> Land and Environment Court of New South Wales CITATION : Fernance Family Holdings v Newcastle City Council [2003] NSWLEC 114 APPLICANT: Fernance Family Holdings PARTIES : RESPONDENT: Newcastle City Council FILE NUMBER(S) : 10273 of 2003 CORAM: Bignold J KEY ISSUES: Costs :- in class 1 proceedings-Costs Motion seeking to modify an expired development consent. Motion bound to fail. Costs awarded. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 21/03/2003 EX TEMPORE JUDGMENT DATE : 03/21/2003 APPLICANT: Mr D Wilson, Barrister SOLICITORS Turnbull Hill LEGAL REPRESENTATIVES: RESPONDENT: Mr S Brockwell, Barrister SOLICITORS Sparkes Helmore JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Matter No . . 10273 of 2003 Coram : Bignold J 21 March 2003 FERNANCE FAMILY HOLDINGS PTY LIMITED Applicant v NEWCASTLE CITY COUNCIL Respondent JUDGMENT 1. The Court has before it two Notices of Motion brought in Class 1 proceedings which were filed in Court on 13 March 2003, being an appeal against the Council's deemed refusal of a development application to use the hotel's car parking area for functions on Anzac Day and Melbourne Cup Day, the hotel being the Cricketer's Arms Hotel situated the corner of Bruce and Bull Streets, Cooks Hill. One Motion seeks an order for expedition and the other Motion seeks an immediate modification of a now expired development consent. 2. The development application was lodged with the Council in January of this year and it was supported by a detailed statement of environmental effects. 3. The use for which approval is being sought is the same use for which approval was sought in an earlier application which was considered and determined by the Court on 13 February 2001. On that occasion Commissioner Murrell in determining the application granted development consent for a period of two years only. This is made clear in the provisions of "Part A" of the conditions of development consent which are annexed to the Court's orders made on 13 February. 4. The Commissioner in the Part A conditions noted inter alia that a further development consent by modification must be obtained for any additional functions or if the Applicant wishes to continue the special functions on Anzac Day and Melbourne Cup Day. The consent therefore sanctioned the use on Anzac Day 2001 and 2002 and on Melbourne Cup Day on 2001 and 2002, but did not extend thereafter. 5. The reason that the Commissioner imposed what she described a "time limited consent" is stated in the condition, as follows— To provide for a trial period of the proposed development and assessment of impacts to assist in assessing whether other functions could be consented to in the event of further applications being made to the Council. 6. The application for expedition is supported by the affidavits of Paul Leslie O'Sullivan, the Solicitor for the Hotel and by Michael Gregory Noonan, a Consultant Town Planner. 7. Mr O'Sullivan's affidavit essentially refers to the Court's orders in February 2001 and in particular to the fact that it was limited to the two years that I have earlier mentioned and simply notes that the Applicant is seeking to conduct the function in the hotel car park on 25 April this year, that is Anzac Day of this year and on each Melbourne Cup Day and Anzac Day thereafter. 8. The affidavit of Mr Noonan deposes to his preparing the development application after consultation with Council officers and to the fact that the application is supported by a detailed statement of environmental effects. That is the gamut of the affidavit evidence in support. 9. The Council through its Counsel today has opposed both Motions. The first Motion being for expedition of the development appeal and the second Motion being probably advanced as an alternative to the grant of expedition, namely that the Court entertain instanter an application to modify the Court's earlier consent of February 2001 by adding a proviso, as it were, to the time limited condition to provide that notwithstanding its terms, a further function is permitted to operate on Anzac Day, 25 April 2003, subject to the terms of the consent. 10. In my opinion, for the reasons ably articulated by Counsel for the Council neither application can be granted. The application for expedition, in my view, does not make out a case. The appeal has been filed only a matter of a couple of days ago and it is irresistible in the absence of any other evidence to the contrary, but to accept Council's submission that the application for development consent has been made tardily in the sense that it would have been known to the Applicant since the consent was granted in February 2001 that it was limited to the two years for the two years of Anzac Day and Melbourne Cup Day activities and although the period was a trial period, steps could have been taken for the development application to have been lodged well in advance of when it was lodged. 11. The alternative application was for the Court to consider instanter what appears to be a postscriptal qualification on the limited time consent granted by Commissioner Murrell. As Counsel for the Council has pointed out, the application presents a formidable difficulty inasmuch as the consent is no longer operative, having expired on Melbourne Cup Day 2002 and it is difficult to see how that consent can now be modified. But apart from that difficulty (which appears to be formidable but on which I need not express any concluded view), again I must accept the submissions from Council's Counsel that no case has been made for the Court to entertain that Motion instanter and with the evidence supporting the Motion for expedition not having carried the day in support of that Motion, it is even less effective to carry the day for the alternative Motion. 12. In those circumstances both Motions are dismissed. [Counsel addressed on costs] 13. Consequent upon the announcement of my decisions in respect to two Notices of Motion brought by the Applicant in these present proceedings, Counsel for the respondent Council sought an order for costs in relation to the Notice of Motion seeking the Court to entertain instanter a Notice of Motion to modify a consent granted by the Court granted on 13 February 2001. 14. The application is made only in respect of that Motion and not in respect of the Notice of Motion seeking expedition of the present class 1 proceedings 15. The application is made for the reasons articulated because it is said that but for the Applicant raising that Motion and filing that Motion in the Court today, the Notice of Motion in respect of the application for expedition would have ordinarily been dealt with by the Registrar in her list, but because of the presence of this second Motion sought to be entertained and determined by the Court instanter the matter was required to be referred to the duty list and so it was by the Registrar. 16. The application for costs is based upon the proposition that the Notice of Motion ought not to have been brought because it was doomed to fail from the beginning. 17. In the course of refusing to entertain of the Notice of Motion I expressed the view that a formidable legal difficulty appeared on the face of the matter inasmuch as the consent granted by the Court on 13 February 2001 appeared to have expired on Melbourne Cup Day 2002 and that there was no relevant development consent in force today upon which the modification application could attach itself. In my view that argument now requires me to express a concluded view because without a concluded view the application for costs on the basis that the Motion was doomed to fail ab initio could not be made out. 18. In the light of the argument advanced I am now prepared to express the conclusion that the Motion seeking to modify the development consent at a time when it had already expired was in fact hopeless and bound to fail and in those circumstances costs incurred in relation to that Motion should be regarded as costs that ought not to have been incurred and the Council should be compensated for having to make a case against it. 19. It was put that most of the time the matter before me today directed attention to the Motion for expedition and that is true, but it is a matter for assessment as to whether a costs order in respect of the Notice of Motion seeking the modification of the expired consent involves real costs. However, as a matter of principle, the application for costs having been made and been substantiated, I consider it appropriate that I make an order in that behalf. 20. Accordingly in dismissing the Notice of Motion filed in Court today seeking to modify the expired development consent I dismiss it with costs in the sum agreed or failing agreement, as assessed. 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.