Land and Environment Court New South Wales Medium Neutral Citation: Woollahra Municipal Council v Sahade (No 2) [2012] NSWLEC 275 Hearing dates: 26 November 2012 Decision date: 26 November 2012 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court orders the respondent to pay the applicant's costs of the proceedings, including the costs of the motion for costs of the proceedings Catchwords: COSTS - civil enforcement proceedings - Council successful in establishing statutory breach and obtaining relief remedying the breach - Council advanced multiple reasons to establish breach - Council successful on some, not others - whether there should be apportionment - no apportionment appropriate - usual order for costs made Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Brown v Randwick City Council (No 2) [2012] NSWLEC 28 Parramatta Business Freedom Association v Parramatta City Council (No 2) [2012] NSWLEC 176 Category: Costs Parties: Woollahra Municipal Council (Applicant) Mrs Rita Sahade (Respondent) Representation: Mr P R Rigg (Solicitor) (Applicant) Mr M V Sahade (Barrister) (Respondent) Norton Rose (Applicant) Oliveri Lawyers (Respondent) File Number(s): 40587 of 2011 Judgment 1Woollahra Municipal Council ('the Council') has been successful in these Class 4 proceedings in proving Mrs Sahade breached the Environmental Planning and Assessment Act 1979 ('EPA Act') in constructing a stairway without development consent and in obtaining a declaration of breach and an injunction to remedy the breach by demolishing the stairway. 2The Council now seeks an order that Mrs Sahade pay the Council's costs in accordance with the usual order in Class 4 proceedings that costs follow the event. 3Mrs Sahade does not agree. She submits that each party should pay their own costs on the basis that the Council was not successful, and Mrs Sahade was successful, on particular issues. The parties' respective success and lack of success on the issues balance out, making it appropriate that each party bear their own costs in the proceedings. 4I do not consider this is a case where the Council as the successful party should be deprived of its costs. 5The Council's case was simple. Mrs Sahade breached s 76A of the EPA Act in constructing the stairway without first obtaining development consent. The requirement to obtain development consent came from Woollahra Local Environmental Plan 1995 ('the LEP'). The land on which the stairway was located was zoned Residential 2(a) Residential A under the LEP, in which zone development consent is required for development for the purpose of a dwelling house. The stairway was constructed for the purpose of providing access to Mrs Sahade's dwelling house. It therefore required development consent under the LEP. 6However, certain development is exempted from the need for development consent, by State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ('the SEPP'). Section 76(3) of the EPA Act states that if development is exempt development, the development may be carried out in accordance with the SEPP without the need for development consent. 7The Council, in order to succeed in establishing a breach of s 76A of the EPA Act, had to affirmatively prove that development consent was required under the LEP to construct the stairway, but was not obtained, as well as prove that the stairway was not exempt development under the SEPP. 8In order to establish that the stairway was not exempt development, it was sufficient for the Council to establish that the stairway did not satisfy any one of three requirements stated in cl 1.15 of the SEPP. Clause 1.15 states that development is exempt development for the purposes of the SEPP if the development, firstly, is specified in an exempt development code, secondly, meets the standards specified for that development and, thirdly, complies with the requirements of Div 2 of Pt 1 of the SEPP for exempt development. Only if all three requirements are satisfied will the development be exempt development. 9The Council's case was originally that the stairway did not satisfy each of the three requirements. 10As to the first, the Council contended that the stairway was not development of a type specified in the exempt development code, relevantly in cl 2.55, neither being a pathway nor being associated with a terrace or verandah. I found against the Council on this contention. 11As to the second, the Council contended the stairway did not meet the development standards for pathways specified in cl 2.56 of the SEPP. I found against the Council on this contention. 12As to the third, the Council contended that the stairway did not comply with the requirement for exempt development in cl 1.16(3)(b) of Pt 1 Div 2 of the SEPP. I found in favour of the Council on this contention. 13The Council, having established that the stairway did not satisfy all of the three requirements (it did not satisfy the third), was therefore successful in establishing that the stairway was not exempt development for the purposes of the SEPP. 14Hence, the requirement for development consent in the LEP applied. The Council established that Mrs Sahade did not obtain development consent before constructing the stairway, and hence, was in breach of s 76A of the EPA Act. 15Viewed properly, the contentions on which the Council was unsuccessful were not discrete or separate issues but rather mere components of the one issue of whether the stairway was exempt development for the purposes of the SEPP. 16The Council bore the onus on that issue of establishing that the stairway was not exempt development for the purposes of the SEPP. In discharge of that onus, the Council needed to establish only that one of the three requirements in cl 1.15 was not satisfied. The Council was successful in showing that one of the three requirements was not satisfied. This was sufficient. The fact that the Council contended that two other requirements were also not satisfied, but was unsuccessful in these contentions, does not alter the conclusion that the Council was successful in discharging its onus of establishing that, at least, one of the three requirements was not satisfied and hence that the stairway was not exempt development for the purposes of the SEPP. 17This is not a case where it is appropriate to depart from the usual rule that costs follow the event on the ground that the successful party has been unsuccessful on some discrete issues. The principles governing apportionment have been summarised in numerous judicial decisions, including by myself in Brown v Randwick City Council (No 2) [2012] NSWLEC 28 at [10] and [11] and by Biscoe J in Parramatta Business Freedom Association v Parramatta City Council (No 2) [2012] NSWLEC 176 at [5]. 18In this case, I do not consider that the contentions on which the Council did not succeed were 'clearly dominant or separable' or 'clearly discrete' from those on which the Council did succeed. As I have explained above, they were merely but other reasons supporting the conclusion that the stairway was not exempt development for the purposes of the SEPP. 19I also consider that the contentions on which the Council did not succeed were clearly arguable and cannot be said to have lacked any real merit. The questions of construction of cl 2.55 and cl 2.56 of the SEPP had not been the subject of judicial interpretation before. The Council did not act unreasonably in raising these questions of construction of these clauses. 20I also do not consider that the questions of construction of the clauses occupied such a significant time at the hearing that separate identification and estimation of the time spent on the questions is realistic. 21For these reasons, I am not persuaded that it is appropriate to depart from the usual order that the unsuccessful party in the proceedings, Mrs Sahade, should pay the costs of the successful party, the Council. 22Accordingly, the Court orders the respondent to pay the applicant's costs of the proceedings, including the costs of the motion for costs of the proceedings. ********** 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: 21 December 2012