Chris Lonergan and Associates v Byron Shire Council (No 2)
[2005] NSWLEC 295
•06/07/2005
Land and Environment Court
of New South Wales
CITATION: Chris Lonergan & Associates v Byron Shire Council (No 2) [2005] NSWLEC 295
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT:
Chris Lonergan & Associates
RESPONDENT:
Byron Shire CouncilFILE NUMBER(S): 10983 of 2002
CORAM: Watts C at 1
KEY ISSUES: Costs :-
LEGISLATION CITED: Land and Environment Court Rules 1996 as amended - Land and Environment Court Practice Direction 1993 - Environmental Planning and Assessment Act 1979 s 96 - Planning for Bushfire Protection 2001
CASES CITED: Gales Holdings Pty Limited v Tweed Shire Council (No 2) [2004] NSWLEC 351 (2 July 2004) - Menangle Sand and Soil Pty Limited v Wingecarribee Shire Council (2000) 108 LGERA 209 - Noel Import (Australia) Pty Limited v Wollondilly Shire Council and Ors [2001] NSWLEC 212 - Kentgreen Dural Pty Limited v Hornsby Shire Council [1999] NSWLEC 158 - Tabaquero v Campbelltown City Council [2000] NSWLEC 68 - National Australia Properties Pty Limited v Willoughby Council [2004] NSWLEC 758 - Gee v Port Stephens Council [2003] NSWLEC 260 (17 October 2003)
DATES OF HEARING: 23/05/2005
DATE OF JUDGMENT:
06/07/2005LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr P W Larkin, barrister, instructed by
Mr P Starkey, solicitor
SOLICITORS:
Somerville Laundry Lomax
Mr C J Leggat, barrister, instructed by
Ms K Gerathy, solicitor
SOLICITORS:
Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
7 June 2005
10983 of 2002 Costs - Chris Lonergan & Associates v Byron Shire Council
JUDGMENT
1 Commissioner: The applicant discontinued this merit appeal in respect of a ten-lot subdivision of Lot 282, DP 1018663, by notice dated 15 April 2005. Previously, the Court had granted the applicant an adjournment to permit it to amend a twenty-one-lot community subdivision. The applicant by agreement dated 14 July 2003, had paid the costs thrown away in respect of that former application in the amount of $40,000, and the applicant had been directed by the Court to pay new development application fees for the amended ten-lot subdivision that amounted to $1,130.
2 Mr Leggat, counsel for Byron Shire Council, has now made an oral application for costs under s 69 of the Land and Environment Court Act 1979, based on the council’s notice of motion filed 15 April 2005. The notice of motion moved the Court for orders:
3 Mr Leggat submitted that the respondent’s primary claim is that as the council has not consented to the discontinuance by the applicant, the applicant should pay the council's costs thrown away and costs for the motion as to costs. In this regard the council relied on the affidavits of Ms K M Gerathy sworn 5 May 2005, 13 August 2004 and 20 May 2005.
4 In a letter dated 1 April 2005, the respondent consented to the proceedings being discontinued on the condition that the applicant pay the council’s costs “…thrown away as agreed but preferably in an agreed sum within an agreed timetable”. [Note: Exhibit 3 Annexure I].
5 The applicant, through the affidavit of Mr Lonergan dated 5 April 2005, sought to discontinue the appeal with no order as to costs.
6 I have concluded that there should be no order as to costs as the applicant discontinued promptly after receiving a peer review bush fire risk report. I have approached the Chief Judge to concur in my provisional costs orders.
Basis for costs orders
7 The question for the Court is whether, in the exercise of its discretion under s 69(2) of the Land and Environment Court Act 1979, in the circumstances of this particular case, it is “fair and reasonable” that the applicant should pay the respondent’s costs as sought by the council’ solicitors.
8 The Court’s discretion to order costs lies with s 69 of the Land and Environment Court Act 1979, that relevantly provides:
(2) Subject to the Rules and subject to any other Act:
(a) costs are in the discretion of the Court;
(b) the Court may determine by whom, and to what extent costs are to be paid; and…
(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the
Legal Profession Act 1987 or on an indemnity basis.
(8) A Commissioner or Commissioners may not make an order under this section except with the concurrence of the Chief Judge,
(9) …
9 Part 16, rule 4, of the Land and Environment Court Rules 1996 relevantly provides:
- (1) This rule applies to the following proceedings in Classes 1, 2 and 3 of the Court's jurisdiction:
Environmental Planning and Assessment Act 1979.
- (2) No order for the payment of costs will be made in proceedings to which this rule applies unless the Court considers that the making of the costs order is, in the circumstances of the particular case, fair and reasonable (Court’s emphasis added).
10 Also relevant is Part 11 rule 5 of the Land and Environment Court Rules 1996, which provide:
11 Paragraph 10 of the Land and Environment Court Practice Direction 1993, relevantly, provides:
- 10. Where an application for costs is made in the proceedings that have been heard and determined by one or more Commissioners the application shall be made to that Commissioner or those Commissioners (as the case may be).
- Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the parties shall be informed of that decision and the reasons for it and shall be given the opportunity to make submissions to the Chief Judge on the question of whether he should give concurrence to the proposed costs order.
12 Thus before giving effect to an order in this costs application the concurrence of the Chief Judge is required, and the parties are to be afforded the opportunity to make further submissions before him.
13 The matter came before me on 23 May 2005 and an oral application was made for costs. I asked the respondent to prepare an account of the costs sought and it was agreed to provide this by 4.15pm on Monday 30 May 2005 in consultation with the applicant.
The council’s costs application
14 Mr Leggat, for the council, submitted that the respondent had not consented to the discontinuance and no agreement had been reached between the parties as to costs in respect of that discontinuance. Referring to the affidavit of Mr Lonergan, sworn 5 April 2005, he submitted that apparently the sole reason for discontinuing related to bush fire matters, especially those identified by Mr G Swain, a bushfire consultant employed by the applicant, in his peer review report.
15 Mr Swain, concluded at p 4 of his bushfire report, dated 22 March 2005:
- The development does not comply with the requirements of Planning for Bushfire Protection 2001 in the areas outlined above. The statement of issues prepared by Council as reasons for refusal clearly enunciate the core bushfire protection matters that the proposed development fails to address. Accordingly, the Court will have no option but to refuse the appeal on bushfire matters alone.
I strongly recommend that the appeal be discontinued and a review be undertaken into alternate layouts that address the Rural Fire Service requirements.
16 Mr Leggat submitted that: “The bar was not lifted higher” with the publication of Planning for Bushfire Protection 2001 in December 2001, and the applicant had been put on notice that bushfire matters were of concern since the first set of issues prepared by the council dated 30 April 2003 in Exhibit 3, Tab 13. This bushfire matter, he submitted had been reiterated in a further statement of issues dated 17 October 2003 in Exhibit 3, Tab 14 and in the revised statement of issues dated 20 January 2005 in Exhibit 6.
17 Mr Leggat referred to the decision of his Honour Bignold J in Gales Holdings Pty Limited v Tweed Shire Council (No 2) [2004] NSWLEC 351 (2 July 2004) and in particular para 20 wherein his Honour referred with approval to the principles enunciated by His Honour Lloyd J in Menangle Sand and Soil Pty Limited v Wingecarribee Shire Council (2000) 108 LGERA 209:
18 His Honour Lloyd J considered relevant cases and observed at 214 in the same matter:
- In those cases in which an order for costs was made against the discontinuing party, the discontinuance had occurred well after the case had been set down for hearing and relatively shortly before the hearing date. It is self-evident that in those circumstances the other party to the litigation would have incurred substantial costs in its preparation for the hearing, which costs were necessarily wasted.
19 Mr Leggat submitted here that the discontinuance occurred late (on 15 April 2005) and near the hearing date (commencing on 23 May 2005). [In fact the hearing date had been set down for five days in Ballina commencing 23 May 2005, which day was the hearing date of the present costs application.] He submitted that the revelations of Mr Swain could not be seen as a supervening event since the applicant knew the bushfire concerns addressed by him, after the council had served its first statement of issues.
20 Mr Larkin agreed with this submission and confirmed that in his opinion, there was a supervening event but that was not bushfire related, but the scientific committee’s listing of a Paperbark grove on land abutting the subject to the south east.
21 Mr Leggat submitted that the decision by his Honour Talbot J, in Noel Import (Australia) Pty Limited v Wollondilly Shire Council and Ors [2001] NSWLEC 212 at para 18 is important:
- Apart from filing and service of the expert’s reports, pursuant to the LEC Rules, the decision to discontinue the appeal does not appear, in any relevant sense, to be based upon any action taken by either of the respondents. Irrespective of whether the applicant acted responsibly in discontinuing the proceedings there is nothing to show that there was any catalyst which occurred contemporaneously with the decision to discontinue that was not available to the applicant and its advisors at any time following the lodgement of the development application.
22 He submitted, in the present case, that the applicant was aware of the need to address the bushfire issues.
23 Mr Leggat also referred to the decision of his Honour Bignold J in Kentgreen Dural Pty Limited v Hornsby Shire Council [1999] NSWLEC 158 at para 34:
- The applicant’s decision to discontinue was entirely its decision, in the sense that it was unaffected by any action taken by the council in the litigation or by any supervening action beyond the parties’ control. It may be readily inferred that the applicant, in discontinuing the proceedings, acted entirely responsibly in the litigation, in the light of the professional advice it received after it had commenced the litigation. However, it had sought the early hearing of the appeal and the professional advice that it obtained, which obviously and profoundly affected its decision to terminate the litigation, was received only three weeks before the fixed hearing date, at a time when the council had presumably incurred costs in preparing its case.
24 In that case his Honour made orders under Part 11 rule 5 of the Land and Environment Court Rules 1996 requiring the applicant to pay the council’s costs, in the sum agreed or as assessed, reasonably incurred by the respondent in the proceedings prior to the discontinuance of the proceedings. Mr Leggat pointed to the fact that Part 11 Rule 5 of the Court Rules still exists. However, Part 16 rule 4 has now been changed to refer to the “fair and reasonable” test rather than “exceptional circumstances”.
25 Mr Leggat also referred to the decision of his Honour Bignold J, in Tabaquero v Campbelltown City Council [2000] NSWLEC 68 at para 10.
- It is upon the basis of the foregoing facts (and in particular those encompassing the litigation history) that the council’s claim to costs in the proceedings is founded. In this respect, it relies upon a number of decision in this Cout culminating in Kentgreen Dural Pty Limtied v Hornsby Shire Council (1999) 103 LGERA 219 which establish what I have called a ‘presumptive entitlement’ to costs in favour of the party against whom the proceedings are discontinued.
26 Mr Leggat also referred to the decision of his Honour McClellan C J in National Australia Properties Pty Limited v Willoughby Council [2004] NSWLEC 758 at para 10.
- The outcome would be likely to be different in circumstances where the council has incurred costs in preparation for the hearing which will be thrown away or, and in particular, where counsel may have been retained and an obligation to pay counsel’s fees exists. However, those circumstances do not arise in relation to the present matter and, accordingly, I am satisfied that no order for costs should be made.
27 He submitted that here, the respondent had incurred costs that should be recompensed by the discontinuing applicant.
28 Mr Leggat also referred to the decision in Gee v Port Stephens Council [2003] NSWLEC 260 (17 October 2003) at para 56, wherein his Honour McClellan CJ gave an example where no costs award would be justified where merit issues alone were in dispute.
The applicant’s response
29 Mr Larkin submitted that the applicant had acted responsibly in discontinuing the hearing promptly after Mr Swain’s peer review on bush fire risk had been received that took a contrary position to that of Mr Lonergan town planner for the applicant. On the basis of Mr Lonergan’s report in Exhibit F pp 24-5 pp 39-43 and also the conclusion at p 59, the applicant had been prepared to accept that bush fire protection issues had been addressed in the Bottlebrush Bushfire Management Plan submitted with the newly amended application. It was not until it had received Mr Swain’s report dated 22 March 2005, in Exhibit B, Annexure F, that it began to doubt whether adequate bushfire protection for the future occupants had been proposed. The applicant filed the notice of discontinuance in Exhibit A on 15 April 2005, less than a month after receiving Mr Swain’s report.
30 Mr Larkin submitted that Planning for Bushfire Protection 2001 does not apply to this land as under s 79BA of the Environmental Planning and Assessment Act 1979,
(1) Development consent cannot be granted for the carrying out of development for any purpose (other than subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bushfire prone land unless the consent authority:
(a) is satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection ISBN 0958598789, produced by the NSW Rural Fire Service (or if another document is prescribed by the regulations for the purposes of this paragraph that document) that are relevant to the development, or
(b) has consulted the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. [Gazetted 10 December 2004] (Court’s emphasis added).
31 Both parties agreed that the Planning for Bushfire Protection 2001 is a guideline only and is not mandatory for the applicant.
32 Mr Larkin said that “…Mr Swain had approached it [the bush fire risk] differently” and had as a result recommended that the applicant discontinue his appeal. He submitted that there are “…differences of opinion as to weight to be attributed to it”. Mr Swain had not taken a legally correct position. However, “…it is plain that his report indicates some features [of the proposal] that do not measure up to Planning for Bushfire Protection 2001”.
33 Mr Larkin submitted that Mr Lonergan has a duty to assist the Court and is not responsible to the person retaining him. He, Mr Lonergan, had attested to his impartiality, had lengthy experience and had prepared a written report over many pages that concluded that future occupants of the subdivision would be well protected from bush fires.
34 Mr Larkin submitted that although there was “…no obligation on the part of his client to obtain a peer review and to provide it to the Court or the council” it had done so, by retaining Mr Swain to review bush fire protection.
35 He submitted that the applicant had expert evidence [on bush fire protection] before the hearing, and “…if it had proceeded and there would be no order to costs” on the usual basis that each party in Classes 1, 2 and 3 pay their own costs.
36 Mr Larkin submitted that as a result of the peer review contrasting with the view of Mr Lonergan that his client had carefully weighed the “degree of risk”, and decided to discontinue the appeal. He pointed to the fact that in regard to bush fire protection there was four competing views. Ms V Hodgson, and Mr Lonergan supported the application. Mr Swain and the council’s expert did not. Thus although there would be a degree of risk of proceeding to hearing there would be nothing wrong in doing so, however, his client elected to discontinue.
37 Mr Larkin submitted that there was another crucial event not related to bushfire, being that referred to in para 17 of the statement of issues dated 20 January 2005, in Exhibit 6 namely:
- Further assessment of the impacts of the development on the Paperbark community listed as an Endangered Ecological Community by gazetted dated 17 December 2004 on Lot 3, in the vicinity of the creek and on adjoining land to the south needs to be provided. An eight-part test as set out under section 5A of the Environmental Planning and Assessment Act 1979 is required.
38 He submitted that the gazettal of the Swamp sclerophyll forest (Paperbark) and littoral rainforest Endangered Ecological Community (EEC) followed the amendment of the plans and had been a supervening event. The applicant had obtained an assessment of the Paperbark EEC dated March 2005, by Mr J Warren as to whether an eight-part test was required. Mr Warren concluded at p 9 that a species impact statement was not required. The applicant “…could have batted on,” but did not. The applicant recognised that Lots 3 to 7 back onto the stand of Paperbark and if it had proceeded either the bushfire or the EEC “…would be enough to sink this application”.
39 He pointed to one other matter described on Sheet No 4 of the bundle of plans in Exhibit E. Although as presently shown the asset protection zone (APZ) for Lot 10 would extend into the 7d zone the building envelope on that lot could be repositioned further to the east to ensure that the APZ would clear that zone and be contained within the residential 2(a) zoned land.
40 Mr Larkin submitted that the present test under Part 16, rule 4(2), Land and Environment Court Rules 1996 as amended 12 December 2003, is whether “…the Court considers that the making of the costs order is, in the circumstances of the particular case, fair and reasonable”. He submitted that cases such as Noel Import, Kentgreen and Tabaquero all pre-dated the current practice and the ‘fair and reasonable’ test and do not offer much guidance today.
41 He submitted only two cases Gales and National Australia post-date the test. Gales case he submitted was authority for the principle that wherever there was a timely voluntary discontinuance of the proceedings and none of the supervening matters were of the applicant’s making or within its control, discontinuance would be seen as being reasonable and no costs awarded against the discontinuing party. Had the applicant been tardy in discontinuing it is likely that the other party would have expended substantial costs in preparing for the hearing.
42 Mr Larkin submitted that the outcome of a hearing in present case would be unclear, and “…the applicant made the decision that it did not like the risk”. He submitted that “…there was no obligation for the client to do other than sit on the Swain report and we could be commencing a 7 day hearing”.
43 He did not accept, as found by Bignold J, in Tabaquero that there is a “presumptive entitlement” to costs in the event of discontinuance. The test presently is simply whether the award of costs is “fair and reasonable”.
44 He submitted that Part 11 rule 5 of the rules confers discretion in the Court that is unconfined and it is necessary for the Court to take into account the circumstances of the case. Also the Court would not want to discourage applicants from taking a commercial view as to its prospects at appeal. If that were the case then applicants would “…just bat on at considerable expense to the public” to avoid having costs awarded against them for discontinuing
45 Mr Larkin submitted that Gee v Port Stevens was interesting in understanding the changes to the rules. In that case the applicant sought approval to construct a Knotts Pine warehouse that was prohibited in the zone but the applicant relied on existing use rights (EUR). His Honour had analysed the old cases that favoured a costs order being made under special circumstances and his Honour propounded at para 56 the new test and that found its way into the rules:
- I have already indicated there will be many cases in Class 1 and 2 where it is appropriate that there be no order as to costs. In my opinion, this is likely to be the case where the issues in dispute are confined to merit considerations. However, a different approach may be required where a preliminary question is raised. If it happens that determination of the preliminary question will assist the commissioner who hears the merits of the matter by defining the content or the limits on his or her discretion it is likely that no order for costs should be made. For example, the interpretation of a provision of a local environmental plan containing height or floor space controls may be a circumstance where no order should be made. There will be others. However, where the preliminary point is raised is said to preclude consent at all, the proceedings cease to have the character of merits review and different considerations arise.
46 In that case his Honour ordered that the respondent pay the applicant’s costs of the preliminary question.
47 Mr Larkin submitted that the scientific committee’s recommendation was a supervening event and the making of a costs order in the present circumstances would not be fair and reasonable under Part 16 rule 4(2).
The respondent’s submissions in reply
48 Mr Leggat pointed to the concessions made by the applicant in its submissions, that the council has not done anything to bring about the discontinuance and that Mr Swain’s report was not a supervening event beyond the parties’ control as per the decision in Menangle Sand and Soil Pty Limited v Wingecarribee Shire Council.
49 Despite Mr Larkin’s submissions that the general principles of his Honour Lloyd J are no longer the law, there is the decision of his Honour Bignold J in Gales at para 24 that reinvigorates those principles. He submitted that there is no other judgment of the Court that contradicts the statements of his Honour Bignold J and the Court must take the law as it is applied today.
50 Mr Leggat submitted that in a number of cases applicants, in the position of Mr Larkin’s client, have put the position that community resources would be saved by an applicant not running a case and that there should be no costs awarded. The Court has rejected those submissions. Talbot J in Noel Import rejected such a submission.
51 It was suggested that the scientific committee’s recommendation was a supervening event, however, Mr Leggat submitted that the affidavit of Mr Lonergan made it clear that the decision-making process for discontinuing was based on bush fire matters and referred specifically to Mr Swain’s advice.
52 Mr Leggat submitted that any attempt to rely on the evidence of Mr Lonergan with regard to bush fire protection would be argued against in any hearing, since one would search in vain for any reference to bushfire expertise in Mr Lonergan’s curriculum vitae.
53 Also he submitted that if Mr Larkin is correct in submitting that s 79BA of the Environmental Planning and Assessment Act 1979, properly understood, made the Planning of Bushfire Protection 2001 irrelevant, then the applicant could have proceeded with the application.
54 In answer to the question “…how could Mr Lonergan be so far out of kilter with his assessment of bush fire risk?” He submitted that he had no relevant expertise. In any event, there is no reason why the applicant did not take the timely steps to understand “…the strengths and weaknesses of the case”. His Honour Talbot J in Noel Import identified this, and if the applicant had taken timely action then the council would not have been put to the extra work. Clearly the respondent’s request for costs is fair and reasonable, he submitted.
Quantum of the claim
55 By letter dated 24 May 2005, Ms Gerathy attempted to crystallise the quantum of costs for the notice of motion, including costs incurred from 20 August 2004 up until the date of discontinuance 15 April 2005. In addition to this she claimed on behalf of her client cost for the notice of motion on costs. The costs up to the date of discontinuance may be summarised:
Adjusted costs at 30 May 2005 Amount $ GST $ Total $ 1. Abbott Tout costs from 21 August 2004 to 15 April 2005 (Annexure D) 2. Abbott Tout costs 21 August 2004 to 15 April 2005 (Annexure D) 3. Mark Fitzgerald 12 October 2004 with attendances before October deleted (Annexure E) 4. Mark Fitzgerald 6 June 2005 (sic) (Annexure E) 5. Stephen P McElroy & Associates 12 April 2005. (Annexure F) 6. Stephen P McElroy & Associates December 2004 – only items from 13 and 14 December 2004 included as invoice relates to a number of matters. (Annexure F) 7. Martens & Associates dated 14 April 2005. More detail and hourly rates requested for period March 2004 to April 2005. (Annexure G) 8. Newton, Denny, Chapelle, surveyors. (Annexure H) 9. Homes, Fire and Safety dated 30 November 2004. (Annexure I) 10. Barry Eadie Consulting Pty Limited dated 10 May 2005. (Part Annexure I) 11. Chris Power Environmental Planning Pty Limited (Part Annexure J) 12. Chris Power Environmental Planning Pty Limited (Part Annexure J) 13. Chris Power Environmental Planning Pty Limited (Part Annexure J) 14. Chris Power Environmental Planning Pty Limited (Part Annexure J) 15. Chris Power Environmental Planning Pty Limited (Part Annexure J) 16. Chris Power Environmental Planning Pty Limited (Part Annexure J) 17. Chris Power Environmental Planning Pty Limited (Part Annexure J) 18. Chris Power Environmental Planning Pty Limited (Part Annexure J) 19. Chris Power Environmental Planning Pty Limited (Part Annexure J) 20. Total (not including Martens & Associates account)
56 An amount around $6,499.20 was also sought for the costs of the notice of motion in respect of costs
Findings
57 I note that the parties agree that there was no action by the respondent that precipitated the applicant discontinuing. Also the applicant did not classify bushfire protection as a supervening event outside the control of the applicant.
58 Most of the cases referred to above are useful in understanding the Court’s position under the old exceptional circumstances rule. Only National Australia and Gales are of direct assistance in understanding the application of the new rules.
59 Part 16 rule 4(2) of the Land and Environment Court Rules 1996 as amended requires the Court to make no order for the payment of costs unless the Court considers that the making of the costs order is, in the circumstances of the particular case, fair and reasonable. Thus, in Class 1 appeals, unless exceptional circumstances exist, the parties would pay their own costs.
60 Also, under Part 11 rule 5 of the Land and Environment Court Rules 1996, the party, other than the discontinuing party, who does not consent to the discontinuance, may be awarded costs reasonably occasioned by the discontinuance before the service of notice of the discontinuance.
61 Much depends on timing of the discontinuance. If it is early and the other side has not incurred expense, then it is unlikely that costs application would be successful and could not be seen as fair and reasonable.
62 The respondent provided in its submissions a schedule of significant dates which indicates the timing of the discontinuance:
20 August 2004 Commissioner Watts granted leave to rely on amended plans 22 September 2004 Applicant obtains amended bushfire management plan [Note: Exhibit B, Annexure D by Ms V Hodgson] 09 October 2004 Applicant provides bushfire management plan to the council 13 October 2004 Directions hearing before Commissioner Watts 14 December 2004 Callover before Registrar Dixon 28 January 2005 Callover – Applicant considering its position 11 February 2005 Callover – Applicant obtains adjournment 11 March 2005 Callover – Matter fixed for hearing 23 to 27 May 2005 15 April 2005 Applicant discontinues
63 The applicant received Mr Swain’s peer review of bushfire protection measures by Ms V Hodgson around 22 March 2005 and discontinued eighteen working days later on 15 April 2005, about 5 weeks before the matter was set down for hearing on 23 May 2005.
64 Despite the council having expended resources in preparing for the appeal which was still on foot, I consider that the applicant acted promptly on the advice of Mr Swain. Also as Mr Larkin submitted, the applicant could have proceeded to appeal but elected to withdraw in the face of Mr Swain’s recommendation that the applicant should discontinue the appeal.
65 The respondent submitted that as bush fire protection was in issue from the outset, the applicant should have adequately addressed it in the amended plans. The applicant however, had accepted the advice of Mr Lonergan supported by Ms Hodgson that the amended proposal did properly address bushfire issues. I can find no support for the contention that the applicant should have withdrawn earlier than it did.
66 The expenses of the council from 20 August 2004 to 15 April 2005 could be seen to relate to the normal assessment process and legal costs associated with the appeal. Those legal costs should be borne by the respondent in this case as I am satisfied that the applicant’s conduct in discontinuing was reasonable in the circumstances of the case, and would “negate the ordinary costs consequences of a discontinuance of the proceedings”. The applicant in a timely fashion acted upon the advice of Mr Swain.
67 I am satisfied that there was a timely voluntary discontinuance of the proceedings as in Gales case, and as a result I am of the opinion that the costs orders sought by the respondent are not fair and reasonable and I make no orders as to costs as set out below.
Endangered Ecological Community, (EEC)
68 The gazettal on 17 December 2004 of the Swamp sclerophyll forest (Paperbark), abutting the subject land to the south east, as an Endangered Ecological Community, (EEC) could be seen as a supervening event outside the control of the applicant. As a supervening event outside the control of the applicant it might have been used as justification for discontinuing. However, that discontinuance would need to be timely.
69 Mr J Warren, the applicant’s ecological consultant, carried out an eight-part test under s 5A of the Environmental Planning and Assessment Act 1979 assessing the impact of the proposal on the ECC and came to the conclusion that no species impact statement was required, [Note: Exhibit 3 Tab 21 p 9]. The amended subdivision plans, in Exhibit E, show Lots 3 to 7 backing onto the land abutting to the south east, with dwelling envelopes on those lots, clear of the ecological community of Paperbarks. So it is not clear whether the application on merit would have been refused for reason of its impact on the ECC. It is problematic as to whether this would be a reason to discontinue and whether in combination with the bush fire matter it “…would be enough to sink this application” as submitted by the applicant.
70 Mr Lonergan, the applicant’s town planner did not identify, in his affidavit, the gazettal of the EEC as a reason for discontinuing. I am persuaded by the evidence of Mr Lonergan and Mr J Warren, my understanding of the plans that the main reason for discontinuing was probably other than the gazettal of the EEC. I consider this to be largely irrelevant to my consideration of costs, despite it being a supervening event, outside the control of the applicant.
Provisional costs orders
71 Subject to any submission the parties make within 14 days of this judgment, the Court, with the concurrence of the Chief Judge, orders that:
1. There is no order for costs.
2. The exhibits be retained for one month and then returned.
S J Watts
Commissioner of the Court
sw
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