Land and Environment Court of New South Wales CITATION : Moodley and Another v Botany Bay City Council [2004] NSWLEC 125 APPLICANTS Selvem Moodley PARTIES : Sivalingam Moodley RESPONDENT Botany Bay City Council FILE NUMBER(S) : 40132 of 2003 CORAM: Talbot J KEY ISSUES: Costs :- following discontinuance of class 4 proceedings LEGISLATION CITED: CASES CITED: DATES OF HEARING: 29/03/2004 DATE OF JUDGMENT: 04/01/2004 APPLICANT Mr T Moodley (Agent) SOLICITORS NA LEGAL REPRESENTATIVES: RESPONDENT Mr T J O'Connor (Solicitor) SOLICITORS Houston Dearn O'Connor JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40132 of 2003 Talbot J 1 April 2004 Selvem Moodley Sivalingam Moodley Applicants v Botany Bay City Council Respondent Judgment Introduction 1 The applicants filed an application on 6 February 2003 seeking seven declarations and orders. Two of the issues related to whether the site comprised two separate legal allotments or whether the two allotments must be consolidated before an application for the erection of a dwelling house could be considered. 2 The history of the development applications lodged by the applicants with Botany Bay City Council ("the council") is complicated but nevertheless needs to be summarised in order to determine whether or not either party should have the benefit of an order for costs in its favour following discontinuance of the class four proceedings. 3 In matter No. 10844 of 2001 the applicants appealed against the rejection of development application DA 02/180. Following the lodgement of a further development application DA 02/023 and its refusal, Bignold J gave leave for the applicants to rely upon the refusal of DA 02/023 in matter No. 10844 of 2001. Subsequently, matter No. 10844 of 2001 was discontinued in December 2001. 4 In October 2002 a further development application DA 03/286 was lodged with the council. An appeal in respect of this development application was dismissed by Commissioner Hoffman in matter No. 10974 of 2002 following a hearing on 1 and 2 May 2003. In the meantime, the applicants commenced the present proceedings on 6 February 2003. 5 After Commissioner Hoffman dismissed the class 1 appeal in matter No. 10974 of 2002 a fresh development application, DA 04/173, was lodged with the council in October 2003, together with a s 96 application, DA 02/386. These applications were approved by the council on 5 February 2004 notwithstanding that appeals had been lodged. Commissioner Hussey modified the conditions of approval on 18 February 2004. The approval by Commissioner Hussey had the effect of rendering the class 4 proceedings otiose because the consent for the proposed development did not require re-subdivision of the land. 6 Following the commencement of the class 4 proceedings on 6 February 2003, the matter was adjourned on four occasions pending the outcome of matter No. 10974 of 2002. After being fixed for hearing on 3 November 2003 the class 4 proceedings were further adjourned pending the hearing before Commissioner Hussey. 7 Both parties have made an application for an order for costs. The applicants are represented by their agent, Thesigan Moodley, and Mr O'Connor appears for the council. 8 It is the applicants position that if they had not been successful in the class 1 proceedings heard by Commissioner Hussey they would have pursued relief in class 4. However, because a solution was achieved without pursuing the class 4 it was reasonable to discontinue the latter proceedings. 9 The statement of issues relied upon in matter No. 10974 of 2002 did not specifically raise the issue of subdivision. It was claimed, however, that the proposed dwelling would not be in keeping with the prevailing character of surrounding residential development because the subject allotment has no identifiable street frontage. However, Mr Moodley relies upon a report made to the council by the Manager – Development Assessment on 10 September 2001 ("the report") which states that the existing separate allotment is required to comply with the Subdivision Development Control Plan ("the DCP") with respect to Battle-axe Subdivision due to the need to provide a vehicular access handle. The report then identifies a number of matters which are said to be non-compliant with cl 9.4(a) of the DCP. The Manger – Development Assessment also referred to the need for boundary adjustment/subdivision to create a vehicular access handle when addressing the likely impacts of the development upon neighbouring residential uses. Mr Moodley says it was reasonable, therefore, for the applicants to anticipate that even though the issue was not directly raised the question of whether a subdivision was required was a question that needed to be resolved as a consequence of the stance taken by the council. 10 Commissioner Hoffman made the following observation in his judgment:- 59 …The councils subdivision Development Control Plan No. 7 Version 2 was a reasonable guide to an appropriate solution where two households would be using the same long driveway. 60 Interestingly there was no issue directly related to this question although it did arise in expert evidence and must be given some weight. 11 It is apparent, therefore, that although the statement of issues did not specifically raise the issue of a subdivision, nevertheless the council's expert addressed such a prospect in the evidence. It is understandable that the DCP could be used as a guide where there was an issue of adequacy of access to a rear allotment served only by an easement. Commissioner Hussey appears to have overcome the difficulties envisaged by the council by requiring an adjustment of the height of windowsills, thereby alleviating the privacy impact. 12 Mr Moodley insists that he made several attempts to persuade the Registrar to include the dispute regarding the requirement for a subdivision as an issue or direct the council to amend the statement of issues to incorporate that issue in the class 1 proceedings. As these attempts were unsuccessful, he asserts that the applicants were obliged to commence the class 4 proceedings to clarify the matter. 13 On the other hand, Mr O'Connor denies that a requirement for subdivision was ever an issue in any of the class 1 proceedings. He submits that the correct approach is for the Court to determine whether the proceedings were justifiably commenced, justifiably continued, justifiably discontinued and in all probability would have succeeded had they been fully litigated. 14 There is no question in my mind that the proceedings were justifiably discontinued following Commissioner Hussey's decision. The question of whether the proceedings were justifiably commenced and justifiably continued is more difficult to determine because the answer depends upon whether it was open for the applicants to construe the position as they did, namely that the requirement for a re-subdivision of the land was a prerequisite for success in class 1 proceedings. Commissioner Hoffman appears to have done no more than draw an analogy to subdivision by using the DCP as a reasonable guide for a solution to the conflict. 15 Mr Moodley, in his written submissions, accepts that subdivision was never raised as an issue. His argument appears to be that the applicants were justified in seeking to resolve the question of whether a subdivision was required in the separate class 4 proceedings because the nature of the council's case indicated subdivision was required even though the council consistently refused or neglected to specify it as an issue. 16 On 14 February 2003 the solicitors for the council wrote to the applicants in terms that recognised lot 1 and lot A of the applicants' land were held under separate legal title and that, accordingly, a declaration to that effect was irrelevant. In the same letter the solicitors reiterated that the question of whether the development application for the erection of a dwelling house is not required to be preceded by a subdivision to create a separate allotment was being addressed in the class 1 appeal then current. This is a reference to matter No. 10974 of 2002 heard by Commissioner Hoffman on 1 and 2 May 2002 and in respect of which judgment was delivered on 20 June 2003. The applicants were invited to discontinue the class 4 proceedings at that time. 17 Furthermore, on 2 September 2003 the solicitors again wrote to the applicants offering to settle the question of costs in the class 4 proceedings on the basis that if the applicants discontinued then they would be asked to pay only 75 per cent of the council's costs up to that date. It was not until 10 March 2004 that the applicants formally indicated to the Court an intention to discontinue the class 4 proceedings. 18 On the balance of probabilities I am satisfied that the applicants justifiably commenced the proceedings because at that time there was a real doubt about the nature of the council's argument in relation to subdivision. However, after Commissioner Hoffman delivered judgment on 20 June 2003 it should have been clear that there was no formal issue in respect of subdivision other than perhaps as a solution to the merit issue. The council foreshadowed this position in its letter dated 14 May 2003. 19 Commissioner Hoffman was at pains to deal with the issues raised at length in his judgment. He explained in detail why the proposed development was unacceptable on merit grounds. There was no suggestion in the reasons that a subdivision was necessary before the merit issues could be satisfactorily addressed. I am prepared to conclude, therefore, that following the decision by Commissioner Hoffman the applicants were in a position to appreciate the reasons for refusal. All of these reasons were based upon the merits of the proposal. 20 The consideration of the development application and s 96 application which ultimately were finally determined by Commissioner Hussey did not involve any suggestion by either party that a subdivision might be required. 21 Having analysed the position as best I can in the circumstances I have concluded that after Commissioner Hoffman delivered judgment on 20 June 2003 the applicants should have discontinued the class 4 proceedings as lacking any further utility. After that date the proceedings were not, in my opinion, justifiably continued. They were justifiably discontinued in March this year albeit late. 22 Notwithstanding the probability that the applicants were justified in commencing the proceedings they nevertheless should have discontinued at the first opportunity after 20 June 2003. They were alerted to the prospect of a discontinuance by the letters from the council's solicitors dated 14 May 2003 and 2 September 2003. Thereafter the applicants lost the opportunity to justify maintaining the class 4 proceedings on foot. 23 Although I have accepted that on the balance of probabilities the applicants were justified in commencing the proceedings, I am not persuaded that they should have the benefit of a costs order in their favour on that account. It is appropriate in the circumstances of the way in which the class 1 proceedings were being conducted up to 20 June 2003 that there be no order as to costs. However, after that date I am satisfied that the council is entitled to an order for costs. I propose to make an order to that effect. Orders 24 I make the following orders:- (1) No order as to costs up to and including 20 June 2003. (2) The applicants pay the costs of the respondent from 20 June 2003, including the hearing on 29 March 2004. (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.