David James Balcombe v Nambucca Shire Council [1998] Nswlec 287 (13 November 1998)

[1998] NSWLEC 287

Land and Environment Court

of New South Wales

CITATION:	DAVID JAMES BALCOMBE v. NAMBUCCA SHIRE COUNCIL [1998] NSWLEC 287 (13 November 1998) [1998] NSWLEC 61
PARTIES:	DAVID JAMES BALCOMBE v. NAMBUCCA SHIRE COUNCIL
FILE NUMBER(S):	40256 of 1997
CORAM:	Talbot J
KEY ISSUES:	:- Costs - public interest litigation Costs - indemnity basis Costs - incidental costs
LEGISLATION CITED:	Land and Environment Court Act.
CASES CITED:	Oshlack v Richmond River S.C. & Anor (1994) 82 LGERA 236 at 245 ; Megarry VC in Re Gibson's Settlement Trusts [1981] Ch 179 at 184
DATES OF HEARING:	3 November 1998
DATE OF JUDGMENT:	11/13/1998
LEGAL REPRESENTATIVES:	Mr K E Roser (Barrister) First Respondent Mr W P O'Rourke (Solicitor) Second Respondents Mr C H Shaw (Solicitor)

JUDGMENT:

1. In a judgment delivered on 30 July 1998 the Court published reasons and made formal orders whereby the application was dismissed.

2. The second respondents, as the holder of the relevant development consent, entered a submitting appearance, except as to costs. The applicants ultimately did not seek any relief directly against the second respondents.

3. However, the relief which the applicants were seeking was by way of declaration and consequential orders on the basis that the approved development carried on by the second respondents, as modified by the amended conditions, is prohibited.

4. The second respondents seek an order that their costs be paid by the applicants on an indemnity basis and include incidental costs contemplated by s 69 of the Land and Environment Court Act.

5. The original class 4 application expressly referred to an order restraining the second respondents from carrying out any activity permitted by development consent granted on 17 July 1997.

6. On 5 June 1997 in response to objections by the applicants to the operation being carried out by the second respondents, an application for modification of an existing development consent was lodged with the council. The modification was approved on 17 July 1997. The applicants continued to make objection about the activities of the second respondents on the subject land and the second respondents, upon becoming aware of a threat by the applicants to commence proceedings in this Court, engaged a solicitor to advise them.

7. The second respondents were advised by Nambucca Shire Council that in the light of the objections made against the modified development consent, it would be in their best interests to submit a further amended development application to protect against further threats being levied at the council. On 11 September 1997 a further development application was lodged. Before it was determined, the class 4 application was lodged and served. The second respondents retained solicitors to represent them in the proceedings and a firm of environmental planners and surveyors was engaged to provide advice in relation to the proceedings.

8. In response to objections made to the outstanding development application, the second respondents caused a further development application to be lodged with council on 19 December 1997.

9. Although there is no direct evidence of what actually occurred, the Court is entitled to infer that the second respondents were ultimately content to rely on the council to be a contender against the applicants’ claim. In so doing costs of more than one representation were saved and a duplication of submissions and evidence to the Court was avoided. In that respect the approach taken by the second respondents must be regarded as a responsible one in terms of costs.

Public Interest Litigation

10. The applicants contend that the application of the usual rule that the Court should exercise its discretion in favour of a successful party is not appropriate, having regard to the alleged public interest nature of the litigation.

11. Mr Roser claims, on behalf of the applicants, that the litigation was commenced by them as representatives of persons residing in an adjacent caravan park, either at the time or in the future. He also seeks to rely on some evidence that there has been ongoing concern in the Nambucca Valley about the application of the provisions of the LEP and that other disputes have been resolved by amendment made to the planning instrument.

12. The Court rejects the proposition that a group of persons living in an adjoining property, irrespective of their status as owners or occupiers, necessarily form a group of persons who might, without further evidence, be regarded as representatives of the public interest. Their concerns about activities on the adjoining land and their compatibility with their own land use is, prima facie, no more than a private interest which might be affected by the application of public law. There is, of course, a public interest to ensure that terms and conditions of development consent are observed and that the provisions of any relevant environmental planning instruments are complied with.

13. The issues in the present proceedings were resolved by the consideration of the activities being undertaken by the second respondents in the light of the proper meaning of various provisions in the Nambucca LEP.

14. Ultimately it was determined that it was open to the council to regard the use by the second respondents for the purpose of carrying out work on vehicles as being permissible with consent pursuant to the appropriate clause in the LEP. The work permitted by the modification of the development consent was properly restricted to that which is ancillary to, or forms part of, the approved use. There was nothing unique about any legal concept involved in the construction of the LEP. It is difficult, if not impossible, to perceive how the case could be regarded as “test case” of difficult or novel legal issues.

15. The elements recognised by Stein J in Oshlack v Richmond River S.C. & Anor (1994) 82 LGERA 236 at 245 and accepted by the High Court as a proper basis for the exercise of the Court’s discretion to categorise the proceedings as public interest litigation are not present in this case.

16. The Court is not satisfied that these proceedings were brought to advance a legitimate public interest or that the determination by the Court has contributed to the proper understanding of the law in question to the necessary extent to justify their categorisation as public interest litigation.

17. Ultimately the purpose of the litigation must be seen for what it is, namely an attempt to constrain activities on adjoining land which had a perceived effect on the amenity and enjoyment of use of lands at one time controlled by the applicants.

18. In the circumstances, the second respondents are entitled to an order for costs so far as they extend to the conduct of the litigation.

The Claim for Indemnity Costs

19. Although the applicants’ case was not a strong one, and proceeded without any reliance being placed upon any actual evidence of the basis for the council’s decision, that is not to say that the action was commenced or continued in circumstances where an applicant, upon receipt of appropriate advice, should have known that there was no reasonable prospect of success. There is no evidence of an ulterior motive on the part of the applicants in the commencement of the proceedings, notwithstanding an unsubstantiated submission from the bar table that the applicants were motivated by the pressures of a commercial arrangement or contract for the sale of their property.

20. The proceedings were not unduly prolonged by any action on the part of the applicants. The evidence and submissions were completed within one hearing day and judgment delivered the next.

21. I see no reason why any order should be made in respect of costs other than an order that reflects assessment of the second respondents’ costs on the usual party and party basis.

The Claim for Incidental Costs

22. The second respondents seek a particular order whereby they are entitled to recover costs incidental to the proceedings. The basis for the claim lies in s 69(1)(a) of the Land and Environment Court Act.

(1) In this section, costs includes:

(a) costs of or incidental to proceedings in the Court

23. Section 69(2) leaves the question of costs in the discretion of the Court which may determine by whom and to what extent costs are to be paid.

24. The formula for identifying costs incidental to proceedings which has been adopted in New South Wales can be obtained from the judgment of Megarry VC in Re Gibson’s Settlement Trusts [1981] Ch 179 at 184 where his Lordship recognised that the words “incidental to” extend the ambit of an order for costs to costs incurred as part of the preparation for litigation. His Lordship could not see why costs should not be incurred as part of the preparations for negotiations, and as incidental to them, just as they may be incurred as part of the preparations for litigation. In this case, what those costs are will be a matter for the assessing officer. Although it is ultimately a matter for the person making the assessment, it is obvious the relevant critical date would bear a relationship to the communication of a direct threat to take proceedings in this Court.

25. It would be surprising indeed if these incidental costs did include the costs of making any development application or an application to modify an existing development consent in response to complaints made to council or even threats by third parties to commence proceedings in this Court or any other jurisdiction such as the Local Court. Costs incurred in relation to proceedings, or threatened proceedings, in another court could not be incidental to the proceedings in this Court unless they were incurred coincidentally or specifically as part of the preparation for the present litigation.

Orders

26. For all of the reasons set out and discussed above, I make the following order:-

1. The applicants are ordered to pay the second respondents’ costs of and incidental to the proceedings on a party and party basis in the sum agreed or assessed.

I hereby certify that this and the preceding 6 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot

Associate