Bennette v Byron City Council

[2001] NSWLEC 184

Reported Decision: 116 LGERA 235

Land and Environment Court

of New South Wales

CITATION:	Bennette v Byron City Council [2001] NSWLEC 184
PARTIES:	APPLICANT: Bennette RESPONDENT: Byron City Council
FILE NUMBER(S):	10216 of 1997
CORAM:	Bignold J
KEY ISSUES:	Costs :- Discontinuance of planning appeal on eve of fixed hearing dates-Conduct of parties in litigation.
LEGISLATION CITED:	Land and Environment Court Rules, Pt 11 r 5
CASES CITED:	Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245 ; Menangle Sand and Soil Pty Ltd v Wingecarribee Shire Council (2000) 108 LGERA 209 ; Michael Bald and Associates v Byron Council (1999) NSWLEC
DATES OF HEARING:	24/11/00, 27/11/00, 12/12/00, 09/01/01, 4/05/01 Written submissions
DATE OF JUDGMENT:	08/14/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Webster, Barrister SOLICITORS Stacks the Law Firm with Halliday & Stainlay RESPONDENT: Mr J Johnston, Barrister SOLICITORS Wilshire Webb

JUDGMENT:

IN THE LAND AND

Matter No. 10216 of 1997

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

14 August 2001

J L BENNETTE

Applicant

v

BYRON CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Respondent (the Council) seeks an order for costs in these Class 1 proceedings which were concluded by the Applicant’s discontinuance of the proceedings on 21 January 2000 immediately following the refusal by Talbot J of the Applicant’s application to vacate hearing dates that had been fixed for the proceedings (scheduled to commence on the next sitting day of the Court). The discontinuance was effected without the consent of the Council which foreshadowed its application for costs in the proceedings.

2. It was in these circumstances that Talbot J directed the Applicant to file a notice of discontinuance within 7 days and granted the Council liberty to restore to the Court’s list the question of costs in the proceedings.

3. Thereafter, the Applicant filed a Notice of Discontinuance bearing an endorsement that the discontinuance “was subject to the reservation of the question of costs in the proceedings” and subsequently the Council restored that question to the Court’s list.

4. The Council’s application for costs in the proceedings has been opposed by the Applicant and the parties have, by consent, presented their respective cases by written submissions supported by affidavits sworn by their respective Solicitors, which principally narrate the long and detailed history of this litigation.

5. The Council’s application for costs is founded upon the Rules of Court Pt 11 r 5(1) which provides as follows:

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 who does not consent to the discontinuance.

B. THE RELEVANT PRINCIPLES FOR THE EXERCISE OF THE COURT’S DISCRETION ON COSTS WHERE PROCEEDINGS ARE DISCONTINUED

6. The parties’ competing submissions commonly adopt the line of authority that is well established by relevant decisions of this Court in cases involving the discontinuance of a planning appeal after it has been fixed for hearing.

7. Those principles are, in my respectful opinion, aptly collected in the following passage from the judgment of Lloyd J in Menangle Sand and Soil Pty Ltd v Wingecarribee Shire Council (2000) 108 LGERA 209 at 213:

The question of costs has been considered in a number of cases where a planning or building appeal has been discontinued without the consent of the other party to the litigation. The following general principles emerge from those cases:

a) in planning and building appeals it is first necessary to look for some exceptional circumstance so as to found an order for costs. This is a direct consequence of the Practice Direction to which I have referred;
b) ordinarily, the filing of a notice of discontinuance without the consent of the other party to the litigation will satisfy the exceptional circumstance test. This is because the discontinuance usually represents an abandonment of the applicant's claim, so that costs incurred by the other party are necessarily wasted or thrown away;
c) a relevant consideration in every case is whether the discontinuance was reasonable conduct on a part of the discontinuing party in the circumstances of the case, such as to negate the ordinary costs consequences of a discontinuance of the proceedings. Such conduct may be based on some action by the other party to the litigation or some supervening event beyond the parties' control.

( Bryant v Lismore City Council , Talbot J 4 July 1997, unreported; Manly Wharf Pty Limited v Manly Council (1997) 98 LGERA 245; Chris Lonergan & Associates v Byron Shire Council , Pearlman J, 27 April 1998, unreported; Gilling v Hawkesbury City Council , Bignold J, 7 May 1998, unreported; David Crane & Associates Pty Limited v Kogarah Council , Lloyd J, 10 June 1998, unreported; Kentgreen Dural Pty Limited v Hornsby Shire Council (1999) 103 LGERA 219; Tobaquero v Campbelltown City Council [2000] NSWLEC 68, unreported).

C. THE COMPETING ARGUMENTS

8. Prima facie, and conformably to established principles, the Council’s application for costs in the proceedings is overwhelming, given the fact that the Applicant discontinued the proceedings on the afternoon immediately before the scheduled hearing dates and only after its application for vacating the hearing dates had been dismissed by Talbot J on 21 January 2000 in circumstances where only nine days earlier, Lloyd J had on 12 January 2000 previously dismissed the Applicant’s earlier application for vacating the same hearing dates.

9. In respect of these two failed applications by the Applicant to vacate the fixed hearing dates, it is to be noted that the first application had been by Motion supported by an affidavit sworn on 10 January 2000 by Mr Anthony Smith, the Applicant’s Solicitor which referred to another Motion filed by the Applicant on 6 January 2000 seeking inter alia, an order that the Council produce specified documents pursuant to a subpoena issued on 29 November 1999 with the suggestion that non-compliance with that subpoena had contributed to the fact that the Applicant’s experts could not prepare their reports in time for the fixed hearing.

10. When Lloyd J on 12 January 2000 refused to vacate the hearing dates, he was dealing with no fewer than three Motions filed by the Applicant on 6, 7 and 11 January 2000 respectively. His Honour made no order in respect of the Applicant’s claim for an order that documents be produced pursuant to the subpoena. The only orders Lloyd J made (except for the order refusing to vacate the hearing dates) was an order extending the time beyond that directed by the Rules of Court and Practice Direction for service by the parties of their expert reports.

11. The Applicant’s second failure to obtain the vacating of the hearing dates was in respect of a defensive application that it had made to the Council’s Motion filed on 21 January 2000 (and made returnable later that afternoon) that the fixed hearing dates be confirmed and that the Court direct that the Applicant be not entitled to rely upon expert evidence which had not been served in accordance with the directions given by Lloyd J (which required service by 18 January 2000 in circumstances when no expert reports had been filed by the Applicant). The Council’s Motion had been brought on urgently after the Applicant’s Solicitor had notified that the Applicant intended to make an adjournment application at the commencement of the hearing which was to be held at Byron Bay.

12. The Applicant’s resistance of the Council’s case for costs, is principally founded upon the submission that the discontinuance of the proceedings was brought about by the failure of the Council to produce all of the documents sought in the subpoena issued on 29 November 1999 with the consequence that the Applicant was unable to properly prepare his case on an issue that he claimed had been “belatedly” raised by the Council, namely whether the mandatory requirements of cl 45 of the Byron Local Environmental Plan, requiring the provision of water sewerage and drainage services, had been satisfied. (Cl 45 had been the subject of a number of decisions of this Court in 1999 (eg Michael Bald and Associates v Byron Council (1999) NSWLEC 78) and both its true meaning and the capacity of this Court pursuant to the Land and Environment Court Act 1979, s 39(2) to exercise any of the Council’s functions under cl 45 were finally settled on 28 October 1999 when the Court of Appeal delivered judgment in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370).

13. It is to be noted that the Applicant’s submission essentially repeats the submission (or the germ of the submission) that was rejected by Lloyd J and Talbot J when each separately refused the Applicant’s applications to vacate the fixed hearing dates.

14. This fact does not mean that the submission is necessarily bound to again prove unsuccessful in the context of the present disputed question of costs (because the question of an adjournment of proceedings is not the same as the question of costs in those proceedings) but it does have the distinct aura of the phoenix rising from its own ashes.

15. However, more importantly, the vital question is whether the Applicant’s submission is sustainable on the evidence. In this respect, the Council trenchantly submits that the Applicant’s submission is not supported by the evidence and that the allegation of misconduct by the Council in the proceedings has not been substantiated.

16. As to the allegation that the Council belatedly raised the issue of compliance with cl 45 of the LEP, the Council draws attention to the fact that included in the Statement of Issues, the Council had filed on 28 August 1998, was the following issue:

1. Whether the consent authority can be satisfied that, prior adequate arrangements have been made for the provision of sewerage services to the land as required under cl 45 of Byron Local Environmental Plan

17. After the proceedings were fixed for hearing (it should be noted for the third time in the litigation history) on 1 November 1999, the Council’s Solicitors, by letter dated 29 November 1999, notified the Applicant’s Solicitors as follows:

We refer to the above matter and advise that we intend to amend Issue 1 of the Statement of Issues to read as follows:

1. Whether prior adequate arrangements have been made for the provision of sewerage services to the land as required by Clause 45 of Byron LEP 1988 (LEP).

1A Whether the consent authority should be satisfied with such arrangements.

18. No doubt, following the decision of the Court of Appeal in Codlea, the amended issue reflected a refinement (in terms of being more sharply focussed) on the original formulation of the issue. However, the issue remained substantially the same and there was never any question raised by the Applicant that the amended issue was either irrelevant or unfairly raised. Indeed, it is obvious that the cl 45 issue became a crucial jurisdictional type issue in the proceedings, following the decision in Codlea, which limited, this Court’s powers, in the exercise of the functions vested in the Council under cl 45.

19. Secondly, in respect of the allegation that the Council had not fully complied with the subpoena that had been issued by the Applicant on 29 November 1999, the Council relies upon the affidavit of its Solicitor Mr Kendall Webber sworn 12 January 2000 which answers the allegation that there had been a want of compliance by the Council with the subpoena. It is to be noted that it is not disputed that arrangements were made for the Applicant to have access to the Council documents at the Council’s offices on an agreed date (16 December 1999) and that two expert consultants retained by the Applicant’s Solicitor (but not the Solicitor) had attended the Council’s offices on that day for the purpose of inspecting documents.

20. Even assuming for the moment that the Applicant’s experts did not have access to all documents, the subject of the subpoena (and the Council disputes this fact by virtue of the content of Mr Webber’s affidavit), the Council submits that the Applicant could have taken appropriate action in the Court to remedy any alleged default and it is now too late to assert any relevant default. The only action that was taken is that which I have earlier noted when the Applicant’s Motion seeking more complete compliance with the subpoena came before Lloyd J on 12 January 2000 (with the separate Motions filed by the Applicant) when his Honour granted no relief in respect of that claim made by the Applicant in respect of the subpoena.

21. In these circumstances, I must find that the Applicant’s submissions alleging relevant disentitling misconduct by the Council have not been substantiated by the evidence. (In respect of the relevant evidence, I note that it is confined to the affidavits sworn by the parties’ respective Solicitors and there has been no cross-examination of the deponents.) Although not determinative of the issue raised by the Applicant on the present Motion, the fact that the Applicant was unable to successfully advance his case for vacating the hearing dates on the aforesaid separate occasions before Lloyd J and Talbot J, demonstrates the essential weakness or unsustainability of its claim that the Council had relevantly misconducted itself in the manner in which it had responded to the subpoena.

22. The Applicant also relies upon the fact that on 7 January 2000, the Council issued the Applicant with a Notice pursuant to the Environmental Planning and Assessment Act 1979, s 121B immediately cease filling and earthworks on the development site and upon the further fact that shortly thereafter, the Council commenced separate Class 4 proceedings (No 40010 of 2000) against the Applicant to restrain that filling and earthworks activity. (These Class 4 proceedings, which initially gave rise to the granting of an interlocutory injunction by Lloyd J on 18 January 2000, were ultimately disposed by consent orders made on 23 March 2000 whereunder the Applicant was vindicated).

23. The Applicant’s reliance upon the existence of the Class 4 proceedings to obtain a vacating of the fixed hearing dates did not impress Talbot J who stated in par 4 of his reasons for judgment on 21 January 2000:-

Further, I am at a loss to understand the submission that the granting of an interlocutory injunction in relation to the subject land would have the effect that the Applicant would no longer be in a position to pursue this Class 1 appeal.

24. In my opinion, the institution by the Council of the Class 4 proceedings soon after the Council had served the Applicant with the statutory notice pursuant to the EP&A Act, s 121B does not constitute disentitling misconduct (on the part of the Council) in the litigation relevant to the question of costs. There has been no suggestion that the Council instituted the class 4 proceedings at the time it did, with a view to directly or indirectly interfere with, or otherwise to prejudice the Applicant’s readiness and `capacity to present his case in the planning appeal. The institution of the class 4 proceedings on 18 January 2000 may, according to the Applicant’s perception have been untimely and may even have been distracting, but in truth they did not directly bear upon the planning appeal which had been fixed for hearing since 1 November 1999 in proceedings which had been commenced in May 1997.

25. The final matter relied upon by the Applicant is the fact that the Applicant lodged a further development application for the appeal site for the completion of what was the final stage of a development that had been progressively undertaken over the previous decade.

26. This further development application was lodged with the Council on 10 December 1999 (ie some two months after the current proceedings were fixed for hearing). On 18 April 2000, the Applicant appealed to this Court (Proceedings No 10318 of 2000) against the Council’s deemed refusal of that application. That appeal was heard by Talbot J on 6, 7 and 16 February 2001 and 26 April 2001 upon which last mentioned date Talbot J upheld the appeal and granted development consent subject to agreed conditions to what his Honour described as “an amended proposal” arrived at by negotiations conducted between the parties (vide par 17 of his judgment dated 26 April 2001). His Honour’s judgment also described the matter as having “a long, disjointed history” (par 1).

27. Significantly, his Honour’s judgment makes no reference to cl 45 which does not appear to have been ultimately in issue, despite the assertion of it being in issue at earlier interlocutory stages of the litigation.

28. The Applicant has submitted that the history of the subsequent development application for the development site (ultimately upheld by the grant of consent by this Court on 26 April 2001) should be regarded as a relevant circumstance that somehow relates back to the discontinuance of the present proceedings some 15 months earlier to explain and justify in terms of what, for the purpose of exercising its discretion on costs, is to be regarded as reasonable conduct by the discontinuing party. In so submitting, he relies upon the following passage from my judgment in Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245 at 249:

However I would emphasise that although an order for costs against the discontinuing party will ordinarily flow from the discontinuance of the proceedings, it may be established that the discontinuance reflects, not a total abandonment of the applicant’s claims, but a compromise or settlement of them, in which circumstances it may be just that there be no order as to costs following upon the discontinuance of the proceedings

29. In my judgment, the Applicant has not demonstrated that the fact of the subsequent successful planning appeal (upheld by Talbot J on 26 April 2001) is to be causally related to the planning appeal that he discontinued in the present proceedings on 21 January 2000. It is true that the two planning appeals related to the same development site and it may be accepted that the subject matter of both appeals was for some form of residential subdivision and development of the development site, (although the development consent was ultimately granted to an amended proposal). However, except for these common features, it has not been demonstrated that the second appeal in truth reflected a “compromise or settlement” of the Applicant’s first planning appeal. The second planning appeal was not filed in the Court for nearly three months after the discontinuance of the first planning appeal, and far from representing a compromise or settlement of the Applicant’s claims as encapsulated in the discontinued planning appeal, the second planning appeal itself was heard for four days in 2001 before being upheld by Talbot J on 26 April 2001 in an amended form which essentially reflected a negotiated result between the parties. The outcome of the second planning appeal might well be considered to be a compromise or settlement of that planning appeal but no such causal or relational link has been demonstrated to exist with the discontinued planning appeal.

30. The Applicant faintly suggested that the fact of the second development application (and the ultimate grant of consent to it by the Court) might justify the limiting of any costs order to be made in the discontinued proceedings to costs “thrown away”. This argument might conceivably have some problematic legitimacy if it had been shown that the costs incurred by the Council in the conduct of the second planning appeal were reduced by virtue of preparatory work that had been undertaken in the first planning appeal, which work could be re-deployed in the second appeal. However, no such nexus has been shown to exist, and significantly, as I have earlier noted, in the second planning appeal, no issue concerning cl 45 appears to have been ultimately raised.

31. For all the foregoing reasons, I can find nothing in the Council’s conduct in the discontinued proceedings that would disentitle it to the presumptive entitlement to costs it has, by virtue of the last minute discontinuance by the Applicant. Nor can I find anything in the Applicant’s conduct in discontinuing the proceedings which operates to displace the Council’s presumptive entitlement to costs by virtue of the Applicant’s last minute discontinuance. Nor can I find anything in either the course or outcome, of the second planning appeal that casts light retrospectively on the discontinuance of the earlier proceedings or upon the usual costs order that is made in consequence of a belated discontinuance.

D. CONCLUSIONS AND ORDERS

32. For all the foregoing reasons, I order that the Applicant pay the Council’s costs in the proceedings incurred up to the discontinuance on 21 January 2000 together with the costs of the Council’s application for costs in the proceedings, in the sum agreed, or failing agreement, as assessed.