - no exceptional circumstances LEGISLATION CITED: DATES OF HEARING: 12/13/1999 DATE OF JUDGMENT DELIVERY: 12/16/1999 APPLICANT: Mr I J Hemmings (Barrister) SOLICITORS: Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr P D McClellan QC With: Ms G B Furness (Barrister) SOLICITORS: B Bilinsky & Co JUDGMENT: IN THE LAND AND Matter No. 10071, 10072 of ENVIRONMENT COURT 1998 and 10138 of 1999 OF NEW SOUTH WALES Coram: Talbot J Decision Date: 16 December 1999 Pancho Properties Pty Ltd Applicant v Wingecarribee Shire Council [No 2] Respondent REASONS FOR JUDGMENT 1. Following judgment delivered on 29 October 1999, the applicant has filed a Notice of Motion in each of these proceedings seeking an order that the respondent pay the applicant's costs of the respondent's Notices of Motion dated variously 9 July 1999 and 25 August 1999. 2. During the course of argument Mr McClellan QC suggested on behalf of the respondent that the Court should formalise the nature of the findings that it made in the judgment so that they properly reflected the context of the proceedings. 3. Although the issues were raised by Notices of Motion seeking the relief specified therein, in practical terms the Court was asked to answer a series of questions raised as preliminary questions of law which are summarised in [31] of the judgment. 4. Mr Hemmings told the Court that the applicant agreed with the course suggested by Mr McClellan. 5. The Court therefore formally answers the respective questions as follows:- (a) Question: Is the council estopped from raising the issue of the competency of the application in the manager's residence proceedings? Answer: No. (b) Question: Whether an application to use the existing dwelling is competent. Answer: Yes. (c) Question: Is the applicant relevantly dissatisfied? Answer: Yes. (d) Question: Whether, having regard to cl 23 of the LEP, the applicant cannot seek approval to amend the consent by deleting Condition 3. Answer: Clause 23 does not amount to an insurmountable hurdle to the consideration and determination of the appeal against the imposition of condition 3. (e) Question : Whether cl 13(3) and cl 13(4) of the LEP contain a development standard or a prohibition. Answer: A development standard. (f) Question: Whether cl 13(3) and cl 13(4) of the LEP apply to a rural worker's dwelling. Answer: The subclauses only apply where the rural worker's dwelling is a dwelling house. Furthermore, they only apply where erection of a rural worker's dwelling is proposed. They have no direct application to a change of use that does not necessitate erection of a building. Costs 6. Mr Hemmings invited the Court to revisit my decision in Teller Properties Pty Ltd v Randwick City Council (1994) 84 LGERA 369 and to regard the preliminary determination of a question of law as being within the concept of exceptional circumstances or as a de facto class 4 proceedings. 7. As I have said before on a number of occasions (see Lido Real Estate Pty Ltd and Anor v Woollahra Council (1997) 98 LGERA 1), this issue has now been laid to rest by the weight of judicial opinion within this Court to the contrary and I have no intention of acting inconsistently with that general consensus as to what amounts to exceptional circumstances in class 1 and 2 proceedings (see also Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365). 8. Mr Hemmings refers to the reluctance of the council to agree on a Statement of Facts for the purpose of determining the legal questions raised by the Notices of Motion and Question of Law. Having regard to the nature of the proceedings and the history of the lodgment of at least three development applications, the consideration thereof and appeals in relation thereto, it is not surprising that the parties encountered a practical difficulty in settling on an Agreed Statement of Facts. The correspondence tendered by the applicant does not show that the attitude taken by the council was unreasonable or improper in any respect. 9. The Court recognises that the applicant was placed in an invidious position once questions of illegality were raised by the council. There was no option but to meet the issues raised. The applicant submits that the allegations of illegality and reliance upon the principle that the law will not allow enforcement of rights directly resulting to a person asserting them from the crime of that person is itself extraordinary and exceptional. It follows therefore, according to Mr Hemmings, that because the council raised issues which were not ordinary, usual, regular or normal, then there were exceptional circumstances that justified the making of a costs order against the unsuccessful council in the exercise of the Court's normal discretion under s 69 of the Land and Environment Court Act 1979 (the Court Act). 10. The underlying objective of the Court's Practice Direction that no costs orders will be made in merit appeals other than in exceptional circumstances is to allow dissatisfied applicants, and councils, to pursue an appeal to this Court without the prospect of being submitted to a costs order wherever the party has acted in good faith and not in a frivolous, vexatious or oppressive manner based on an improper motive. 11. There can be no doubt that the council was justified in raising each of the issues that it did and, in particular, the question of whether the subject clauses in the LEP were a development standard in the light of the decision of this Court in Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103. 12. None of the questions raised by the council could be described as frivolous, vexatious or based upon an improper motive such as political considerations. 13. The facts disclose that, to a very large extent, the complexity of the proceedings and the multiplicity of questions arose as a consequence of the actions by the applicant. It is apparent that almost every conceivable avenue to maintain a second dwelling on the subject property has been pursued by the applicant notwithstanding that the existing dwelling has been maintained in contravention of a specific condition of consent which itself is now the subject of an appeal. 14. In the manager's residence proceedings, both before Assessor Roseth (as he then was) and subsequently in the s 56A appeal, the council has consistently regarded cl 13(4) of the LEP as a development standard. It is only after the proceedings were remitted for further hearing following the determination of the appeal from the decision of Assessor Roseth that the council relied upon the decision of this Court in Dixson . 15. It is not, in my view, an exceptional circumstance for the council to raise the issue of whether a provision in a LEP is a development standard for the first time following the Court's ruling in separate proceedings, even if the original proceedings were already on foot. Indeed it would be irresponsible of council to act otherwise. Moreover, there is nothing improper about a council acting on legal advice that it has received notwithstanding that the advice may be contrary to its long established practice or understanding. Nor is it exceptional in the context of the Practice Direction that there is a difference of judicial opinion on the same issue. 16. As I have already indicated, the length of the hearing was as much to do with the applicant's own actions. The council's responses are both reactive and predictable. The length of the hearing is a product of the complexity of the issues rather than the direct fault of either party. 17. Mr Hemmings also asked the Court to take into account the fact that the council, on 8 December 1999, resolved to amend its LEP by deleting cl 13(4) without incorporating any savings provision as an exceptional circumstance. This action of the council, together with its decision to lodge an appeal against my determination of the questions of law is said by Mr Hemmings to contribute to a conclusion that the circumstances are exceptional having regard to the waste of the costs incurred. The allegation of waste has not been substantiated and for the moment has not arisen. In any event, I am unable to accept that either of these two matters raise an exceptional circumstance. 18. Whilever Practice Direction 10 dictates the Court's approach to the making of a costs order in planning appeals, the arguments put forward by Mr Hemmings cannot succeed. Notwithstanding that important issues were resolved between the parties and complex questions of general application were addressed, unless the approach to the litigation taken by one or other of the parties disentitled that party to the protection against a costs order, or the circumstances are otherwise deemed to be exceptional, then there can be no order as to costs. None of the above circumstances occurred in this case. 19. The notices of motion seeking an order for costs against the council are dismissed. 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.