IWD No 1 Pty Limited v City of Canada Bay Council [2007] NSWLEC 150

Land and Environment Court of New South Wales

CITATION : IWD No 1 Pty Limited v City of Canada Bay Council [2007] NSWLEC 150

APPLICANT IWD No 1 Pty Limited PARTIES : RESPONDENT City of Canada Bay Council

FILE NUMBER(S) : 11295 of 2006

CORAM: Preston CJ

KEY ISSUES: Practice and Procedure :- class 1 appeal - appeal under s 97 of Environmental Planning and Assessment Act 1979 (EPA Act) against grant of consent subject to conditions with which applicant dissatisfied - subsequent application under s 96 of EPA Act to modify conditions - non-prosecution of s 97 appeal - applicant to elect whether to prosecute s 97 appeal or pursue s 96 application - applicant elected to discontinue s 97 appeal - costs

Environmental Planning and Assessment Act 1979 s 93F, s 96, LEGISLATION CITED: s 97 Land and Environment Court Rules 1996 Pt 1 r 5A(2), Pt 1 r 5A(3), Pt 16 r 4(2).

DATES OF HEARING: 19 April 2007

EX TEMPORE JUDGMENT DATE : 19 April 2007

APPLICANT Ms F Millner (Solicitor) SOLICITOR Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Ms J Hold (Solicitor) SOLICITOR Verekers Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

19 April 2007

11295 OF 2006

IWD NO 1 PTY LIMITED V CITY OF CANADA BAY COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant lodged an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the then deemed refusal by the Council of the applicant's development application. Subsequently the Council determined the development application by the grant of consent subject to conditions. 2 The applicant was of course pleased that there was a grant of consent, however, certain of the conditions on which that consent had been granted contained matters with which the applicant was dissatisfied. These matters included some errors. 3 The applicant took the not unreasonable course of making an application under s 96 of the Environmental Planning and Assessment Act 1979 to the Council to modify the conditions with which it was dissatisfied. The Council and the applicant have been in negotiations in relation to that application and in particular in relation to a requirement that there be a planning agreement under s 93F of the Environmental Planning and Assessment Act 1979 and the terms of that agreement. As at today, the respondent has not yet determined the s 96 application. 4 Whilst the s 96 application was being made and considered by the Council and negotiations were proceeding between the Council and the applicant, these s 97 proceedings were adjourned by consent on a number of occasions by the Registrar. The Registrar was advised on each occasion of the progress of the matter including the matters that I have summarised above. 5 The matter came before me today, in a sense, to bring the matter to a head. I indicated to the applicant that it was time now for the applicant to make an election whether it wished to persevere with this s 97 appeal or to restrict itself to pursuing its s 96 application to the Council and of course any rights of appeal it has in relation to either a deemed or actual refusal of that application. 6 The Court has an obligation to ensure the just, quick and cheap resolution of proceedings: see Pt 1 r 5A(2) of the Land and Environment Court Rules 1996. This obligation exists independently of any obligation of the parties to assist the Court to ensure the just, quick and cheap resolution of the proceedings: see Pt 1 r 5A(3). 7 It was for that reason that I indicated to the applicant that the time had now come for an election to be made as to whether it wished to persevere with this s 97 appeal. If it did then the proper course was for the matter to be fixed for hearing and for the matter to be resolved in that way. If, however, the applicant was content to pursue its dissatisfaction with certain conditions by the s 96 application and any appeal that it might be advised to take against a deemed or actual refusal by the Council of such application, then it could discontinue the s 97 proceedings and persevere with the s 96 application and any appeal. 8 I adjourned the proceedings to allow the applicant's legal representative to obtain instructions. Those instructions have now been obtained and the applicant seeks to discontinue the s 97 proceedings against the respondent. 9 That leaves the question of costs. The legal representative for the Council was unable to obtain instructions as to whether the Council wished to make an application for costs, nevertheless in the interest of minimising the cost to the parties, it is beneficial for the Court to determine the question of costs now. 10 Looking at the history of the matter as I have summarised above, there is nothing about those events which provides a foundation for the making of a cost order. In Class 1 proceedings under s 97 of the Environmental Planning and Assessment Act 1979, Pt 16 r 4(2) of the Land and Environment Court Rules 1996 provides that the Court shall not make an order for costs unless it considers that in the particular circumstances it is fair and reasonable to do so. 11 As I have indicated there is nothing about the events of either the lodging of the appeal or its subsequent prosecution which make it fair and reasonable for a costs order to be made. In the circumstances, therefore, I determine that each party should pay their own costs of the proceedings. Orders 12 The Court makes the following orders: 1. The Court notes that the applicant discontinues the proceedings. 2. Each party pay their own costs of the proceedings. **********