Land and Environment Court of New South Wales CITATION : Mansfield v Wyong Shire Council [2000] NSWLEC 260 APPLICANT: James Mansfield PARTIES : RESPONDENT: Wyong Shire Council FILE NUMBER(S) : 10441 of 1999 CORAM: Talbot J KEY ISSUES: Costs :- exceptional circumstances where formal proof of disputed jurisdictional fact is required LEGISLATION CITED: Land and Environment Court Act 1979 CASES CITED: Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365 DATES OF HEARING: 7/12/2000 DATE OF JUDGMENT: 12/12/2000 APPLICANT: Mr W R Davison SC SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: Mr W P O'Rourke (Solicitor) SOLICITORS: Deacons Graham & James JUDGMENT: IN THE LAND AND Matter No. 10441 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 12 December, 2000 James Mansfield Applicant v Wyong Shire Council Respondent REASONS FOR JUDGMENT 1. On 23 June 2000 I delivered judgment whereby there was a finding on a preliminary issue that use of part of the applicant's land for the purpose of steel fabrication is an existing use within the meaning of the definition contained in s 106(a) of the Environmental Planning and Assessment Act 1979. 2. These are class 1 proceedings which are the subject of cl 10 of the Land and Environment Court Practice Direction 1993 ("the Practice Direction"). Clause 10 reiterates the practice of the Court that no order for costs is made in planning and building appeals unless the circumstances are exceptional. 3. Mr Davison SC appears for the applicant in support of a notice of motion that the respondent pay the applicant's costs of and incidental to the hearing of the preliminary issue and that the respondent pay the applicant's costs of the motion. 4. There are two bases for the claim that there are exceptional circumstances. 5. Firstly, Mr Davison draws attention to advice given to council by its solicitors prior to the commencement of the hearing based upon the same facts relied upon to establish the historical use of the property as those established at the hearing, so that the council was in the same position as the Court and should have recognised that there was an existing use at that time, thereby avoiding the costs of litigating the preliminary issue. 6. I agree with Mr O'Rourke who appears for the council that the position is not as clear cut as Mr Davison would have the Court accept and that the advice held by council was in relation to a claim for the enjoyment of existing use rights which had a different character to the existing use ultimately established at the hearing. The Court found that the relevant existing use was for the purpose of steel fabrication whereas the submission made to the council and which was the subject of its solicitor's advice encompassed a use for the purpose of the manufacture and assembly of steel and timber products and that the current use of the property for the manufacture and supply of mobile homes was a continuation of that use. 7. Irrespective of what the position was, the Court is not satisfied that there were relevantly exceptional circumstances in the evidentiary context of an existing use claim. 8. Mr Davison then relied on the fact that the parties proceeded on the basis that the facts in dispute should be the subject of formal proof, notwithstanding the provisions of s 38(2) of the Land and Environment Court Act 1979. Section 38(2) provides that in proceedings in class 1, 2 or 3 of the Court's jurisdiction the Court is not bound by the rules of evidence. That is not to say that the rules of evidence can never be applied. 9. At para 6 of the judgment reference is made to my preliminary view that in practice the rules of evidence should be applied if the proof of a jurisdictional fact or the characterisation of development such as the establishment of existing use rights is necessary. As I have said, the parties agreed to proceed on a formal basis in these proceedings. 10. In Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365 the Chief Judge outlined the history of the application of the Practice Direction where the Court is asked to determine a question of law in class 1 or 2 proceedings. Finally, Her Honour recognised at 370 that the raising of a preliminary question of law in class 1 or 2 proceedings has the consequence only that it is a factor to be taken into account in considering whether there are exceptional circumstances. Her Honour opined against the adoption of a practice which would discriminate against the application of the Practice Direction where a preliminary question of law is determined and further that the raising of a pure question of law of itself invariably be regarded as constituting exceptional circumstances. 11. I respectfully adopt Her Honour's reasoning in Outdoor Australia at 369 that the distinction between determination of merit issues on discretionary planning grounds and determinations of questions of pure law was not the foundation for the Practice Direction, but rather that parties be free to seek review of planning decisions by council without the threat of a costs order if unsuccessful. 12. In the present case the applicant set out to prove a matter which was not capable of being determined on the basis of merit or by reliance on a Statement of Agreed Facts or even on the resolution of an issue of construction of the statutory provision. What was required was formal proof of a matter that equated to the establishment of a title. In those circumstances it was perfectly proper and in my opinion imperative that the applicant be put to formal proof of the entitlement which he claimed in respect of the use of the land. 13. I am satisfied that the nature of the claim, the demands of proof of what in essence is a legal entitlement constituting a jurisdictional fact amount to exceptional circumstances within the meaning of the Practice Direction. 14. The applicant was successful in establishing an existing use over the contention of the council which called evidence in an attempt to refute the applicant's claim. I am satisfied therefore that in the particular circumstances of this case the applicant is entitled to an order for its costs incurred in respect of the preliminary hearing and of this motion. Orders 15. The formal orders of the Court are:- 1. The respondent pay the applicant's costs in respect of the preliminary issue determined by judgment delivered by the Court on 23 June 2000. 2. The exhibits may be returned. 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.