Belcrib Pty Limited v The Commissioner of the Rural Fire Service of New South Wales

[2004] NSWLEC 697

Land and Environment Court

of New South Wales

CITATION:

Belcrib Pty Limited v The Commissioner of the Rural Fire Service of New South Wales and Anor [2004] NSWLEC 697

PARTIES:

APPLICANT:
Belcrib Pty Limited

FIRST RESPONDENT:
The Commissioner of the Rural Fire Service of New South Wales

SECOND RESPONDENT:
Baulkham Hills Shire Council

FILE NUMBER(S):

40423 of 2004

CORAM:

Pain J

KEY ISSUES:

Costs :- Exercise of the Court's discretion following discontinuance by the Applicant.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 146
Land and Environment Court Act 1979
Land and Environment Court Rules, Pt 11 r 5
State Environmental Planning Policy No 5 -- Housing for Older People or People with a Disability, cl 4(2)(a)
State Environmental Planning Policy (Seniors Living) 2004

CASES CITED:

Jan Yee Australia Pty Limited v Woollahra Council (Bignold J, NSWLEC, 26 March 1997, unreported);
Hamilton v Woollahra Council (Bignold J, NSWLEC, 9 July 1992, unreported);
Re The Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622;
Warringah Shire Council v Hutchison 3G Australia Pty Limited (2003) 126 LGERA 1

DATES OF HEARING:

23/11/2004

EX TEMPORE
JUDGMENT DATE :

11/23/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J. McKee (solicitor) of McKees Legal Solutions

FIRST RESPONDENT:
Mr J. McDonnell (solicitor) of Crown Solicitor's Office

SECOND RESPONDENT:
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

23 November 2004

40423 of 2004 Belcrib Pty Limited v Commissioner Rural Fire Service of New South Wales and Baulkham Hills Shire Council

JUDGMENT

1 Her Honour: The First Respondent is seeking an order that the Applicant pay its costs in relation to these Class 4 proceedings. The Applicant discontinued these proceedings without consent on 29 September 2004. I note that the Council, the Second Respondent, has not appeared at all before me.

Background

2 The Applicant commenced Class 1 proceedings in this Court in February 2004 in relation to the refusal by Baulkham Hills Shire Council of its development application. That related to consent to construct an aged care facility pursuant to State Environmental Planning Policy No 5 -- Housing for Older People or People with a Disability (“SEPP 5”) (now repealed by the State Environmental Planning Policy (Seniors Living) 2004).

3 Clause 4(2)(a) of SEPP 5 as it then was, provides that SEPP 5 does not apply to land described in Sch 1 being environmentally sensitive land. Schedule 1 to SEPP 5 lists land identified on a bushfire prone land map certified under s 146 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) as “Bush fire prone land—vegetation category 1” as land that is environmentally sensitive.

4 Part of the land the subject of the Applicant’s development application, was so identified on a map certified by the First Respondent under s 146 of the EP&A Act. Section 146 of the EP&A Act provides that:

(1) If a bush fire risk management plan applies to land within the area of a council, the council must, within 12 months after the commencement of this section (and before the end of the period of every 5 years after the commencement):
(a) request the Commissioner of the NSW Rural Fire Service to designate land (if any) within the area that the Commissioner considers, having regard to the bush fire risk management plan, to be bush fire prone land, and
(b) must record any land so designated on a map.


(2) The Commissioner of the NSW Rural Fire Service must, if satisfied that the land designated by the Commissioner has been recorded by the council on a map, certify the map as a bush fire prone land map for the area of the council.

(3) Land recorded for the time being as bush fire prone land on a bush fire prone land map for an area is bush fire prone land for the area for the purposes of this or any other Act.

(4) The bush fire prone land map for an area is to be available for public inspection during normal office hours for the council.

(5) In this section:
"bush fire risk management plan" has the same meaning as it has in the Rural Fires Act 1997 .

5 The Council raised in the Class 1 proceedings the preliminary point of whether SEPP 5 applied at all to the land the subject of the Applicant’s development application because of the provisions of cl 4(2)(a) of SEPP 5.

6 In response the Applicant commenced these Class 4 proceedings against the First Respondent and Baulkham Hills Shire Council seeking, amongst other things:

(a) a declaration that the certification dated 4 August 2003 by the First Respondent in respect of bushfire prone land map for the Baulkham Hills Shire Council pursuant to s 146(2) of the EP&A Act is void and of no effect; and
(b) an order restraining the Council from taking any step in reliance on the certification.

7 At the first mention date for the Class 4 proceedings the Applicant indicated to the Court and the First Respondent that the declaration sought as against the First Respondent was based on a claim of Wednesbury unreasonableness. I note that no points of claim or evidence have ever been filed by the Applicant in the proceedings nor have any been ordered to be filed.

8 On 5 May 2004, McClellan J directed that as the Applicant appeared to be alleging the decision made by the First Respondent in relation to the location of bushfire prone land was based on a mistake, in that there was no Class 1 forest on the subject land which could result in it being listed as bushfire prone land on the relevant map, it was appropriate for the parties to attempt to resolve this factual issue by meeting on site with the relevant experts.

9 Following a meeting on site conducted in accordance with the Court’s directions, the relevant plan has been altered so that the Applicant’s land is no longer “bush fire prone land—vegetation category 1” land and the Applicant’s proposal is no longer prohibited under SEPP 5 on that basis.

10 The Applicant has therefore discontinued these Class 4 proceedings but I note that the Applicant’s Class 1 proceedings remain on foot.

The First Respondent’s Arguments

11 The main argument relied on by the First Respondent to support his submission that the Applicant should pay his costs was that the Applicant’s Wednesbury’s unreasonableness argument could never have succeeded. The First Respondent’s solicitor also submitted it was not appropriate case management by this Court to have required the parties to meet to discuss the factual issues as was required by the directions made by McClellan J in May 2004. The inference I took from this argument was that case management of this type would impose an unreasonable burden on the First Respondent if he has to review individual sites in the many maps of bushfire prone land he is responsible for producing.

12 The First Respondent’s solicitor also relied on Pt 11 r 5 of the Land and Environment Court Rules (“the Court Rules”) which provides that:

If a party to any proceedings discontinues them in whole or in part, the Court may, on the application of another party, order the discontinuing party to pay the costs of any party against whom the discontinued claim was brought and who does not consent to the discontinuance.

13 The First Respondent referred to and relied on the decision of Bignold J in Hamilton v Woollahra Council (Bignold J, NSWLEC, 9 July 1992, unreported) in which his Honour ordered costs against the discontinuing party, holding the discontinuance to be relevantly an event or a result in the litigation upon which the ordinary rule, that is, that costs follow the event, operates.

14 The decision of Bignold J in Jan Yee Australia Pty Limited v Woollahra Council (Bignold J, NSWLEC, 26 March 1997, unreported) was also relied on. His Honour adopted the same approach, stating that the correct approach to be followed in cases of this nature was to enquire whether:

… the proceedings were justifiably commenced, justifiably continued, justifiably settled, and in all probability would have succeeded had they been fully litigated.

15 The First Respondent also relied on my decision in Warringah Shire Council v Hutchison 3G Australia Pty Limited (2003) 126 LGERA 1 where I applied the above judgments of Bignold J.

16 The Applicant submitted the appropriate costs order in the circumstances of the case was that each party pay its own costs. In this regard the Applicant relied on the decision of the High Court in Re The Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 where McHugh J set out “the principles which govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra curial means” and held at p 635 that:

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continues to be reasonable until the litigation was settled or its further prosecution became futile the proper exercise of the court’s discretion will usually mean the court will make no order as to the costs of the proceedings.

17 The Applicant argued that the reasoning adopted in Lai Qin clearly applied here as, due to the case management process, the issues between the parties on the bushfire plan were resolved so there was simply no need for the Applicant to continue the proceedings, hence the filing of the notice of discontinuance by the Applicant.

Finding

18 While I have held that discontinuance without consent of the other parties can be a relevant event for the purposes of determining costs in Class 4 proceedings, and such a discontinuance is obviously relevant for the purpose of Pt 11 r 5 of the Court Rules, in light of the broad discretion that this Court has in relation to costs under s 69(2) of the Land and Environment Court Act 1979 it is always necessary to consider the relevant circumstances in terms of the commencement and progress of particular litigation. Further I accept the Applicant’s argument that principles enunciated by McHugh J in Lai Qin clearly apply here.

19 As has been said on many occasions it is not appropriate that the Court consider the merits of the matter in its consideration of whether the parties’ conduct in relation to particular proceedings is reasonable or not. Here it is nevertheless clear that the Applicant had to resolve the question of whether the bushfire plan was accurate for the purpose of its Class 1 proceedings and that is why it commenced these Class 4 proceedings. That is no doubt why McClellan J made the orders that he did in May 2004 in relation to the case management of the matter. The results of the case management process were that the key factual issue was resolved and the need for the Class 4 proceedings essentially went away.

20 When asked how else the Applicant could have resolved the issue of the accuracy of the plans, the First Respondent’s solicitor replied that there was a five year review process for the relevant bushfire plans and that this process had already been commenced and the Applicant could have waited for this process to be finalised rather than commencing the Class 4 proceedings. The First Respondent’s solicitor otherwise chose not to, or was unable to, indicate how else the Applicant could have proceeded as he considered this was a matter for the Applicant to determine. It appears to me that it was clearly necessary for the Applicant to commence these Class 4 proceedings and that, as a result of the Applicant commencing these proceedings and the active case management approach adopted by McClellan J, the factual matters at the core of the proceedings were successfully resolved.

21 I consider the Applicant acted entirely reasonably in commencing the proceedings and in discontinuing those proceedings once the matters essentially in dispute had been resolved. Accordingly the appropriate costs order is that each party pay its own costs and the First Respondent’s notice of motion is dismissed.

22 I note that, as I have held that the First Respondent’s Notice of Motion dated 5 October 2004 is dismissed, the parties have agreed on a figure for costs in relation to this motion.

23 I make the following formal orders:

1. The First Respondent’s Notice of Motion dated 5 October 2004 is dismissed.
2. The First Respondent is to pay, within 28 days, the Applicant’s costs in the sum of $1,350 in relation to the First Respondent’s Notice of Motion dated 5 October 2004.
3. Other than as provided in order 2, the parties are to bear their own costs in relation to these proceedings.