Stop Press - Barton v Orange City Council – damned if you do and damned if you don’t

Council liable for costs despite entering submitting appearance

Prior to Barton v Orange City Council, the filing of a submitting appearance by a council, in proceedings brought challenging the validity of a Development Consent was thought to provide the council some measure of protection in an application for costs.

General guidelines were set by Justice Biscoe in 2006, in the matter of Cutliffe v Lithgow City Council. In most instances, a council could limit its costs to no more than the costs associated with the declaration of invalidity if it entered a submitting appearance. Costs expended by the applicant and consent holder on the question of discretion and subsequent orders could be avoided.

Barton v Orange City Council

Biscoe J held that Development Consent for the construction of a second storey addition to the rear of a dwelling house was invalid and made an order for demolition of the works carried out in accordance with that consent. The council entered a submitting appearance two months after the proceedings were commenced but well before the hearing of the matter.
Following the Court’s findings, the council agreed to pay the other party's costs relating to the declaration of invalidity, but it opposed any order that would make it liable for the costs expended on the issue of discretion and the consequential demolition order.

Biscoe J referred to a passage in Cutliffe, where Sydney Harrison Pty Limited v City of Tea Tree Gully (No. 2) was cited:

"There are steps by which a planning authority is able to minimise costs of any proceedings seeking to satisfy the Development Consent.  It may indicate to a plaintiff they recognise that there are defects in the manner in which it has handled an application and might even be able to assist a Court in framing appropriate orders with, of course, proper notice to the person who has the benefit of the Development Consent."

No such admission was made or assistance rendered, other than to make available to the parties and to the Court documents relevant to the complaint that was made by the applicants. Such documents were in any event, not produced until the hearing in response to a Notice to Produce.

Biscoe J outlined 5 reasons why the Council's conduct took the matter beyond the general guidelines in Cutliffe. 

  1. The conduct of the council officers in processing the Development Application fell well short of that which could be expected of a reasonably competent official. The applicants were not notified. The council officer participated in the preparation of the Statement of Environmental Effects (SEE) in a way that contributed to the failure to identify the severe impact. The Council failed to identify the severe impact once the complete application was before it.
  2. The conduct of the council officers in dealing with the applicant's complaints was careless. The applicant was assured that a stop work request would be issued. The Council drafted a "Stop Work" letter of 12 April 2007 which was never sent. This letter only came to light at the hearing in response to the Notice to Produce.
  3. The council's conduct during the proceedings fell short of that which might be expected from a model litigant. It failed to produce all documents promptly and informally. It refused to make its officers available for interview. It did not itself bring evidence forward that would have assisted the Court in understanding the basis upon which the council's decision had been made. While strictly speaking, the council may have complied with the Practice Note concerning the production of documents, these issues were given weight.
  4. The applicants delay in putting the consent holder on notice of their intentions was central to the discretionary argument advanced at trial. The council however had indicated that it was going to send a "Stop Work" letter while the objections were investigated. This was never done. Had the council advised the parties of the existence of the draft letter early in the proceedings, the issue of the delay may not have been argued and ultimately a decision may have been taken that the discretionary argument was not worth pursuing.
  5. The council’s submission that the consent holder’s SEE and shadow diagrams contributed in a way to the invalidity was rejected. The documents were in fact completed by a council officer.

The council was ordered to pay the costs of the applicant and the consent holder and to indemnify the consent holder in respect of her liability for costs to the applicant.

 

Author – Jeff Reilly