Land and Environment Court New South Wales Medium Neutral Citation: Pacific Towers Real Estate Pty Ltd v Waverley Council [2012] NSWLEC 212 Hearing dates: 11 September 2012 Decision date: 11 September 2012 Before: Sheahan J Decision: 1. The respondent Council's Notice of Motion filed 31 August 2012 is upheld. 2. The applicant company's summons and points of claim are struck out, and these proceedings are summarily dismissed, pursuant to Rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005. 3. The applicant is ordered to pay the respondent's costs of and incidental to these proceedings and this Notice of Motion, including today's hearing, on a party-party basis, as agreed or assessed. Catchwords: JURISDICTION: Application to strike out proceedings for lack of any cause of action being disclosed Legislation Cited: Land and Environment Court Act 1979 Local Government Act 1993 Uniform Civil Procedure Rules 2005 Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; (2011) 181 LGERA 166 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Hoxton Park Residents' Action Group Inc v Liverpool City Council Hoxton Park [2010] NSWSC 1312; (2010) 178 LGERA 275 Spencer v The Commonwealth of Australia [2010] HCA 28; (2000) 241 CLR 118 Category: Principal judgment Parties: Pacific Towers Real Estate Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Mr T J Hillard (Director of Applicant) Mr C Ireland, Barrister (Respondent) Not applicable (Applicant) Yeldham Price O'Brien Lusk (Respondent) File Number(s): 40702 of 2012 Judgment 1The applicant company is a corporate trustee for the Hillard Family Superannuation Fund, and was represented in court today by its director and secretary, Thomas John Hillard. 2The applicant company is disappointed in, and frustrated by, its dealings with the respondent Council over a development application (DA) made by Guo Bang Weng, to whom the company negotiated, in October 2011, to lease three shop units in its property at 527 Old South Head Road, on the northern corner of Dover Road (and the eastern side of Old South Head Road), Rose Bay. 3It commenced these proceedings by summons dated 11 July 2012, supported by an affidavit Mr Hillard had sworn on that date, and Points of Claim (POC) he subsequently filed on 20 August 2012. 4On 31 August 2012 the respondent Council filed the Notice of Motion (NOM) presently before the court, seeking an order that the proceedings be summarily dismissed, pursuant to Uniform Civil Procedure Rules 2005 r 13.4(1)(b), and with costs, on the grounds that neither the summons nor the POC disclose(s) any reasonable cause of action. 5Mr Weng's DA (562/2010) was lodged on 25 November 2011, and sought a change of use and associated fit out works, so as to turn what had been a video shop, among a range of shops, into a grocery shop, a type of business apparently much needed in Rose Bay. The estimated cost of the proposal was $20,000. 6The applicant company gave owner's consent, the Owners Corporation later expressed its support, and detailed sketch plans were submitted (apparently negotiated over some time with Council officers). 7In accordance with the relevant Development Control Plan, the DA was notified, and only one negative submission, regarding parking issues, was made - by the Rose Bay Precinct on 15 December 2011. 8That submission was apparently not referred to the applicant for consent, nor to the applicant company, until the DA was chased up 8 weeks after lodgement. Mr Hillard responded to it in a letter to Council on behalf of the Owners Corporation on 4 February 2012. The Corporation also expressed to Council its support for the change of use, and it wrote to the Precinct co-ordinator on 20 February 2012, seeking withdrawal of the "objection". It was withdrawn on 23 February 2012. Council officers recommended approval on conditions, and Development Consent (DC) was granted, under delegation, on 13 April 2012 (DC 562/2011), 139 days after lodgement of the DA. 9However, on 20 March 2012, solicitors acting for Mr Weng, and his company G & B Groceries Pty Ltd, had advised solicitors for the applicant company that they would not proceed with the proposed lease, "because of the indefinite delay by the Council in issuing development approval". 10The applicant company's solicitors, Goldrick Farrell Mullan, wrote to Council, on 26 March 2012, blaming it for the consequential loss and damages sustained, and seeking compensation. It was suggested that DC should have been granted by 6 January 2012 (approximately 40 days after the lodgement of the DA). 11Council's solicitors responded on 11 April 2012 that no cause of action had been identified by the letter, and that the proponent could (perhaps should) have appealed to this court against the deemed refusal of the DA. 12On 30 June 2012, the applicant company appealed to the Mayor and councillors, in a letter particularising its complaints about the processing of the DA. 13The summons and POC the applicant company has filed particularise the "relief claimed" by the applicant company in financial terms, similar to those in the Goldrick Farrell Mulllan letter of 30 June, but including additional legal costs for the work of those solicitors, and court fees. 14The POC assert that: (1)the Precinct submission was "vexatious", had no substance or supporting evidence, was "rambling and frivolous", "unfair ... and hypocritical", and was "a rushed delaying tactic" aimed at the DA; (2)the Council "was influenced and acted on that letter ... by internal or external influences", but "took no action" on the DA when the letter was withdrawn; (3)the Council "acted in a vexatious manner in processing and dealing with" the DA, and was generally "inefficient" and "incompetent" in doing so; and (4)"Council refuses to respond to our requests to discuss and resolve" matters in issue between Council and the applicant company. 15Mr Hillard attached to the POC an extensive diary of his actions to expedite assessment of the DA, consult and accommodate the precinct activists, and preserve the leasing prospect. 16Four days after the POC were filed, i.e. on 24 August, Council's present solicitors wrote to Mr Hillard, and suggested that those POC did not "disclose a reasonably arguable cause of action" against the Council, and that the applicant should consent by 29 August to dismissal of the proceedings, with each party to pay its own costs. The present NOM, and request for a costs order, were foreshadowed, if the matters were not to be so resolved. 17The respondent's claims (1) that the applicant company lacks standing to bring the proceedings, and (2) that the court lacks jurisdiction to entertain them, were set out. The applicant's reliance on s 179 of the Local Government Act 1993 to support the claim for the losses particularised, as distinct from "expenses", was specifically challenged, and it was suggested that any benefit granted by that section lies with an aggrieved applicant for a Council approval, not the landowner. 18Accordingly, the letter said, the applicant company's claim was "doomed to fail". 19The NOM was filed on 31 August, and Mr Hillard filed Points of Defence (POD) in response to it on 7 September. Essentially the POD argue that the applicant company, compared with its tenant, spent more time on, and committed more property, research and cash to, the DA, and that the NOM and Council's stand on the matter have only aggravated Mr Hillard's disquiet about the Council. The POD attach a copy of Mr Hillard's response of 29 August to the solicitors' letter of the 24th, in which he offered to sell the three shop units to Council, and/or to attend a conciliation conference to resolve the dispute. 20The merits of the complaints and claims of the applicant company are not before the court today for decision or comment, only notation as important background to the consideration of Council's NOM. 21Much of what the Council's solicitors put in their letter was put to the court again today by counsel for the Council, and his submissions were fortified by well-known relevant cases, notably General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, and, more recently, Spencer v The Commonwealth of Australia [2010] HCA 28; (2000) 241 CLR 118, Hoxton Park Residents' Action Group Inc v Liverpool City Council [2010] NSWSC 1312; (2010) 178 LGERA 275, and NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; (2011) 181 LGERA 166. 22Mr Hillard did not argue authority today, but, at the court's request, he handed up the notes on which he based his oral submissions. As he put his position today, the applicant company had "more ownership of the DA" than the tenant, especially as his company committed some $30,000 to upgrading the subject shopfronts in support of the tenant's plans for the site. 23He sought an order referring the matter to a conciliation conference. 24Even assuming such a resolution process were appropriate to the dispute at hand, no such order can be made in the absence of the court finding jurisdiction to deal with the dispute at all. 25I have closely examined all Mr Hillard's materials, and re-examined the relevant cases in this and higher courts. While his grievances are sincerely held, and there may be some remedy available to him, it, regrettably for him and his family, can not be found in this court - under neither the Local Government Act 1993 (ss 179 and/or 677), nor the Land and Environment Court Act 1979, (ss 16(1A), 20 or 22). 26A damages action in these present circumstances is, quite clearly and simply, beyond the court's jurisdiction. Conclusion and Orders 27The court, therefore, concludes that the following orders are appropriate: 1. The respondent Council's Notice of Motion filed 31 August 2012 is upheld. 2. The applicant company's summons and points of claim are struck out, and these proceedings are summarily dismissed, pursuant to Rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005. 3. The applicant is ordered to pay the respondent's costs of and incidental to these proceedings and this Notice of Motion, including today's hearing, on a party-party basis, as agreed or assessed. 28I return Mr Hillard's notes, and advise that I will publish these reasons, hopefully later today. ********** 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. Decision last updated: 12 September 2012