New South Wales Court of Appeal CITATION : Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157 HEARING DATE(S) : 14/05/04 JUDGMENT DATE : 14 May 2004 JUDGMENT OF : Ipp JA at 1; Bryson JA at 14; Cripps AJA at 15 DECISION : Application for leave to appeal dismissed with costs, costs as from 3 May 2004 to be paid on an indemnity basis. CATCHWORDS : LOCAL GOVERNMENT - Development application - Section 56A of the Land and Environment Court Act 1979 - Whether Commissioner failed properly to apply a clause of a Development Control Plan - Reasons of Commissioner - PRACTICE AND PROCEDURE - Costs of Appeal - Indemnity Costs - Rejection of pre-trial offer - Where appeal intrinsically lacked merit. ND LEGISLATION CITED : Land and Environment Court Act 1979, s 56A PARTIES : Botany Bay City Council (Claimant) Farnworth Holdings Pty Limited (Opponent) FILE NUMBER(S) : CA 40729/03 COUNSEL : T Hale SC/J Thornton (Claimant) T Robertson SC/G Newport/E Yam (Opponent) SOLICITORS : Houston Dearn O'Connor (Claimant) Wilshire Webb (Opponent) LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 10005/02 FILE NUMBER(S) : LOWER COURT Lloyd J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40729/03 LEC 10005/02 IPP JA BRYSON JA CRIPPS AJA Friday 14 May 2004 BOTANY BAY CITY COUNCIL v FARNWORTH HOLDINGS PTY LTD Judgment 1 IPP JA: This is an application for leave to appeal and an appeal against a decision of Lloyd J. 2 Lloyd J's decision was given pursuant to an appeal to his Honour under section 56A of the Land and Environment Court Act 1979 from a decision of Commissioner Nott. The claimant contends that Lloyd J erred by not finding that the Commissioner failed properly to apply clause 11 of the Development Control Plan (the "DCP") when considering whether the claimant's refusal of the opponent's development application for a subdivision should be overturned. The claimant contends, alternatively, that the Commissioner failed to give proper reasons for his decision to grant the application in the terms that he did. The claimant submits that these errors were errors of law and, hence, are subject to appeal. 3 The claimant submits that the Commissioner intended to apply cl 11 of the DCP but did not do so in accordance with its terms. I agree that the Commissioner intended to apply cl 11, but I do not accept that he did not apply it properly. 4 If one has regard to the way in which the case was run before the Commissioner, it appears that the claimant took only three points in regard to the application of the clause. 5 Firstly, it was argued that, in accordance with its terms, the clause applied only in exceptional circumstances and the Commissioner did not find that exceptional circumstances existed. 6 Secondly, the claimant contended that, contrary to the relevant criterion in cl 11, the Commissioner did not find that the subdivision would result in a variation of the relevant development standard that would undermine the objectives of the DCP. 7 Thirdly, the claimant contended that, contrary to the relevant criterion in cl 11, the Commissioner did not find that the subdivision would result in a variation of the relevant development standard that would establish an undesirable precedent within the city of Botany Bay. 8 In his reasons, Lloyd J identified exceptional circumstances that, he considered, the Commissioner found. In my opinion, his Honour was correct in this regard. 9 As regards the argument that there was no finding concerning the undermining of the objectives of the DCP, I should say that those objectives are stated in extremely general terms and it is quite plain, when one has regard to the reasons of the Commissioner as a whole and his ultimate decision, that the Commissioner was of the view that the objectives of the DCP would not be undermined. 10 The third point concerns the establishment of an undesirable precedent within the city of Botany Bay. In my opinion, a clear finding is apparent from the Commissioner's reasons to the effect that an undesirable precedent would not be established. 11 As to whether the Commissioner gave proper reasons for his decison, I do not agree with Lloyd J that commissioners have a less onerous duty to give reasons than judges. Nevertheless, I am satisfied that the reasons given are adequate. 12 I would add that this matter does not, in my opinion, require a necessary decision on any question of principle. The issues involved are not of particular importance and I do not consider that a full appeal is required at a third level for this matter. 13 For all those reasons, I would refuse leave to appeal. 14 BRYSON JA: I agree with Ipp JA. 15 CRIPPS AJA: I agree with Ipp JA. 16 IPP JA: The order of the Court will be that the application for leave to appeal is dismissed with costs. 17 After those orders were delivered the Court was informed that a Calderbank offer had been made. The opponent thereupon sought an order for indemnity costs. After argument had taken place on this issue the Court varied the order for costs previously made by ordering that the costs as from 3 May, 2004 – ie after the refusal of the Calderbank offer – would be paid by the claimant on an indemnity basis. The Court stated that it came to this conclusion not only by reason of the refusal of the Calderbank offer, but because of the intrinsic lack of merit in the appeal. ********** Last Modified: 05/18/2004 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.