In the recent case of Statewide Planning Pty Ltd v Penrith City Council (No. 3)  NSWLEC 109 (Statewide Planning), the Land and Environment Court (LEC) heard the Council’s Notice of Motion (NOM) for costs against the developer who had amended plans annexed to the Class 1 Appeal 11 times in the course of a Class 1 development appeal proceeding that lasted almost two years. The judge presiding the hearing for the NOM, Justice Sheahan, found: –
- the conduct of the developer had gone beyond ‘the usual argy bargy’ between a party in Class 1 Appeal proceedings;
- the developer should pay the Council’s legal costs in respect of the whole proceedings, in addition to any costs thrown away by reason of making those amendments; and
- the Council was permitted to bring the NOM even though it was filed outside of the deadline permitted by the LEC’s Practice Note – Class 1 Development Appeals.
In Statewide Planning, the developer commenced the Class 1 appeal on 21 September 2015 after its development application was deemed refused by Council. Due to multiple and serious deficiencies with the development application, the developer amended the application 11 times before the hearing, which led to a domino effect of delayed expert’s reports and adjournments of proceedings. Worse, the developer had failed to seek leave from the Court before amending the application on multiple occasions.
In March 2017, Commissioner Brown approved the development subject to the developer proposing conditions satisfactory to the Council. The parties then engaged in protracted negotiations over those conditions, which the Council argued was brought about by the developer failing to propose conditions in accordance with the Commissioner’s directions. Finally, the Commissioner entered the final judgment in August 2017 after the parties had agreed to the conditions by consent. The final judgment, however, made no mention of a costs order.
In October 2017, the Council filed the NOM to seek a costs order for the whole of the Class 1 Appeal proceedings, self-evidently outside of the 28-day deadline allowed by the Practice Note. In arguing an extension of deadline should be granted, the council argued the delay was due to the sheer volume of material that need to be collated, given the arduous and byzantine history of substantive proceedings.
Sheahan J ordered the developer to pay Council’s costs incurred as a result of the repeated amendments under section 8.15 of the Environmental Planning and Assessment Act 1979 (EPA Act). On the question of whether the repeated amendments could also justify the making of a costs order for the whole of the proceedings, His Honour rejected the developer’s argument that those amendments were within the ordinary course of the Class 1 Appeal proceedings, and instead found it was fair and reasonable for the developer to pay the Council’s costs in respect of the entire Class 1 Appeal proceedings.
On the issue of time limit, His Honour affirmed the decision of Basten JA in Tomko v Palasty (No.2) NSWCA 369 (Tomko) as the authority on exercising discretion grant leave for NOM filed out of time. In Tomko, Basten JA found the Court may consider the following 4 non-exhaustive factors (at ):
- the length of the delay;
- the reason for the delay;
- whether the applicant has a fairly arguable case, and
- the extent of any prejudice suffered by the respondent to the application.
As Sheahan J accepted that there was ‘an extraordinary mass of documentary material’ that needed to be filed in support of the NOM, and the developer was not able to establish that it had suffered any prejudice as a result of the delay, His Honour allowed the NOM to be heard notwithstanding it was filed out of time.
In Marinkovic v Rockdale City Council  NSWLEC 71, Preston CJ had found making amendments to plans during the ‘usual course’ of Class 1 appeal proceedings would not, by itself, lead to an adverse costs order. The effect of Sheahan J’s decision in Statewide Planning is clearly putting repeated and protracted amendments to the originating application beyond the ‘usual course’ of Class 1 appeal proceedings.
On the issue of the time limit for filing NOM after the conclusion of a Class 1 Appeal, our firm had, in TL & TL Tradings Pty Ltd v Parramatta City Council  NSWLEC 142 (TL & TL), raised the argument any NOM should be filed within 14 days from the entering of the final judgment under rule 36.15(3A) and (3C) of the Uniform Civil Procedure Rules 2005 (UCPR).
Unfortunately, neither side raised the time-limit issue with rule 36.15(3A) and (3C) in Statewide Planning and the Court consequently did not consider the apparent conflict between the time limit permitted under the Practice Note and the time limit permitted under the UCPR.