Land and Environment Court of New South Wales CITATION : Papadatos v Randwick City Council [2000] NSWLEC 55 APPLICANT Papadatos PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10588 of 1999 CORAM: Cowdroy J KEY ISSUES: Development Application :- Application refused - appeal - notice of motion to strike out appeal - notice of motion dismissed LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 1996 CASES CITED: Stollznow v Calvert (1980) 2 NSWLR 749 DATES OF HEARING: 29/02/99 EX TEMPORE 02/29/2000 JUDGMENT DATE : APPLICANT Mr J Keogh (Barrister) SOLICITORS Not applicable LEGAL REPRESENTATIVES: RESPONDENT Ms K Gerathy (Solicitor) SOLICITORS Bowen & Gerathy JUDGMENT: IN THE LAND AND MATTER No. 10586 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 29/02/00 Papadatos Applicant v Randwick City Council Respondent JUDGMENT 1. In this application which was commenced by notice of motion dated 16 February 2000, the respondent seeks an order that the proceedings be struck out for want of prosecution and the applicant pay the respondent's costs of the proceedings and costs. 2. The history of the matter commences with the refusal of a development application by the respondent to an application relating to a dual occupancy. That application class one was commenced on 29 July 1999. The matter had come before the Registrar on several occasions when Mrs Papadatos appeared in person and Ms Gerathy appeared for Randwick City Council ("the council"). When the matter came before the Court initially there was no appearance by council. On that occasion, it was stood over and the council was notified apparently of its non-attendance. 3. The matter came before the Court again on 17 September 1999 when Mrs Papadatos again appeared and Ms Gerathy appeared for the council. There is a dispute concerning the contents of a conversation which allegedly took place by Ms Gerathy on that occasion. Ms Gerathy has deposed to the fact that an adjournment was agreed to by council on 17 September on the condition and subject to, as she says, the express understanding that any new plans which resulted from the discussions would be lodged as a new development application. She has not been cross-examined on this conversation. Ms Gerathy has sworn that she specifically recalls informing the Court and the applicant on that occasion of the conditions upon which council agreed to participate in discussions. 4. There have in fact, been several meetings with the council and the applicant thereafter. Those meetings have taken place on 8 September 1999, 8 November 1999, 23 December 1999 and 28 January 2000. No new plans have yet been prepared and the original architect retained by the applicants has been terminated and a new architect engaged. It appears on the evidence that he may not have been engaged until 17 January 2000. The consequence is that any revised plans will not be available until the end of March due to the workload of the currently retained architect. 5. The council have sought to have the proceedings terminated upon the basis that the meetings to date have taken place on the express basis that a fresh development application would be lodged. The applicant has not yet lodged a fresh development application and it is not clear that it is proposing to do so. Rather, it prefers to persist with the present application. 6. The council has pointed out through Ms Gerathy, that there is no prejudice to the applicant in lodging a fresh development application. The planning regime for the subject land has altered in effect to the benefit of the applicant and the council does not wish to persist in an appeal which it says is doomed already because council has rejected the plans. The agreement to consider fresh plans was on the basis that a fresh development application would be lodged. 7. Whilst all of those facts suggest that the current appeal may be hopeless, the fact is the applicant has not been guilty in my view of any undue delay. The principles giving rise to a successful strike out motion under Pt 12 r 2 of the Land and Environment Court Rules 1996 are set out effectively in a judgment of the New South Wales Court of Appeal in Stollznow v Calvert (1980) 2 NSWLR 749. There, the Court sets out numerous matters for consideration. One of the matters to be considered is whether there has been a want of prosecution of the appeal. That is the basis upon which the council's notice of motion has been filed seeking the orders. On the evidence, it could not be said that the applicant has failed to prosecute the appeal. On the contrary, the meetings it has held with the council have been designed to try to reach a resolution. If council proceeded on the basis that those meetings were held solely with the object in mind of a fresh development application, that is an issue that can be raised at the hearing of the appeal. 8. The principles set out by the Court of Appeal do not warrant a strike out of the appeal at this stage and accordingly, the Court declines to strike out the appeal. Costs 9. These are class one proceedings. Each party has made an application for costs of the motion. The practice rule in this Court is that in class one proceedings no order for costs is made. The council points out that it had to bring the proceedings to try to get some clarity and resolution of a matter. The respondent to the motion, that is the applicants, claim that they have been put to expense. When one looks at the file and sees the history as is outlined in the affidavits, there has been an unexplained delay concerning the retention of the new architect. I think that part of the blame for the bringing of this motion lies squarely with the applicant in the proceedings, that is the respondent to the motion. However, the Court sees no reason to depart from the usual rule that it should not make an order for costs. 10. The position is therefore, that the current appeal will continue. Council has made it clear a fresh development application will be required and that no utility will be served by their continuation. From this day, the applicant is at risk that the council will be entitled to apply for costs of this appeal if it is not successful. That is, if the applicant subsequently decides not to proceed with the application or, if on appeal it is dismissed, there will be good grounds for the council to apply for costs which would otherwise be thrown away from this day forward. I make no judgment as to whether such an application would or would not succeed. I wish to point out to the parties that litigation cannot be conducted in a way which will never incur costs if the result will only be a waste of time. 11. The Court therefore orders that there be no order in respect to the notice of motion and that each party bear its own costs of the notice of motion. 12. I direct that the matter be listed in a Registrar's call-over on 7 April. Mr Keogh it will be incumbent upon your client if it wants to save itself to proceed with great speed and exert pressure on the architects to get those plans ready by the due date if not before. Ms Gerathy, it will be incumbent upon your client to make sure it looks at the plans and knows its position before 7 April. 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.