> Land and Environment Court of New South Wales CITATION : Koprivnjak, J v Blue Mountains Council [2003] NSWLEC 450 APPLICANT: Koprivnjak, J PARTIES : RESPONDENT: Blue Mountains City Council FILE NUMBER(S) : 10281 of 2003 CORAM: Bignold J KEY ISSUES: Costs :- Costs in class 1 matter due to discontinuance of proceedings LEGISLATION CITED: Land and Environment Court Rules, Pt 11 CASES CITED: DATES OF HEARING: 04/02/2003 EX TEMPORE JUDGMENT DATE : 02/04/2003 APPLICANT: In person SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: T Cork, Solicitor SOLICITOS McPhee Kelshaw JUDGMENT: 2 THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 4 February 2003 10281 of 2003 KOPRIVNJAK v BLUE MOUNTAINS CITY COUNCIL JUDGMENT HIS HONOUR 1. This is an application by notice of Motion filed in Class 1 proceedings on 8 November 2002 by Blue Mountains City Council seeking an order that the Applicant in the proceedings pay the Council's costs in the proceedings including the costs of the Motion. The Council's claim for costs is founded upon the provisions of the Rules of Court Pt 11 r 5 which provides in subrule (1): If a party to any proceedings discontinues them in whole or in part, the Court may on the application of another party order the discontinuing party to pay the costs of any party against whom the discontinued claim was brought and who does not consent to the discontinuance. 2. The proceedings involved an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97, against the decision of the Council to grant a development consent subject to a number of conditions to a development on land known as 8 Adeline Street, Faulconbridge, the development being described and I quote from the development application: Site works including driveway and turning circle, levelled area for tennis court, retaining walls and planters. Building works including carport and entrance gate. 3. The Council's determination granting development consent is dated 11 January 2002. A number of conditions were imposed, some standard and some specifically related to the development. The Applicant's appeal was expressed against the imposition of Conditions 4, 8, 9, 15, 16 and 17 of the Development Consent. There is no need to recite those conditions. It is sufficient to appreciate that that was the gamut of the appeal. The appeal was lodged or filed on 2 April 2002. In accordance with the Court's procedure the matter was first called over on 18 April 2002 and on 22 May 2002, the Council filed a Statement of Issues in the proceedings (ten in all), one of which should be particularly noted and that is Issue 3 which states: Whether the proposed extension of the driveway and the proposed vehicle turning area should be refused pending the lodgement of a further development application identifying the development that will be serviced by those facilities. and particulars were given. On or about 22 May 2002, the case was fixed for hearing on 24 and 25 October 2002. The Notice of Discontinuance was filed in Court on 21 October 2002 just two or three days in advance of the allocated hearing dates. However, earlier notice of the discontinuance had been received by the Court by dint of facsimile transmissions received on 15 October and 18 October 2002. The notice itself is dated 14 October 2002. The Council was not served formally with the Notice of Discontinuance until 23 October 2002, the day before the allocated hearing date. However, the Council, through its Solicitor, was on notice (earlier than any of those dates cited) of the desire of the Applicant to vacate the hearing date. I refer here to the contents of the affidavit of the Council's Solicitor Trevor Ian Cork sworn 7 November 2002. In that affidavit Mr Cork deposes to receiving a telephone call from Mr Ross Creighton Planning Consultant who was acting as the Applicant's agent in the proceedings. Mr Creighton said to Mr Cork words to the effect— The Applicant wishes to vacate the hearing dates. The Applicant's filed another appeal and wishes to combine this appeal with the new appeal. 4. Mr Cork continues in his affidavit that following that conversation with Mr Creighton he (Mr Cork) ascertained that the Applicant had filed and served a further Class 1 proceeding in relation to a second development application that he had made to the Council on 22 July 2002, the appeal being lodged with the Court on 2 October 2002 by dint of the Council's failure to determine the application within the prescribed time. Mr Cork annexes to his affidavit a letter that he despatched to the Applicant care of the Applicant's agent Mr Creighton on the following day 11 October 2002. In that letter Mr Cork notes— We note that the location plan and site plan which accompanies the second application is in effect identical with the location plan and site plan lodged in support of the first application. The second application proposes the same earthworks, driveways and retaining areas as were proposed in the first application. 5. This perception is not in question in the present proceedings but the material difference between the two development applications lies in the fact that the second application incorporated in the development proposed, the erection of a substantial new dwelling house on the appeal site. Mr Cork's letter proceeds to state— In these circumstances the appropriate course for you to follow is to immediately discontinue the first appeal. If you are not prepared to take that action then it is the respondent's view that the hearing of the first appeal should proceed on the allocated dates 24 and 25 October. 6. The letter continues— We note that the respondent, that is the Council, has incurred legal costs and expenses in the course of preparing the first appeal for hearing. The desirability from your own perspective of consolidating the two appeals must have been apparent when you decided to prepare and lodge the second application, notwithstanding the fact that this action was taken by you approximately two and a half months ago. The request made by Mr Creighton on your behalf was conveyed to us on behalf of the respondent only yesterday, exactly two weeks before the listed hearing date. We are instructed that the respondent will oppose any application to vacate the current hearing dates. 7. That provides the immediate background to the action taken on behalf of the Applicant to discontinue the proceedings in the fashion that I have earlier mentioned. I should note that the Applicant's appeal in respect of the second application incorporating the proposed new residence has been allocated hearing dates on 13 and 14 March 2003, those dates having been allocated on 1 November 2002. On 20 December 2002 the Council filed a Statement of Issues in those proceedings. The Council has tendered in proof only of the fact that a report or Statement of Evidence had been prepared by the Council's town planner Mr Byron Tully, a copy of that report (Exhibit F) dated 10 October 2002, that date being 14 days before the allocated hearing date and therefore required to be served and filed conformably to the rules of Court and the Court's practice in relation to the first appeal. It is to be noted that that same date 10 October 2002 (ie 14 days clear of the allocated hearing date) was the very day upon which Mr Creighton, on behalf of the Applicant, made telephone contact with Mr Cork. 8. Those are the essential facts of the case and it is upon those facts, and relying upon the rule of Court that I have referred to, together with citation of a number of cases in this Court dealing with the exercise of the Court's costs power in relation to planning appeals which are terminated prior to a hearing by the service of a Notice of Discontinuance, that the Council seeks an order for costs against the Applicant in the proceedings. There is no need to delve into the cases that have been decided in the Court where the question of costs in planning appeals brought to an end by the service of a Notice of Discontinuance have been considered. It is fair to say that the preponderance of existing authority in this Court is to the effect that costs are often or normally ordered against the discontinuing party who discontinues without the consent of the other party, on the basis that the discontinuance, especially if belated in timing, relevantly constitutes exceptional circumstances within the meaning of par 10 of the Court's practice direction on costs being awarded in planning appeals only in exceptional circumstances. The cases are conveniently collected and discussed at par 2.6 of the Law Book Company's Land and Environment Court Law and Practice. 9. In opposing the costs order against him, the Applicant, who appears for himself today, has drawn attention to a number of matters which he claims support the conclusion that no order for costs should be made in the particular circumstances of this case. One of the matters relied upon by the Applicant is the fact that since the second development application and the pending development appeal, to be heard in March 2003, incorporates the substance of the initial application and appeal, any work and costs incurred in preparing for that matter will not be irretrievably lost and may be redeployed by the Council in the hearing of the second appeal. At this stage where the second appeal is yet to be heard, one perhaps cannot conclusively say one way or the other whether any costs incurred in preparation for the first appeal which, was belatedly discontinued, can be salvaged by redeployment in the second appeal. But in any event, the interest of the Applicant in the vindication of that assertion can be properly preserved and protected by limiting the order to costs thrown away. Such an order if made in the present case would necessarily need to await the outcome of the hearing in March of the second appeal before it could be concluded whether costs incurred have been truly thrown away either in whole or in part. The Applicant next refers to the fact that it was the Council's Solicitor himself who advised the Applicant and the Applicant's Agent that it would be appropriate for the Applicant to immediately discontinue the first appeal. I here refer to the passage from the letter of 11 October 2002 that I have cited earlier. However that piece of advice needs to be taken in its entire context. That context included the statement earlier recited that the Council would oppose any application to vacate the current hearing dates and includes the statement that the Council had already incurred legal costs and expenses in the course of preparing its case for the hearing of the first appeal. In these circumstances, the fact that the advice or invitation to discontinue the proceedings was made to the Applicant and his agent by the Council's Solicitor, does not constitute any relevant consent by the Council to the discontinuance ultimately filed. Accordingly, the power contained in Pt 11 r 5 sub (1) of the Rules of Court to order costs against the discontinuing party is properly enlivened on the facts of the present case, it being abundantly clear that the Council, through its Solicitor Mr Cork's letter of 11 October 2002, was not consenting to the discontinuance. 10. The Applicant finally refers to the somewhat tangled history, if I may so refer to it, of the development of his land. It appears that the Applicant has owned the land for some considerable time and it appears that he obtained from the Council, in or about 1994, a development consent for certain development on the land. That development consent included the sanctioning of the erection of a pavilion or recreational building ultimately to be used as some form of tennis court pavilion, but immediately to be utilised as a temporary residence for the Applicant and his family. Apparently that building has come into existence some years ago and has been used by the Applicant and his family as their residence, albeit of a temporary nature. Although there appeared to be some doubt in the Applicant's mind, it appears to be fairly clear that the approval granted by the Council in or about 1994 did not include an approval for the erection of any particular main residence although clearly enough the future emergence of a new residence on the site was acknowledged or contemplated as a possibility by the Council's approval. 11. It appears, and this is the final matter relied upon by the Applicant which is a subset of the somewhat protracted history of his attempts to develop his site, that the initial development application for site works (landscaping, fence and gate, driveway and turning circle that I have earlier referred to) that is the subject matter of the development appeal ultimately discontinued, was made by the Applicant in response to a suggestion from the Council, and it appears, although it is not entirely clear, that this action was instigated as part of an attempt by the Applicant to resolve difficulties he had encountered with the Council apparently as a result of his carrying out earthworks on the site presumably in contemplation or anticipation of the future development of the dwelling house. Be that as it may, the fact that the second development application seeks approval for the substantial dwelling on the site, though perhaps heralded for nearly the past decade, has not yet been realised in the form of any relevant development consent and it is that consent that the Applicant wishes now to obtain to develop the site as the place of his permanent residential home. 12. Ultimately, the Council's submission for costs in the present case is founded upon the fact that the discontinuance of the proceedings occurred in an untimely fashion in the sense of being belated and occurred after the Council had already incurred reasonable costs in preparation of the case. As Mr Cork's letter to the Applicant and his agent on 11 October 2002 makes clear, if the Applicant, having decided to lodge the second development application including the dwelling house on his land had taken appropriate action in that behalf when filing the development application in July 2002, or when filing the appeal against the Council's deemed refusal on 3 October 2002, and either had sought the vacation of the hearing date of the original appeal or discontinued it in timely fashion, costs would not have been incurred by the Council in preparation for the hearing of the first appeal. No doubt too the first appeal could have been overtaken or subsumed in the second appeal without financial detriment to either party. 13. However that opportunity, for reasons undisclosed in the present case, was not taken by the Applicant or his Agent and the fact that the matter was left to the initial contact by the agent with Mr Cork on 10 October 2002, a mere 14 days prior to the allocated hearing date, coinciding with the requirement for the filing of evidence in accordance with the Court's Practice Direction and Rules, and coinciding with the fact that the Council itself had prepared its case by virtue of Mr Tully's report having been completed on that day in readiness for filing and service, means that the opportunity to avoid the unnecessary incurring of costs had been lost and that fact regrettably for the Applicant can only be laid at the feet of the Applicant and his Agent. 14. Although I have some obvious sympathy for the Applicant appearing for himself, who appears to have encountered great obstacles in the way of his desired development of his land to provide a family residence and for his particular plight of living with a family, four children in apparently cramped temporary accommodation on the land, nonetheless those genuine considerations in his favour do not in my judgment operate to relieve the Applicant of ultimate responsibility for the incurring, unnecessarily as it turns out, of costs by the Council in preparation for the first appeal which could have been totally avoided by more timely action by or on behalf of the Applicant to discontinue the original appeal in preference for pursuing the second appeal. As I have indicated, to guard against any unreasonable impost in a costs order against the Applicant, I propose in the circumstances of this case to limit the order for costs to costs thrown away by the discontinuance. 15. For all of the forgoing reasons, I therefore order the Applicant to pay the costs incurred by the Council and thrown away by virtue of the discontinuance of the appeal by the Applicant, together with the costs of the hearing on today's Motion in the sum agreed or, failing agreement, as assessed. I should return Mr Cork and Mr Koprivnjak all of your exhibits except of course the exhibits which emanate from the Court file. I so order. 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.