Defence Housing Australia v Randwick City Council (No 3) [2013] NSWLEC 179

Land and Environment Court New South Wales

Medium Neutral Citation: Defence Housing Australia v Randwick City Council (No 3) [2013] NSWLEC 179 Hearing dates: 21 October 2013 Decision date: 21 October 2013 Jurisdiction: Class 1 Before: Pain J Decision: See paragraph 22 Catchwords: COSTS - whether court should exercise discretion to award costs in relation to s 56A appeal under rule 3.7 Legislation Cited: Environmental Planning and Assessment Act 1979 s 89(2), s 97(1), Land and Environment Court Act s 56A Land and Environment Court Rules 2007 r 3.7 Cases Cited: Defence Housing Australia v Randwick City Council [2012] NSWLEC 1181 Defence Housing Australia v Randwick City Council [2013] NSWLEC 59 Latoudis v Casey (1990) 170 CLR 534 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Category: Costs Parties: Defence Housing Australia (Appellant) Randwick City Council (Respondent) Representation: Ms A Allars SC (Appellant) Mr S Flanigan (Respondent) Piper Alderman (Appellant) Norton Rose Australia (Respondent) File Number(s): 10919 of 2012

EX TEMPORE Judgment 1In a merits appeal determined by two Commissioners of the Court Defence Housing Australia v Randwick City Council [2012] NSWLEC 1181, Defence Housing Australia's (DHA) appeal was dismissed on the basis that the Court lacked jurisdiction under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) because the DA was a Crown DA. DHA (or Randwick City Council) could seek review by the Joint Regional Panel (the Panel) under s 89(2) of the EPA Act. The Commissioners also considered the merits issues identified by the parties and determined these in favour of DHA. 2The subsequent history of the matter is identified in the affidavit of Mr Andrew Price, solicitor, dated 16 August 2013 read by DHA. DHA approached the Panel when the Council did not. By letter dated 12 October 2012 from Mr Marcus Ray, Executive Director, Assessment System General Counsel of the Department of Planning and Infrastructure (the Department), the Regional Panels Secretariat notified DHA that it had not accepted the referral because the Panel did not have jurisdiction. The letter advised that, having obtained the advice of the Crown Solicitor's Office, it was of the view that the DA was not a "Crown development application". The summons commencing the appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) was filed earlier by DHA on 14 September 2012. 3In the s 56A appeal before me DHA submitted the DA was not a Crown DA. I accepted that in the exercise of my discretion this position could be put, albeit contrary to the position submitted in the merits appeal before the Commissioners. I determined that the DA was not a Crown DA and was able to be dealt with within the Court's jurisdiction in Defence Housing Australia v Randwick City Council [2013] NSWLEC 59. The matter was remitted to the Commissioners for final consideration of any outstanding merits matters, if any. Consent orders granting conditional development consent were made on 8 May 2013 without the need for a further hearing. 4DHA seeks its costs of the s 56A appeal on the basis that it was successful on the question of law before me. The Council opposes such an order and seeks its costs of the s 56A appeal. 5Rule 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) applies to Class 1 proceedings. No order for costs should be made unless fair and reasonable to do so in the circumstances, r 3.7(2). Rule 3.7 provides: 3.7 Costs in certain proceedings (1) This rule applies to the following proceedings: (a) all proceedings in Class 1 of the Court's jurisdiction, ... (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.