Background
Neighbours commenced Class 4 proceedings concerning construction of a two-storey house and pool at 6 Bulkara Road, Bellevue Hill. They sought to invalidate a complying development certificate (CDC), alleging it approved impermissible roof or terrace works and other non-compliances, and sought civil-enforcement relief concerning alleged unauthorised works and damage to their adjoining properties.
The parties later resolved the substantive dispute by consent orders. Those orders required engineering, boundary, pathway, retaining-wall, fencing and repair works, as well as landscaping and replacement of sliding doors with fixed windows. The summons was otherwise dismissed, with costs reserved. Both the applicants and the owner then sought costs orders.
The Court’s Holding
Pritchard J made no order as to costs. Although the proceedings had formally been dismissed, the Court held that this was not a case for the default rule requiring the applicants to pay the respondent’s costs. Nor had the respondent effectively surrendered or capitulated so as to justify awarding the applicants their costs.
The consent orders reflected a compromise. The applicants obtained much of the practical rectification sought in the civil-enforcement claim, but some requested relief was not granted, rectification was broadly consistent with what the builder had indicated would occur near completion of construction, and the settlement also benefited the respondent by addressing encroachments. The CDC remained valid, and the respondent’s earlier development applications for a rooftop terrace were consistent with his position that the CDC itself approved only a non-trafficable roof. Both sides had acted reasonably in commencing, defending and continuing the proceedings until settlement.
Key Takeaways
- A dismissal by consent does not automatically determine who truly succeeded for costs purposes.
- Where Class 4 judicial-review and enforcement proceedings end in compromise rather than capitulation, no order as to costs will commonly be appropriate.
- The applicants’ concerns about roof access and sliding doors were not entirely unfounded, so the respondent was not entitled to costs of the judicial-review claim.
Why It Matters
The decision applies the distinction between a party’s effective surrender and a negotiated settlement in planning litigation. Even where consent orders provide substantial practical relief, costs will not necessarily follow if both parties gained and gave ground.
It also underscores the importance of timely pre-litigation engagement, while recognising that parties challenging a CDC may reasonably commence proceedings within the statutory timeframe.