Land and Environment Court of New South Wales CITATION : Conomos and Anor v Woollahra Municipal Council and Anor [2001] NSWLEC 56 APPLICANTS: Marcus William Conomos and Another PARTIES : RESPONDENTS: Woollahra Municipal Council and Another FILE NUMBER(S) : 40008 of 2000 CORAM: Talbot J KEY ISSUES: Costs :- orders by consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Latoudis v Casey (1990) 170 CLR 534; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 DATES OF HEARING: 16/03/2001, 20/03/2001 (written submissions) DATE OF JUDGMENT: 03/26/2001 APPLICANTS: Mr M T McCulloch (Barrister) SOLICITORS: Conomos and Spinak FIRST RESPONDENT: LEGAL REPRESENTATIVES: N/A SECOND RESPONDENT: Ms D L Goddard (Solicitor) SOLICITORS: Miller Goddard JUDGMENT: IN THE LAND AND Matter No. 40008 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 26 March, 2001 Marcus William Conomos and Stella Conomos Applicants v Woollahra Municipal Council First Respondent Judith Alicia Chryssochoides Second Respondent REASONS FOR JUDGMENT 1. These proceedings, commenced in the Court's class 4 jurisdiction, challenged the validity of development consent DA 15/99 granted by the first respondent to the second respondent on 12 October 1999. 2. When the proceedings were first commenced in January 1999 the second respondent was not a party. The only relief claimed in the original application was a declaration that the development consent and any construction certificate is void and an order that they be set aside. 3. An Amended Application Class 4 filed on 29 March 2000 claims a declaration that the development consent and any construction certificate issued by the first respondent in respect of that consent is void. Further, that the second respondent be restrained from carrying out the development for the construction of a ramp upon land known as No 2 Kulgoa Road Bellevue Hill pursuant to the consent. In the alternative the applicants sought an order that the operation of the consent be suspended and that additional conditions be imposed prior to the issue of a construction certificate. 4. The development consent was granted by the first respondent on 12 October 1999. The applicants lodged a formal objection to the development application as adjoining owners. 5. The applicants' complaint appears to be that the development application was determined by the granting of consent under delegated authority contrary to representations made that the determination would be made by the full council. Subsequently further representations were made to the council by the applicants as a consequence of which the second respondent was invited to make an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") to modify the consent in a way that satisfied the complaints of the applicants. At the date of commencement of proceedings no s 96 application had been lodged. 6. On 9 August 2000 the parties and their representatives met at a without prejudice conference and established heads of agreement pursuant to which the second respondent agreed to make an application pursuant to s 96. 7. The heads of agreement were embodied in a formal deed made between the applicant and the second respondent on 26 October 2000. 8. In the meantime Points of Claim had been filed by the applicant in May 2000 and the second respondent filed a submitting appearance save as to costs on 5 June 2000. 9. The council filed Points of Defence on 7 June 2000. 10. By notice of motion filed 6 September 2000 the applicants applied for leave to file and serve a Further Amended Class 4 Application. The notice of motion was dismissed by the registrar on 4 October 2000. 11. By further notice of motion filed 20 October 2000 the applicants again applied for leave to file and serve a Further Amended Class 4 Application and Amended Points of Claim. This notice of motion has not been heard. 12. Following the execution of the deed in November 2000 the applicant lodged an application pursuant to s 96. The development consent was modified by the first respondent pursuant to the s 96 application on 11 December 2000. 13. The second respondent also lodged a further development application DA 910/00 in November 2000. This development application sought consent to the erection of an identical ramp with minor design changes intended to meet the objections raised by the applicants. 14. The further development application was determined by the granting of consent by the first respondent on 19 February 2001. 15. The notice of motion filed on 20 October 2000 was adjourned on 27 October 2000, 17 January 2001 and 26 February 2001. 16. On 5 March 2001 the first and second respondents informed the Court that they proposed to move the Court for orders that the proceedings be dismissed. 17. The council as first respondent filed a notice of motion dated 9 March 2001 seeking an order that the second respondent be restrained from carrying out development pursuant to development consent No 15/99 and otherwise, that the proceedings be dismissed pursuant to Pt 6 r 2 of the Land and Environment Court Rules and Pt 13 r 5 of the Supreme Court Rules. 18. The notice of motion was returned before me as Duty Judge on 16 March 2001 when the order restraining the second respondent from carrying out development pursuant to development consent No 15/99 was made by consent. By consent there was no order as to costs between the applicant and the first respondent. There was also no order as to costs between the first respondent and the second respondent, by consent. 19. The outstanding matter to be resolved is an application by way of notice of motion filed by the second respondent on 9 March 2001 that the applicants be ordered to pay the second respondent's costs. After hearing argument on 16 March 2001 the applicant and the second respondent were granted leave to make further submissions in order to complete their respective arguments. 20. The dispute between all parties has been resolved without any adjudication by the Court on the merits of the claims made by the applicant. Nevertheless, the applicant has obtained relief, at least in part. 21. It is well settled that the power to order costs is discretionary and that success in the action or on particular issues is the fact that usually controls the exercise of the discretion ( Latoudis v Casey (1990) 170 CLR 534). 22. It is not appropriate for the Court to conduct a defacto hearing on the merits in order to determine which party should carry the burden of costs when the issues in the litigation have been settled without the intervention of the Court. 23. In the present case the development consent which was the subject of the applicants' challenge has, by the consent of the parties, been rendered ineffective. The Court's understanding is that nevertheless the second respondent may proceed with the proposed development in accordance with development consent No 910/00. It appears to be accepted that the development will be for all practical purposes the same as that which was approved by development consent No 15/99 as modified by the first respondent on 11 December 2000. 24. The issues between the parties most directly concerned with the outcome, namely, the applicants and the second respondent, were effectively settled when the heads of agreement were reached and most certainly when the deed was executed. 25. Once the agreement had been reached outside the parameters of the litigation process there was no practical justification for any party to take any further positive steps in relation to the proceedings. Thus it is difficult to understand the motivation behind the applicants' actions by way of seeking leave pursuant to the notices of motion filed 6 September 2000 and 20 October 2000. 26. If matters had been left to take a logical course through the usual application, consideration and determination process pursuant to the EP&A Act and in accordance with the terms of the agreement there would have been no need for any reference to the Court except to formally wind up the proceedings in a way that reflected the agreement of the parties. If that had been allowed to happen then the appropriate order would have been no orders as to costs as between the applicants and the second respondent for the reasons explained by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624 - 625. 27. In my opinion it is appropriate that an order for costs be made in favour of the second respondent in respect of the costs of the notice of motion filed 6 September 2000 and the notice of motion filed 20 October 2000 together with the costs of the second respondent's notice of motion heard on 16 March 2001. The second respondent has been partially successful on her motion and is therefore entitled to the costs of that motion. 28. Otherwise there should be no order as to costs between the applicants and the second respondent. Orders 29. The formal orders of the Court in response to the notice of motion filed by the second respondent on 9 March 2001 are as follows:- 1. The applicants pay the costs of the second respondent in respect of notices of motion filed 6 September 2000 and 20 October 2000 by the applicants and notice of motion filed by the second respondent on 9 March 2001. 2. Subject to order 1, no order as to costs between the applicant and the second respondent. 3. 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.