Aspect North v Lismore City Council
[2001] NSWLEC 288
•12/14/2001
Land and Environment Court
of New South Wales
CITATION: Aspect North v Lismore City Council [2001] NSWLEC 288 PARTIES: APPLICANT
RESPONDENT
Aspect North
Lismore City CouncilFILE NUMBER(S): 10325 of 2001 CORAM: Cowdroy J KEY ISSUES: Costs :- discontinuance LEGISLATION CITED: Land and Environment Court Practice Direction 1993 para 10
Land and Environment Court Rules 1996 Pt 11 r 5(1)CASES CITED: David Crane and Associates Pty Limited v Kogarah Council [1998] NSWLEC 121;
Duncan v Moore (2000) 107 LGERA 430;
Hayden Theatres Pty Limited v Penrith City Council (1999) 105 LGERA 230;
Menangle Sand & Soil Pty Limited v Wingecarribee Shire Council (2000) 108 LGERA 209;
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622DATES OF HEARING: 7/12/01 DATE OF JUDGMENT:
12/14/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr J Webster (Barriser)SOLICITORS
StacksRESPONDENT
SOLICITORS
Mr J Kildea (Barrister)
Walters Solicitors
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10325 of 2001
CORAM: Cowdroy J
DECISION DATE: 14/12/01
Respondent
1. By Notice of Motion filed on 12 November 2001 the respondent (“the council”) seeks an order from the Court that the applicant pay the council’s costs of the proceedings.
Facts
2. By application class one (“the appeal”) filed on 12 June 2001 the applicant appealed against the council’s refusal of consent to development application 99/93 (“the application”) determined on 13 February 2001. The application was made in respect of a rural landsharing multiple occupancy consisting of 12 proposed dwellings along with 3 existing dwellings on land known as Lot 2 in DP 250624 or 30 Hensen Road, Nimbin (“the site”).
3. Clause 20 of the North Coast Regional Environmental Plan (“the REP”) required the council to prepare a rural land release strategy and have the strategy approved by the Director General of the Department of Urban Affairs and Planning (“DUAP”) before a Local Environmental Plan (“LEP”) could be prepared to allow for rural residential development. On 12 December 2000 the council resolved to adopt a draft Rural Housing Strategy (“the strategy”) which was intended to become an amendment to the LEP. The strategy was to operate in conjunction with State Environmental Planning Policy 15 (“SEPP 15”).
4. On 13 February 2001 the council refused the application because the proposed development was not in a suitable area as required by the strategy and because of inadequate road infrastructure. Consequently, the applicant initiated the appeal.
5. On 29 May 2001 a Statement of Issues was served on the applicant. Such statement listed 23 issues to be determined by the Court on the appeal. The proceedings were set down for hearing on 4 June 2001 for a period of three days commencing on 26 September 2001.
6. On 10 July 2001 the council resolved to incorporate suggestions made by DUAP to the strategy and to send the strategy to the Director General for further consideration and public exhibition. On 24 August 2001 the applicant received advice from DUAP that the strategy was likely to be approved by it in the next seven days.
7. On 29 August 2001 the council received notification that the applicant would discontinue the proceedings and on 4 September 2001 the applicant discontinued the proceedings. The council submits that it is entitled to be compensated in respect of the costs which it has incurred in its preparation for the hearing of the appeal which was discontinued 22 days prior to the date fixed for the hearing.
Legal principles
8. Generally, in the class 1 jurisdiction of the Court it will not be appropriate for the Court to order a party to pay costs unless there are demonstrated exceptional circumstances: see Land and Environment Court Practice Direction 1993 par 10 (“the Practice Direction”).
9. However, the Court may order the discontinuing party to pay the costs of any party against whom the discontinued claim was brought: Part 11 r 5(1) of the Land and Environment Court Rules 1996. A discontinuance may amount to exceptional circumstances for the purposes of par 10 of the Practice Direction. Each case must be determined against the facts in order to determine whether it can truly be said that ‘exceptional circumstances’ exist.
10. In Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 McHugh J adopted a test of reasonableness to guide the discretion of the Court on an application for costs following a discontinuance. This test has been adopted and followed in this Court in Hayden Theatres Pty Limited v Penrith City Council (1999) 105 LGERA 230 and Duncan v Moore (2000) 107 LGERA 430.
11. Therefore, if the discontinuing party has conducted the litigation in a manner that could be reasonably expected of it then it will generally be appropriate for the Court to make no order as to costs: see David Crane and Associates Pty Limited v Kogarah Council [1998] NSWLEC 121.
12. Unreasonable conduct by the discontinuing party may lead to an order for costs in favour of the other party. However, this entitlement may be lost if that party has acted unreasonably or some supervening event beyond the control of the parties has occurred: see Lai Qin; see also Menangle Sand & Soil Pty Limited v Wingecarribee Shire Council (2000) 108 LGERA 209 at 213.
Submissions
13. The applicant submits that the conduct of the council disqualifies any entitlement it may have for its costs. The applicant relies upon the fact that when the application was refused by council, such refusal was based upon two grounds. However as preparation for the appeal progressed the council raised a total of 23 issues for resolution by the Court.
14. The applicant submits that the expansion of the council’s grounds for objection was unreasonable, especially when there was dialogue between the applicant and the council preceding the hearing date and a mediation was suggested by the applicant’s solicitor on 20 July 2001. The offer to mediate was not accepted. Instead the attention of the council’s experts was directed to the preparation of reports for the anticipated hearing.
15. In response the council submits that it was entitled to raise any issues which it considered appropriate for the appeal. It also relied upon the fact that its experts had been prevented from gaining access to the subject site due to a lack of co-operation by the applicant.
Findings
16. It is apparent that the applicant sought to have the application determined by the council prior to the implementation of the strategy. The Court is satisfied that the applicant withdrew from the proceedings when it became clear to it following its inquiries of DUAP that the strategy was likely to be implemented prior to the hearing of the appeal. The implementation of the strategy would have made it exceptionally difficult for the appeal to succeed.
17. The question for determination is whether having examined all the facts, the Court can determine that there are ‘exceptional circumstances’ which would warrant an order for costs. In the present instance the appeal was discontinued three weeks prior to the hearing for a reason that was based upon consideration of a legal issue, namely the implementation of the strategy.
18. The decision to terminate the appeal arose as a result of the inquiry made by the applicant to DUAP. There is no reason advanced for the failure of the applicant to make such inquiry at an earlier time. Had it done so it may well have been that the appeal would not have been set down and the council’s costs of preparation could have been avoided. In these circumstances the Court is satisfied that prima facie the council is entitled to an order to compensate it for the costs it has incurred unnecessarily.
19. However, it would seem unusual that 21 new issues could have arisen in respect of the appeal if they were not considered sufficiently important to warrant rejection of the application from the outset. In the absence of any explanation by the council for its decision to expand the issues substantially beyond those which were relied upon in refusing consent the Court considers that any costs associated therewith should not be recovered.
20. Accordingly, the Court concludes that the council is entitled to an order for costs but the amount of such costs should be reduced to reflect the council’s conduct in expanding the issues in a manner which could not have been anticipated when the appeal was lodged. The order for costs which the Court will make will reflect a proportion of the costs which the Court considers it appropriate for the applicant to pay in view of the discontinuance.
Orders
21. The Court orders:-
1) The applicant pay 50% of the costs of the respondent.
2) The applicant pay the costs of the motion.
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