LOCKLEYS HOLDINGS (SA) PL v CITY OF PORT ADELAIDE ENFIELD [2011] SAERDC 3 (28 January 2011)

Last Updated: 1 February 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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LOCKLEYS HOLDINGS (SA) PL v CITY OF PORT ADELAIDE ENFIELD

[2011] SAERDC 3

Judgment of Her Honour Judge Cole

28 January 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal lodged against a s 84 notice served on the appellant by the Council - issues between the parties resolved - both parties have applied for an order as to costs - costs order made in favour of respondent.

Development Act 1993, referred to.

One.Tel Ltd & Ors v Deputy Commissioner of Taxation [2000] FCA 270, considered.

LOCKLEYS HOLDINGS (SA) PL v CITY OF PORT ADELAIDE ENFIELD
[2011] SAERDC 3

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter is an appeal by Lockleys Holdings (SA) Pty Ltd (Lockleys Holdings) against a notice served upon it by the City of Port Adelaide Enfield (the Council) pursuant to s 84 of the Development Act 1993. The substantive issues between the parties have been resolved. The Council has withdrawn the s 84 notice, and the appellant will discontinue its appeal. The only outstanding matter is the question of legal costs. Both parties have applied for an order for costs.

The Facts

2. The parties provided the Court with a document setting out a chronology and agreed facts. I will set it out in full.

Event Date

Lockleys Holdings (SA) Pty Ltd (“the Appellant”) purchased the land comprised and described in Certificate of Title Register Book Volume 5690 Folio 122 and Volume 5442 Folio 585, known as 541-543 Regency Road, Sefton Park (“the Land”).	27 June 2007
The Council’s officers inspected the Land.	3 July 2007
The Appellant submitted a development application dated 19 July 2007 described by the Council as “change of use to a builder’s yard, comprising fabrication, offices, equipment storage and truck and trailer storage/parking with associated car parking, 3m – 4m high fencing and landscaping” (“the Development Application”).	7 August 2007
The Council made a request under s39(2) of the Development Act 1993 for further information.	18 September 2007
The Council issued the enforcement notice the subject of the appeal to the Appellant (“the Enforcement Notice”).	8 January 2008
The Appellant filed a Notice of Appeal against the Enforcement Notice (“the section 84 Appeal”).	11 January 2008
The Appellant requested the revocation of the Enforcement Notice by letter to the Council in light of the Development Application.	14 January 2010
The Court made an Order suspending the directions in the Enforcement Notice.	16 January 2008
The Solicitors for the parties agree on a proposal for the conduct of the matter and the Development Application.	18 – 22 January 2008
The Council made a further request under s 39(2) of the Act for further information.	22 January 2008
The Directions Hearing listed for 29 January 2008 was adjourned at the Appellant’s request and the Directions Hearing was listed for 6 March 2010.	25 January 2008
The Directions Hearing listed for 6 March 2008 was adjourned at the Appellant’s request and the matter was listed for conference on 3 April 2008.	5 March 2008
The Council received complaints about activity on the land.
The Appellant applied to adjourn the conference listed for 3 April 2008. The Council opposed the adjournment.	2 April 2008
Conference before Commissioner Hodgson. The matter was listed for a further conference on 7 May 2008.	3 April 2008
The further information previously requested by Council is submitted	6 May 2008
Conference before Commissioner Hodgson. The matter was listed for a further conference on 4 August.	7 May 2008
The Council determines that the Development Application is a non-complying form of development.	28 May 2008
The Appellant’s solicitors propose to the Council’s solicitors that the matter is adjourned while an alternative development application including an office element (“the integrated office application”) is lodged with the Council.	27 June 2008
The Appellant meets with Council staff to discuss the proposed integrated office application prior to lodgement.	24 July 2008
Conference before Commissioner Hodgson. A further conference was listed for 10 September 2008.	4 August 2008
The Appellant seeks further preliminary comments from the Council on the merits of the proposed integrated office application prior to lodgement.	8 August 2008
Council responds to the proposed integrated office application requesting further information.	15 August 2008
Conference listed for 10 September 2008 was adjourned (to 5 November 2008) at the joint request of the parties pending the progress of the proposed integrated office application. Although the Council’s solicitor formally sought the adjournment, the Appellant’s solicitor requested that the Council’s solicitor write to the Court seeking the adjournment	9 September 2008

Conference listed for 5 November 2008 adjourned (to 2 December 2008) at the request of the Council (to enable Council to consider further information received late that day) and the parties continued to engage in negotiations to resolve the proceedings.	4 November 2008
Conference listed for 2 December 2008 adjourned (to 12 January 2009) at the request of Appellant	1 December 2008
Conference listed for 12 January adjourned (to 20 January 2009) at the request of the Council to allow the Applicant more time to lodge the integrated office application.	9 January 2009
The Appellant lodged the integrated office application (numbered 040/0119/09) and described by the Council as “integrated office and storage facility”.	19 January 2009
Conference before Commissioner Hodgson. Matter adjourned to further conference on 24 March.	20 January 2009
Conference listed for 24 March 2009 adjourned (at the request of the Council) to 30 June 2009 to allow the 2009 application to be determined by the Council.	17 March 2009
The Council’s Development Assessment Panel resolved to refuse the integrated office application.	3 June 2009
The Appellant appeals the refusal of the integrated office application (“the Planning Appeal”)	30 June 2009
Conference before Commissioner Hodgson. Matter adjourned to 3 November 2009 pending the determination of the Planning Appeal.	30 June 2009
Conference listed for 3 November 2009 adjourned at the Council’s request (to 2 February 2010) whilst the Planning Appeal is determined.	30 October 2009
The Appellant’s solicitor writes to the Council’s solicitor indicating that a fresh Application for the proposed integrated office will be lodged in 2 weeks time.	30 November 2009
Conference listed for 2 February 2010 adjourned at the Council’s request (to 12 May 2010) to allow the Planning Appeal to be determined.	1 February 2010
Determination of the Planning Appeal (Lockleys Holdings (SA) Pty Ltd v City of Port Adelaide Enfield and Gelastopolous) [2010] SAERDC 12).	12 March 2010

Council’s solicitors request that the Appellant advise of its intentions about any appeal to the Supreme Court following the Planning Appeal, the appeal against the enforcement notice and requesting that the use of the land cease.	26 March 2010
The Appellant advises that it will not appeal to the Supreme court against the decision in the planning appeal and is intending to sell the land.	6 April 2010
The Council’s solicitors advise the Appellant’s solicitors of their instructions to pursue the section 84 Appeal if the section 84 Notice is not complied with or the appeal withdrawn, and that costs would be sought in the section 84 proceedings in any event.	4 May 2010
The Appellant’s solicitors advise the Council’s solicitors of the Appellant’s contentions on the defects in the notice and costs of the section 84 proceedings, and the appropriate course of the section 84 Appeal.	12 May 2010
The Council’s solicitors advise the Appellant’s solicitors that Council intends to commence prosecution if the land is not vacated within 1 month.	12 May 2010
Conference before Commissioner Hodgson. Matter adjourned to 7 July 2010 to allow the parties to resolve the matter in anticipation of the land being sold.	12 May 2010
The Council’s solicitors and Appellant’s solicitors negotiate that no further enforcement action will be taken by Council as long as the use of the land is ceased by 13 September 2010	19 – 20 May 2010
The Appellant applies for an adjournment (by agreement) of the conference listed for 7 July 2010, to a date shortly after 13 September 2010 to allow the subject land to be vacated.	26 May 2010
Conference before Commissioner Hodgson. Matter adjourned to 20 October 2010 to allow the parties to negotiate on costs.	15 September 2010
Conference before Commissioner Hodgson. Matter listed for a directions hearing on 4 November 2010. Appellant’s solicitor seeks production of the delegations made by the Council to the author of the enforcement notice.	20 October 2010
Development Plan Consent granted by Council to application made by Appellant for “Demolition of existing structures and construction of two pairs of semi-detached dwellings with ancillary parking, manoeuvring and landscaping”.	20 October 2010
Land vacated.	2 November 2010
Directions hearing. Matter adjourned for further directions on 18 November 2010 to allow the Appellant to particularise its grounds of appeal. Costs of attendance reserved.	4 November 2010
Enforcement Notice withdrawn by the Council.	5 November 2010
Directions hearing. Matter listed for argument on 18 January 2011	28 November 2010

The Act

3. The Act, in s 84(10a) provides, in relation to costs:

(10a) In an appeal against a notice issued by a relevant authority under this section, the Court may make such orders as to costs as it thinks fit.

4. The approach to an application for costs in circumstances such as these was conveniently set out in One.Tel Ltd and Others v Deputy Commissioner of Taxation[1]. At paragraph 6 of his judgement, Burchett J said:

In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.

5. In summary, Mr Levinson, counsel for Lockleys Holdings, argued that the Council had surrendered to Lockleys Holdings by withdrawing the notice. Mr Levinson argued that Lockleys Holdings’ notice of appeal raised a number of grounds to do with the validity of the notice, as well the characterisation of the land use and its alleged illegality, from which the appellant has not resiled. Mr Levinson said that there would have been an application to add a further ground of challenge, relating to the validity of the delegation of power to the Council officer who signed the notice, had the appeal proceeded on the merits. Mr Levinson said that Lockleys Holdings has vacated the land because it has obtained an approval to establish dwellings on the land, and not as a response to the s 84 notice.
6. Mr Levinson argued that, if Lockleys Holdings were not to have their costs, then it would be appropriate for each party to bear their own costs.
7. Mr Billington, counsel for the Council, argued that Lockleys Holdings had surrendered to the Council. Mr Billington pointed out that the s 84 notice had required that Lockleys Holdings cease using the land as a builders yard, and remove from the land all vehicles, materials and items associated with that land use, and that the requirements of the notice had, upon that vacation of the land by Lockleys Holdings on 2 November 2010, finally been complied with. It was only after that compliance that the Council had withdrawn the s 84 notice. Mr Billington pointed to the chronology, and pointed out that the Council had patiently consented to or tolerated numerous adjournments of the conference in the proceedings to enable Lockleys Holdings to explore several other proposed land uses, and that Lockleys Holdings pursued those possibilities, generally speaking, at a fairly leisurely pace.
8. It seems to me, on the basis of the material before me, and having regard to all of the points argued, that it is quite clear that the Council’s objective in issuing the notice has been achieved by Lockleys Holdings vacating the premises. “Surrender” as that word is used in the One.Tel case does not necessarily require that all of the legal points raised on the pleadings have been conceded. Success in the context of an argument in relation to a s 84 notice can mean that the practical outcome sought by the notice has come to pass. In this matter, Lockleys Holdings eventually complied with the s 84 notice. The Council then withdrew the notice because it had no further work to do.
9. Mr Billington sought costs on an indemnity basis from 13 September 2010 to 2 November 2010, on the basis that Lockleys Holdings undertook to vacate the land on or before 13 September 2010, and obtained an adjournment on that basis, but then failed to vacate the land until 2 November 2010. It seems to me that the Council is entitled to costs on an indemnity basis for that period on that basis.
10. There will be an order that the appellant pay the Councils costs of the proceedings on a party/party basis, except for the period from 13 September 2010 to 2 November 2010, in relation to which the appellant is to pay the Council’s costs on an indemnity basis.

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[1] [2000] FCA 270