Fuller v Bellingen Shire Council

[1988] NSWLEC 126

Land and Environment Court

of New South Wales

CITATION:

Fuller v Bellingen Shire Council & Anor [1988] NSWLEC 126

PARTIES:

APPLICANT
L.C. Fuller

FIRST RESPONDENT
Bellingen Shire Council

SECOND RESPONDENT
Commercial Radio Coffs Harbour Limited

FILE NUMBER(S):

40171 of 1985

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

CASES CITED:

Arnold v. The State of Queensland & Anor, Wilcox J (1987);
Alan Campbell v. Minister for Environment & Planning and Ors,(1988);
Commercial Radio Coffs Harbour Limited v. Fuller (1986)

DATES OF HEARING:

DATE OF JUDGMENT:

07/13/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: On 16th June, 1988 an application for declarations and orders concerning the lawfulness of a development consent granted by the first respondent was dismissed, and I refer to my reasons for judgment. Both respondents seek orders for costs of the proceedings.

It is well established that in proceedings in Class 4 of the jurisdiction of the Land and Environment Court the general rule is that the successful party is entitled to an order for costs. Any party seeking a departure therefrom must establish the existence of special circumstances. The applicant submits that the Court is vested with a wide discretion and in this case costs should not necessarily follow the event because, it is said, the proceedings were brought by a "public interest group"; cf. Arnold v. The State of Queensland & Anor, Wilcox J. in Federal Supreme Court, 13th May 1987 (unreported).

The reasons for judgment in that matter were recently considered in this Court by Cripps C.J. in Alan Campbell v. Minister for Environment & Planning and Ors, 24th June 1988 (unreported). He noted the significantly different evidentiary basis from Arnold's case to establish that the applicant represented part of the public interest. In Campbell's case he was unaware of the actual membership, objects, purpose or constitution of the unincorporated body which the applicant represented. Similarly, in this case I know little more than that Lynette Fuller was a member of an unincorporated body known as the "Save Our Scenery Committee", which was active in the locality in opposition to the approval and use of the subject development. I also see little to distinguish the applicant as a member of that body from the usual applicants in proceedings of this nature in Class 4. I respectfully agree with and adopt the reasoning of Cripps C.J. in so far as it applies to the facts of this matter, and would not refuse an order

for costs on this ground alone.

The second respondent contributed to the delay and expense in the determination of the matter by an unsuccessful challenge to jurisdiction; see Commercial Radio Coffs Harbour Limited v. Fuller, (1986) 60 A.L.J.R. 542. After the resolution of that matter, whilst the second respondent was represented by senior counsel, he exercised almost a "watching brief". I accept that the second respondent was faced with an application for orders which, if made, might involve serious financial hardship, but the question is whether it is entitled to costs for two counsel.

I am satisfied in this case that the applicant properly brought to this Court public interest litigation to resolve a dispute which was made more complex by unusual procedures which had been adopted by Council in its determination of the application, and resolutions which were ambiguous and uncertain. Whilst ultimately the Court was satisfied that the obligations imposed by the provisions of the Environmental Planning and Assessment Act, 1979 for environmental assessment had been observed, Council is now better informed as to its powers and duties, and will no doubt take steps to ensure that similar problems and uncertainties are avoided in future.

In my judgment this is not a case in which costs should automatically follow the event. I make no order for costs with respect to the first respondent. In my judgment I should make orders for costs only with respect to the second respondent but, whilst I was assisted by submissions of senior counsel, I am not satisfied that costs for two counsel are warranted.

I order the applicant to pay the costs of the second respondent of or in relation to proceedings in this Court on and from 9th May, 1988, but not including costs for senior counsel.