Funtime Investments Pty Limited v Yass Valley Council

[2004] NSWLEC 300

Land and Environment Court

of New South Wales

CITATION:	Funtime Investments Pty Limited v Yass Valley Council [2004] NSWLEC 300
PARTIES:	APPLICANT Funtime Investments Pty Limited RESPONDENT Yass Valley Council .
FILE NUMBER(S):	10870 of 2003
CORAM:	Moore C
KEY ISSUES:	Costs :- "Fair and reasonable" .
LEGISLATION CITED:	Land and Environment Court Rules 1996 Pt 16, r 4(2) Administrative Decisions Tribunal Act 1997 s88(1) Civil and Administrative Tribunal Act 1998 (Vic) s109 Land and Environment Court Act 1979 s69(8) .
CASES CITED:	Latoudis v Casey (1990) 170 CLR 534; Brooks Maher v Cheung [2001] NSWADT 18; CSA Architects Pty Ltd v Woollahra Municipal Council (No. 2) [2004] NSWLEC 234; .
DATES OF HEARING:	26 March, 20 April and 25 May 2004
DATE OF JUDGMENT:	06/16/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Bilinsky, solicitor B Bilinsky & Co RESPONDENT Mr A Bradbury, solicitor Minter Ellison

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Moore C

16 June 2004

COUNCIL

Introduction

1 On 25 May 2004, I gave an extempore decision agreeing to consent orders in this matter despite a number of submissions containing objections to the proposed development. At the conclusion of my decision on those matters, Mr B Bilinsky, solicitor for the applicant, applied for costs for two earlier occasions when the matter had come before me and for the additional costs incurred by the applicant in the commissioning of a report dealing with one of the issues raised by an objector.

2 I reserved my decision on the costs application and indicated that I would give it on 16 June 2004.

3 To enable a proper understanding of the reasons which support the application for costs, it is appropriate to set out the elements of a chronology relevant to the application as it came before me. These elements are:

• On 13 November 2003, Talbot J agreed to vacate hearing dates of 17 and 18 November 2003 for this appeal in order to permit the then Yass Shire Council to consider revised plans. These orders included an order for the applicant pay for the respondent's costs thrown away prior to 27 October 2003;
• On 21 January 2004, an ordinary meeting of the council gave agreement to the amended proposal, in principle, subject further notification and consideration of any submissions arising from the notification;
• On 30 January 2004, the amended plans are provided to the council;
• On 2 February 2004, by telephone call over the matter is set down for hearing for half a day on 26 March 2004;
• On 9 February 2004, the amended plans are notified to all those who had previously lodged submissions. A period of 21 days is allowed for any response to this notification;
• On 11 February 2004, the Yass Shire Council is dissolved and, as part of an amalgamation, becomes part of the Yass Valley Council. An administrator is appointed to run the Yass Valley Council;
• On 25 February 2004, the Yass Valley Council meets but does not consider the application. I understand that this is because the 21 day period for notification responses has not expired;
• On 24 March 2004, the Yass Valley Council meets and resolves to agree to enter into consent orders at the hearing on 26 March;
• On 25 March 2004, the proposed form of the consent orders are forwarded to the applicant's solicitor;
• On 26 March 2004, the proposed consent orders came before me. It became obvious from my examination of the file, prior to that hearing, that the council had not complied with the provisions of Practice Direction 9, as amended, (the practice direction) particularly with respect to the detailed provisions of that practice direction requiring specified matters concerning the proposed consent orders to be notified to objectors. Mr A Bradbury, solicitor for the council, conceded this. I provided the legal representatives with a copy of the practice direction. During the course of this hearing, a number of documents were tendered, including a report which had been presented to the council on 24 March. As a consequence, I gave detailed directions to the parties (the terms of which were subsequently confirmed by written directions that day) to set out the process by which the practice direction might be satisfied. I adjourned the matter for further mentioned before me on 20 April 2004;
• On 20 April 2004, I was provided with a letter of objection dated 14 April 2004 from Mr T Considine, a neighbour of the site of the proposed development. Mr Considine’s earlier objection dated 23 January 2004, on page 3, had specifically proposed that the present boundary fence with his property be required to be replaced with a colourbond boundary fence at the applicant's cost. The council officer’s report to the meeting of 24 March 2004 had described this issue in terms of "Comments indicating the boundary fencing ought to be solid i.e. ‘colourbond’ or similar and at a height of 1.8 m." The proposed response was that the conditions would require solid boundary fencing. The council was not properly informed of Mr Considine’s objection and request. His letter of objection of 14 April 2004 raised specific objections to a timber fence and repeated his request for the erection a colourbond boundary fence at the applicant's cost. No material was provided by the council as evidence in response to this objection;
• On 20 April 2004, I was also provided with a letter of objection dated 22 March and received by the council on 30 March 2004 from the President of the Yass & District Historical Society objecting to the proposal on the basis that it was "completely out of character with the heritage study and the character of the Dutton Street area"” The heritage study referred to in this sentence is able to be identified from other elements of this letter. The council officer’s report to the meeting of 24 March 2004 identifies, on page 47 of that document, as the third point raised from the public submissions, that matters concerning "Impact in terms of heritage” had been raised in those submissions. However, in the three pages of analysis of the public submissions in that officer’s report (commencing at page 48), no commentary or response is included which relates to heritage matters.

4 I indicated to the parties, at the hearing on 20 April 2004, that, as I had no evidence which dealt with these two specific objections, I considered I was not able to deal with the matter until I had evidence in response to those objections. As a consequence, I gave further directions to the parties in the following terms:

1. The respondent to file and serve any evidence concerning the fence issue by 5 PM on 29 April;
2. The respondent to file and serve a copy of the heritage study mentioned in the letter of the President of the Yass & District Historical Society of 22 March together with any evidence on this issue by 5 PM on 29 April;
3. The applicant to file and serve any evidence in reply by 5 PM on 14 May; and
4. The matter be set down for a one-hour hearing at 9 before me on 25 May.

5 At the hearing on 25 May 2004, Mr Bradbury tendered three documents addressing the heritage issue. These comprised the Yass Heritage Tourism Master Plan Precinct Final Report; the Yass Precinct Heritage Audit and the Yass Township Heritage Study. A statement of evidence from Mr Paul De Szell, the council's Manager Development Services was also tendered. Although Mr De Szell’s statement of evidence is undated, it was filed on 7 May 2004. This statement of evidence dealt with the issue of the boundary fence. The applicant did not object to any of these documents.

6 Mr Bilinsky tendered, without objection, a report from Mr G Edds, a consulting heritage architect, responding to the Heritage Society concerns. This report, which is dated 11 May 2004, relies, primarily, on the three heritage documents noted above and on Mr De Szell’s statement of evidence.

7 The three heritage documents had been filed with Court on 5 May 2004 pursuant to my directions. Having read these reports and Mr De Szell’s statement of evidence, I gave an extempore decision agreeing to the proposed consent orders as I was satisfied that the objections did not provide any sufficient basis to refuse to do so.

The submissions as to costs

8 As earlier indicated, on 25 May, Mr Bilinsky applied that the applicant be awarded costs for the two earlier occasions when the matter had come before me and for the additional costs incurred by the applicant in the commissioning the report by Mr Edds. I then heard submissions from the representatives of the parties. Essentially, Mr Bilinsky’s submissions were that, had the council, however constituted, complied with the practice direction and the necessity to respond to the objections, the costs incurred by the applicant would not have been so incurred. He also submitted that it was necessary for the applicant to provide the report by Mr Edds as Mr De Szell’s statement of evidence did not deal with the heritage issues. He further submitted that such approach would be consistent with the approach taken by Talbot J in November 2003.

9 In response, Mr Bradbury, in effect, submitted that the intervention of the appointment of an administrator as a consequence of the dissolution of the Yass Shire Council and creation of the Yass Valley Council was an unforeseeable event which interrupted the processes which would otherwise have been followed. The consequence of this, in his submission, was that no costs should be awarded. He also submitted that, if I were minded to consider any costs appropriate as a consequence of the earlier hearings, such costs should be confined to the hearing of 26 March. He also submitted that there was no onus on the applicant to submit the statement of evidence from Mr Edds as the council documentation adequately dealt with that issue.

The context for consideration of this costs application

10 Prior to 2 February 2004, the practice in the Court was that the discretion to award costs was only exercised when there were exceptional circumstances warranting it. From this date, however, a new provision in the Rules was inserted which altered this position, relevantly, for Class 1 cases: see Land and Environment Court Rules 1996 Pt 16, r 4(2). The relevant provision of the Rules now reads:

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 a costs order is, in the circumstances of the particular case, fair and reasonable.

11 This change the Rules was accompanied by an amendment to the Consolidated Practice Direction which, relevantly, reads:

10. Where an application for costs is made in 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 In the present case, I have been asked to invoke the provisions of Pt 16 r 4(2).

13 To consider whether it is appropriate to do so, I have had regard to how I should approach determining whether, in the circumstances of the present case, it is fair and reasonable that I seek the consent of the Chief Judge to such an order.

14 In the ordinary course for a successful litigant in most jurisdictions, the practice would be that costs would follow the event: see Latoudis v Casey (1990) 170 CLR 534. However, it is clear that the new provision of the Rules do not intend that this be the case as a test of fairness and reasonableness is required as a threshold.

15 In New South Wales, the only somewhat comparable position arises in s 88(1) of the Administrative Decisions Tribunal Act 1997 which provides that the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs

16 However, the Administrative Decisions Tribunal has taken a restrictive approach to interpretation of this section. In Brooks Maher v Cheung [2001] NSWADT 18, the Tribunal’s Appeal Panel said:

14. We are satisfied that the plain meaning of "special circumstances" is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But "special circumstances" alone are not sufficient. Under s 88 (1), the special circumstances must "warrant an award of costs." The circumstances which would or would not "warrant an award of costs" cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted.

17 I consider that this approach is unduly restrictive and not appropriate to be applied to the fair and reasonable test in the Court’s Rules.

18 Although possessing a wider jurisdiction in administrative matters than exercised by Commissioners of the Court, the Victorian Civil and Administrative Tribunal is the body which determines merit appeals against planning decisions in that State. Some guidance can be found in s 109 Civil and Administrative Tribunal Act 1998 (Vic). Section 109(3) deals with the circumstances when a costs order may be made when exercising the discretion contained in s 109(2). The provision reads:

(3) The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to—

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant.

19 Although, obviously, not binding on me, this provision does set out the matters which the Victorian Parliament considered appropriate for assessing whether it was fair to award costs in the Victorian Tribunal.

20 Under the circumstances, the Victorian provisions afford a useful starting point for my consideration. However, I also note that (e) preserves a broad residual discretion to have regard to the circumstances of the case.

The merits of the present application

21 I turn, therefore, to consider whether it is fair and reasonable that I seek the Chief Judge's consent to make a costs order in the circumstances of the present case and, if so, in what terms.

22 There are three elements for which costs are sought for the applicant. These are:

• Costs for the March hearing;
• Costs for the April hearing; and
• Costs for the preparation of the report by Mr Edds.

23 Each of these elements warrants separate consideration on the facts.

The hearings

24 As to the hearing on 26 March, I consider that it would be fair and reasonable to award the applicant its costs for this hearing. I have so concluded for the following reasons. The amended plans were received by the council on 30 January and hearing date set out telephone call over on 2 February. It was not, however, until 9 February that the notifications to parties who had previously lodged submissions were despatched by the council. Had there not been a nine-day hiatus between the receipt of the plans and this notification, the 21 day period for responses could reasonably have been expected to have expired sufficiently prior to 25 February 2004 to enable the matter to have been dealt with by the council meeting on that date. Although the council dissolution intervened, there is no evidence which would demonstrate that such intervention would have prevented the matter being dealt with at that meeting.

25 Even if this were not the case, there is no evidence that the council or its legal advisers considered the necessity to comply with the practice direction prior to my drawing the matter to Mr Bradbury’s attention at the hearing. There is certainly no indication that the council or its legal advisers took any steps in or prior to the notification of the proposed form of the consent orders to the applicant's solicitor on 25 March to notify the applicant that there might be any difficulty, as a consequence of the provisions of the practice direction, in my considering the consent orders on 26 March. Had the council or its legal advisers considered the issue of compliance with the practice direction, it would have been a simple matter to arrange for vacation of the mention and thus avoid the costs of attendance to the applicant.

26 As to the mention on 20 April, the onus to provide evidence in response to the objections clearly lies with the council. No evidence was presented in response to the objections from Mr Considine or the Historical Society set out above in the chronology. It was because of this lack of evidence that the further adjournment was necessary. I am satisfied that it would also be fair and reasonable for the council to pay the applicant's costs for this mention.

27 These conclusions are consistent with the provisions of s 109(3)(a)(iv) of the Victorian legislation.

Mr Edds’ report

28 In CSA Architects Pty Ltd v Woollahra Municipal Council (No. 2) [2004] NSWLEC 234, Brown C considered the issue of whether or not the tender of a council officer’s report may be sufficient documentation to deal with a particular issue without the necessity of incurring the additional expense of commissioning an expert report on that issue. He concluded that, in the circumstances of that case, it was unnecessary. The relevant portion of the decision reads:

13. In this case, the council supported and explained the issues through the tender of the council officer’s report. The position, which the council adopted in relation to the balustrade, comes from the council's Heritage Officer, Mr Zoltan Kovacs. Although Mr Kovacs is no longer employed by the council, his report was used in the first application and replicated in the current application. While the Court did not form the same view as Mr Kovacs, I accept that the amendments sought by Mr Kovacs had some merit and were not entirely without a rational basis.

14. Mr Rigg correctly submits that there is no obligation on any party to the proceedings to tender expert evidence. Indeed, as I have indicated earlier, the Chief Judge has on a number of occasions expressed concern that a "culture" has developed where expert evidence is thought to be required before a party can expect to succeed on an issue. This is clearly not the case. If there are deficiencies in an application these can be identified and explained to the Court which in many cases will not require expert evidence to understand the alleged difficulties or to come to view as to whether the proposed development should be approved.

29 I consider that an analogous position applies in the present case. The three heritage documents which were tendered by the council provided sufficient information for me to determine that issue. These documents were filed with the Court some four days before the date of Mr Edds’ report. There was no suggestion to me on behalf of the applicant that these documents were not also served on the applicant in a timely fashion and, indeed, Mr Edds refers to them in his report.

30 The directions which I gave on 20 April expressly required the council to file and serve the heritage document referred to in the Historical Society's letter of objection. Whilst I also gave a direction at the 20 April hearing which permitted the applicant to file evidence in reply if it wished to do so, I am satisfied that there was no forensic necessity for it to have commissioned Mr Edds’ report as there were no matters of contention between the material contained in the heritage document and the conclusions expressed by Mr Edds.

31 For this reason, I am not persuaded that it would be fair and reasonable to require the council to meet the applicant's costs for the preparation of this report.

Conclusion

32 As a consequence of what I have set out above, I propose to seek the consent of the Chief Judge, pursuant to s 69(8) of the Land and Environment Court Act 1979, to the making of the following order:

The respondent pay the applicant's costs for the hearings on 26 March and 20 April 2004 as agreed or assessed .

Commissioner of the Court