Short v Clarence Valley Council [2008] NSWLEC 193

Land and Environment Court of New South Wales

CITATION : Short v Clarence Valley Council [2008] NSWLEC 193 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Samuel Douglas Short PARTIES : RESPONDENT Clarence Valley Council

FILE NUMBER(S) : 10275 of 2008

CORAM: Preston CJ

KEY ISSUES: Practice and Procedure :- conciliation conference fixed - motion to vacate - motion refused - costs of motion

DATES OF HEARING: 5 June 2008

EX TEMPORE JUDGMENT DATE : 5 June 2008

APPLICANT Mr R Creighton (agent) AGENTS Australian Town Planning Consultants 2 Pty Limited LEGAL REPRESENTATIVES: RESPONDENT Ms C Amato (barrister) SOLICITORS Pickering Priestley

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

5 JUNE 2008

10275 OF 2008

SAMUEL DOUGLAS SHORT V CLARENCE VALLEY COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant moves by notice of motion filed on 2 June 2008 that the conciliation conference under s 34, listed to take place tomorrow 6 June 2008, be vacated. 2 In support of that motion, the applicant relies on an affidavit by Mr Creighton sworn 2 June 2008. In that affidavit, Mr Creighton referred to contentions 2 and 3 contained in the applicant's Statement of Agreed Facts and Contentions dated 2 May 2008. 3 Those contentions included, in contention 2, that there may be an existing use for a dwelling on the land as footings from an existing structure remain on the land and, in contention 3, that the proposed development is consistent with the existing use and development pattern in the vicinity. 4 Mr Creighton says in the affidavit that the Council was requested by letter dated 27 May 2008 to produce documents including any development consents or building approvals, or other approvals in relation to the land, evidently for the purpose of endeavouring to establish that there may be an existing use of the land. Mr Creighton says that it would not be possible for the Court to adequately assess the proceedings without such material being available. Without that material being available, Mr Creighton has submitted that the applicant would not be in a position to proceed with the s 34 conference. 5 The Council read an affidavit of Mr Priestley, the solicitor with the care and conduct of the matter on behalf of the Council. In that affidavit, Mr Priestley set out the history of the matter. This reveals that subsequent to the applicant filing his Statement of Agreed Facts and Contentions on 2 May 2008 in which he raised the existing use issue, Mr Creighton had requested the Registrar to adjourn the proceedings to investigate the issue of existing use rights. The Registrar, however, did not adjourn the matter and instead set the matter down for a s 34 conciliation conference. 6 In relation to the request for documents, Mr Priestley says that his firm has no documents that fall within the ambit of the request and, furthermore, he has sought instructions from the Council and they do not have documents that fall within the ambit of the request. 7 The applicant, through his agent Mr Creighton, made submissions that the matter should be vacated for the reasons that have been set out in Mr Creighton's affidavit. The Council opposes the vacation of the s 34 conciliation conference. The Council says that it is prepared to proceed at the conference, that it still has an open-mind in relation to the matter, and would participate in good faith in the negotiations that are an essential part of the conciliation process. Furthermore, the Council says that it would make further investigations of its files to ascertain whether there are any development consents, building approvals or other approvals that may be relevant to the land, and that could found any argument as to existing use rights or existing consent rights. 8 In my opinion, the s 34 conciliation conference should proceed and the applicant's motion should be dismissed. The applicant has been on notice since at least 21 April 2008, about the Council's contention that the proposed development the subject of the development application infringed, in the respect stated, the relevant local environmental plan. The Council's Statement of Facts and Contentions had been filed on 21 April 2008. The applicant had responded to that statement by his own Statement of Facts and Contentions in which he contended there were existing use rights. It was incumbent on the applicant, having regard to the fact that an applicant always bears the onus of proof to establish existing use rights, to have proceeded promptly to subpoena or otherwise inspect the Council's Register of Consents and files to ascertain whether there were any approvals or consents relating to the land. 9 The fact that the applicant has delayed these requests, and this preparation, should not now be a reason to vacate the s 34 conciliation conference. In any event, the Council has made inquiries and has reported to its solicitor that it was not able to ascertain any documents answering the applicant's request for documents, however, it has indicated that it will make further inquiries to be ready for the matter tomorrow and the results of those further inquiries will be available tomorrow. The Council has indicated that it is prepared to negotiate at the conciliation. In these circumstances, there is still utility in the s 34 conciliation conference proceeding. 10 Accordingly, I decline to vacate the hearing date for the s 34 conciliation conference, and the notice of motion should be dismissed. 11 The Council then makes application for the costs of the notice of motion. It says that its approximate costs are $1,200 plus GST. In a Class 1 proceeding, the usual rule is that there is no order for costs unless the Court considers it fair and reasonable that an order for costs be made. The rules set out a number of criteria which may be taken into account in determining whether or not a costs order should be made. 12 In this case, I consider that a cost order should be made, and that is fair and reasonable to do so. However, I will fix an amount which I will nominate in a moment. 13 The proceedings were not listed for final adjudicative hearing, rather they were listed for a conciliation conference under s 34. The parties have a duty when a matter is directed to proceed to a conciliation conference, to approach the conference in good faith, and to prepare for that conference. However, the parties are not compelled to reach any agreement at the conference. The parties are at liberty to disagree and, in which case, the conciliation conference can be terminated. The parties have an option if they have not been able to reach agreement, to request the Commissioner who is presiding as conciliator, to dispose of the matter, but again the parties cannot be compelled to do that. 14 Accordingly, although the applicant is not as prepared as it ought properly to have been, there is no legal consequence by pressing ahead with the s 34 conference. It is not the same as if the proceedings had been listed for a final adjudicative hearing, and the applicant had been not in a position to put its case forward. There, if the applicant had failed, for example, to establish existing use rights, and that was dispositive of the matter, then the appeal would be dismissed. That would, of course, cause prejudice to the applicant. If the proceedings been listed for final hearing, then a more persuasive argument may have been able to be mounted that the hearing should be vacated so as to allow the applicant to prepare, but this could, of course, be on terms which would include that the applicant pay any costs thrown away by the Council. 15 However, in this case, as I have said, it is listed for a conciliation conference. No such final consequences can flow from that conciliation conference. There is still a very real benefit that could be gained by the negotiation. The parties could, of course, reach consensus, in which case the matter can be disposed of by the Commissioner in accordance with the terms of the decision to which the parties have agreed. Alternatively, there may be a narrowing or scoping of the issues. That too would be beneficial and set a framework for a later hearing. 16 The applicant's motion is, therefore, misguided in applying to vacate the conciliation conference in these circumstances. 17 Accordingly, I consider that an order should be made that the applicant pay the Council's costs of the motion. I fix the costs in the sum of $800. Orders 18 I make the following orders: