Denny v Optus Mobile Pty Ltd (No 2)

[2023] NSWLEC 57

Land and Environment Court

New South Wales

Medium Neutral Citation:

Denny v Optus Mobile Pty Ltd (No 2) [2023] NSWLEC 57

Hearing dates:

Written submissions received on 6, 20 April 2023

Date of orders:

1 June 2023

Decision date:

01 June 2023

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See below in [17]

Catchwords:

COSTS – successful applicant in judicial review proceedings entitled to costs in absence of disentitling conduct – liability for costs of respondents who filed submitting appearance – consent authority liable to pay costs – beneficiary of development consent declared invalid not subject to costs order in circumstances of case

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Environmental Planning and Assessment Act 1979 (NSW), s 4.14

Gosford Local Environment Plan 2014 (NSW), cll 4.3 4.6

Uniform Civil Procedure Rules 2005 (NSW), rr 1.5 42.1, Sch 1

Cases Cited:

Brown v Randwick City Council (No 2) [2012] NSWLEC 28

Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463

Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27

Lu v Walding(No 3) [2022] NSWLEC 15

Platford v van Veenendaal and Shoalhaven City Council (No 2) [2018] NSWLEC 86

Category:

Costs

Parties:

Anthony Denny (First Applicant)
Helena Denny (Second Applicant)
Optus Mobile Pty Ltd (First Respondent)
Central Coast Local Planning Panel (Second Respondent)
Central Coast Council (Third Respondent)

Representation:

Counsel:
J McKelvey (First and Second Applicants)
N Eastman (First Respondent)

Solicitors:
HWL Ebsworth Lawyers (First and Second Applicants)
Ashurst (First Respondent)
Central Coast Council (Second and Third Respondents)

File Number(s):

2022/35494

JUDGMENT on costs

1. In Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27 (Denny No 1) I declared that a development consent granted to the First Respondent Optus Mobile Pty Ltd by the Second and Third Respondents (collectively the consent authority) for a mobile telephone tower was invalid. All the Respondents filed submitting appearances save as to costs. Consequently costs were reserved to enable any of the respondents to make submissions on costs if they chose within a specified timeframe. The First Respondent has made submissions on costs. I therefore now deal with costs of the substantive proceedings.

2. In Denny No 1 the development consent was declared invalid as the Applicants successfully made out the following grounds as described at [3]-[4]:

3. By Ground 1, the Applicants contend that the Panel had no power to grant the consent because the development was contrary to the height control set by cl 4.3(2) of the Gosford Local Environment Plan 2014 (GLEP), and the Panel made legal errors in its consideration of the cl 4.6 request submitted on behalf of the First Respondent.

4. By Ground 2 the Applicants contend that the Panel did not form the requisite opinion that either:

(a) the development conformed to the specification and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service as required by section 4.14(1) of the EPA Act; or

(b) the Development did not conform to the specifications and requirements of the version (as prescribed by the regulations) of document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service as required by section 4.14(1A) of the EPA Act.

Legislation

Civil Procedure Act 2005 No (NSW)

3. Section 98 of the Civil Procedure Act 2005 (NSW) provides as follows:

Part 7 Judgments and orders

…

Division 2 Costs in proceedings

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act—

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

I the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

…

Uniform Civil Procedure Rules 2005 (NSW)

4. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides as follows:

Part 42 Costs

Division 1 Entitlement to costs

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

5. Rule 42.1 applies in Land and Environment Court of NSW Class 4 matters pursuant to r 1.5 and Sch 1 Col 2 of the UCPR.

6. As I observed in Denny No 1 at [59] costs in Class 4 proceedings generally follow the event so that the Applicants as the successful parties would receive their costs in the absence of any disentitling conduct. At issue is whether all or some Respondents ought to be liable for the Applicants’ costs.

Applicants’ submissions

7. The Applicants submitted that given the usual costs rule the onus falls on an unsuccessful party to demonstrate a just basis for departure from the usual order. That the Respondents filed submitting appearances does not provide immunity from the usual costs order, see Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463 (Cutcliffe) at [50]. The Applicants had to incur costs in satisfying the Court that orders sought in the summons ought be made through adducing evidence and making submissions. All the Respondents should be jointly and severally liable for costs. In relation to the First Respondent’s submission that the guidelines in Cutcliffe should not be applied as a rule in every case where submitting appearances are filed, see Platford v van Veenendaal and Shoalhaven City Council (No 2) [2018] NSWLEC 86 at [28]. In relation to Ground 1, the application under cl 4.6 made by the First Respondent was infected by legal error concerning the application of cl 4.3 of the Gosford Local Environment Plan 2014 (NSW) (GLEP) height of buildings development standard. The consent authority relied on that application to make its decision. The First Respondent should also be liable for costs.

First Respondent’s submissions

8. The First Respondent submitted that it ought not be liable for costs as it chose not to defend the proceedings, see Brown v Randwick City Council (No 2) [2012] NSWLEC 28 (Brown) at [25]. Authorities such as Cutcliffe, Brown and Lu v Walding(No 3) [2022] NSWLEC 15 (Lu) indicate that a consent authority not the beneficiary of a consent ought to be liable in the circumstances of this case.

9. It is the consent authority’s error that caused the litigation as:

1. In relation to Ground 1 in the Summons, although the First Respondent’s cl 4.6 application accompanying the development application took what was considered to be an incorrect position on the application of the height control to a telecommunications tower, it is the consent authority’s power which determines the validity of the consent, and not the position taken by a proponent. Here, the power was not enlivened because there was not the formation of the requisite opinions by the consent authority, as is required by cl 4.6 (see Denny No 1 at [39]–[44)]. That is a matter that is not dependant on what a proponent says, but instead, on the consent authority fulfilling the preconditions required by cl 4.6 to be satisfied it has the power to do what it is purporting to do;

2. In relation to Ground 2 in the Summons, as the Court stated at [54]:

54. …The council DA Report dated 19 August 2021 does identify s 4.14 of the EPA Act. The referral of a report to the Rural Fire Service and the provision of conditions of consent provided by the RFS is noted. There was otherwise no material before the Panel which directed it to the state of satisfaction it was required to reach under s 4.14. No mention of bushfire or s 4.14 appears in the Panel’s reasons extracted in their entirety above. It is reasonable to draw the inference in these circumstances that the Panel did not reach the necessary state of satisfaction required by ss 4.14(1) or (1A). Failure to do so is a jurisdictional error as reaching that state of satisfaction was required, given the terms of s 4.14, before development consent could be validly granted.

10. The First Respondent had no role in this error.

Consideration

11. As highlighted above in [2] I declared the development consent granted to the First Respondent invalid on two bases of legal error. Ground 1, which I upheld, alleged that the consent authority’s determination of the cl 4.6 variation of a height development standard was infected by legal error, see Denny No 1 at [40]-[44]. Ground 2, which I also upheld, alleged that the consent authority failed to be satisfied that the development conformed to the specifications and requirements of the document entitled Planning for Bushfire Protection as required by s 4.14 the Environment Planning and Assessment Act 1979 (NSW) (EPA Act), see Denny No 1 at [54].

12. Considering firstly the Second and Third Respondents, collectively the consent authority, they are liable for costs as identified in authorities such as Cutcliffe as relied on by me in Lu at [116] in the circumstances of this case given the failures to comply with the statutory scheme in the EPA Act identified in relation to Grounds 1 and 2.

13. The only matter in issue is whether the First Respondent should also be liable for costs jointly and severally with the other respondents.

14. Ground 1 concerned the incorrect application under cl 4.6 of the GLEP provided by the First Respondent to the consent authority, which the latter relied on in considering variation to the development standard concerning height.

15. The error made by the consent authority arising in Ground 2 did not arise from any actions of the First Respondent.

16. While the First Respondent could be said to have contributed to the error made by the consent authority in relation to Ground 1 concerning cl 4.6, that was a matter about which the consent authority had to form its own opinion. Considering the two grounds of error as a whole I will not require the First Respondent to pay the Applicants’ costs.

Order

17. The Court makes the following order:

1. The Second and Third Respondents are to pay the Applicants’ costs of proceeding no. 2022/35494 as agreed or assessed.

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Decision last updated: 02 June 2023