Burrell v Almajd

[2003] NSWLEC 27

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Land and Environment Court

of New South Wales

CITATION:

Burrell v Almajd and Another [2003] NSWLEC 27

PARTIES:

APPLICANT
John Llewellyn Burrell

FIRST RESPONDENT
Ghass Almajd

SECOND RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

40103 of 1999

CORAM:

Talbot J

KEY ISSUES:

Costs :- overlapping proceedings

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 s 69
Local Government Act 1993

CASES CITED:

DATES OF HEARING:

29/11/2002

EX TEMPORE
JUDGMENT DATE :

11/29/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr T T Taylor (Solicitor)
SOLICITORS
Burrell Solicitors

FIRST RESPONDENT
Mr O Stichter (Solicitor)
SOLICITORS
Otto Stichter & Associates

SECOND RESPONDENT
N/A

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40103 of 1999

Talbot J

29 November 2002
John Llewellyn Burrell
Applicant
v
Ghass Almajd
First Respondent
Sutherland Shire Council
Second Respondent

Judgment

Introduction

1 HIS HONOUR: This is an unusual case and in many respects the issues that arise as a consequence of the applicant’s application for an order for costs are difficult to resolve. John Llewellyn Burrell is the next door neighbour of the first respondent. Trees that were growing on the first respondent’s land were attacked. The Court has never been made privy to how the damage occurred specifically, nor who the perpetrator was. The only factor that is clear is that some person attacked the trees with an axe.

2 Sutherland Shire Council (“the council”), as the consent authority and authority responsible for the administration of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and the Local Government Act 1993 (“the LG Act”) in the area, commenced proceedings against Ghass Almajd as the owner of the property.

3 After an interlocutory application in those proceedings by Mr Burrell, his application to be joined was rejected by Justice Cowdroy. After I refused joinder separate proceedings--

4 STICHTER: I think it was Mr Justice Cowdroy who refused.

HIS HONOUR: Yes it was Mr Justice Cowdroy who rejected it. Nevertheless the fact is that Mr Burrell elected to take his own course in the litigation in pursuit of a remedy which he considered was more reasonable than that which the council was seeking.

5 The proceedings were heard together. After a short period of hearing the council, as the applicant in the first proceedings, and Mr Almajd, as the respondent in those proceedings, brought in consent orders.

6 Mr Almajd did not then and never has accepted the fact that he was the person responsible for the damage to the trees. However, he has throughout the hearing of both proceedings acknowledged that if the Court was satisfied that the trees were damaged, destroyed or removed in circumstances where consent was required and the consent was not obtained, then he would abide by any orders made by the Court for remediation of the damage.

7 It was as a consequence of the acceptance of that position that I understand the consent orders were made between the council and Mr Almajd. Mr Burrell, however, was not satisfied with the scope and extent of the orders that were made by consent and elected to proceed on the basis that he was seeking wider orders in two major respects.

8 Firstly, in relation to the retention of two stumps of trees that he considered to have some potential to regenerate if treated in an appropriate way. Secondly, the extent to which the area in which the damaged trees to be regenerated or located should be protected by some fencing type of structure.

9 Mr Almajd continued his position in the Burrell proceedings on exactly the same basis as he had done in the earlier proceedings, namely and I repeat, that he did not accept that he was responsible as the perpetrator, but nevertheless if the Court could be satisfied that no consent had been obtained then he would abide the orders of the Court.

10 It is an unusual circumstance that a private individual elects to pursue a remedy beyond that which a statutory authority has accepted as being sufficient having regard to whatever the circumstances were. Those circumstances being no different as between the council and Mr Almajd and Mr Burrell and Mr Almajd, except that Mr Burrell was pursuing in addition to the public interest of having the law complied with, such private interests as he may have had in the outcome as a next door neighbour.

11 The circumstances are difficult to deal with as a consequence of the fact that although to a very significant extent Mr Burrell’s proceedings might be seen as a duplication of the council’s proceedings, he nevertheless was successful in obtaining orders for remediation beyond those which were made as consent orders in the council proceedings.

12 The Court has an unfettered discretion to award costs. Section 69 of the Land and Environment Court Act 1979 places no constraints upon the exercise of that discretion. Although it is often said that a successful litigant should be entitled to expect the exercise of the Court’s discretion in the successful litigant’s failure, that is only a reflection of the Court taking the circumstances into account in the exercise of its undoubtedly unfettered discretion.

13 As has been said on many occasions it might be expected that the Court will exercise its discretion in favour of the successful litigant unless there are special circumstances.

14 It would be wrong to say that there are no special circumstances in this case. The Court has to consider whether, on the one hand, Mr Burrell should be regarded as pursuing what was his undoubted right to engage the jurisdiction of this Court under the open standing provisions. On the other hand, consideration must be given to the fact that orders had already been made which substantially dealt with the remedy and recognised in so doing that Mr Almajd had taken a responsible attitude insofar as dealing with the responsible statutory authority was concerned, namely that he had agreed to carry out what indeed was substantial work and to suffer significant constraints on the way in which he could use his property while the orders made by consent were complied with.

15 Mr Burrell sought to enforce what I think I described as a plethora of prolix orders which ultimately were refined by the Court to reflect the Court’s interest in giving the two trees that were not covered by the consent orders the opportunity to regenerate.

16 In the exercise of the Court’s discretion I have to weigh all of the circumstances. I have to take into account, the ultimate outcome that Mr Burrell achieved against the outcome that had already been achieved what, in my view, was responsible action on the part of the council and Mr Almajd in seeking to resolve the litigation.

17 I do not accept that Mr Almajd should suffer the full impact of a costs order against him in all of the circumstances. Nor that Mr Burrell should be recompensed to the full extent of allowing him to recover the whole of the costs which were incurred. Mr Almajd has acted in a responsible way. Mr Burrell might be regarded as pursuing his undoubted rights in what might be regarded by some as an over-reacting or heavy-handed way.

18 As I said, it is a very difficult case. However, I have formed the view that Mr Burrell’s concern that the council would not pursue the matter, either in the litigation or subsequently, in a proper way was not well founded. Notwithstanding that he was successful in having the orders expanded in the way that I have described I do not accept that he should be compensated in full as a consequence of pursuing matters to the full extent that he did.

19 I do not accept that the resolution by the consent orders as between Mr Almajd and the council was irresponsible or in any way could be described as totally inadequate to meet the circumstances. It was merely as a consequence of being persuaded that there might be an opportunity, remote as it might be, but at least there was an opportunity, for the other trees to survive that the further orders were made.

20 This I believe is a case where special circumstances prevail and I propose to exercise the Court’s discretion by making an order that Mr Almajd pay one half of Mr Burrell’s costs in the proceedings, including the costs of today.