GHD Pty Ltd v Pristine Waters Council - [2001] NSWLEC 230

Land and Environment Court

of New South Wales

CITATION: GHD Pty Ltd v Pristine Waters Council [2001] NSWLEC 230

PARTIES:

APPLICANT
GHD Pty Ltd
RESPONDENT
Pristine Waters Council

FILE NUMBER(S): 10109 of 2001

CORAM: McEwen AJ

KEY ISSUES: Costs :- in class 1 - exceptional circumstances - factors relevant to exercise of discretion

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 94
Land and Environment Court Act 1979, s 69

CASES CITED: Anibal 21 Pty Ltd v Waverley Council (1998) 98 LGERA 296;
Berk v Woollahra Municipal Council [No 2] (1993) 78 LGERA 180;
Foboco Pty Limited v Kiama Municipal Council (2000) 109 LGERA 160;
Macdonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211;
Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78;
Minas v Botany Municipal Council (1988) 65 LGRA 129;
Quota Corporation v Leichhardt Municipal Council (1981) 45 LGRA 319;
Raiti v Leichhardt Municipal Council (1991) 72 LGRA 333;
Ray Group Pty Ltd v Byron Shire Council (1998) 98 LGERA 378

DATES OF HEARING: 23/08/2001

EX TEMPORE
JUDGMENT DATE :
08/23/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Wilson (Barrister)
SOLICITORS
Stacks - The Law Firm
RESPONDENT
Mr J Whitehouse (Solicitor)
SOLICITORS
Minter Ellison

JUDGMENT:

IN THE LAND AND 10109 of 2001
ENVIRONMENT COURT McEwen AJ
OF NEW SOUTH WALES 23 August 2001

GHD Pty Ltd

Applicant

Pristine Waters Council

Respondent

JUDGMENT

1. This matter comes back before me in relation to the question of costs arising out of my determination of the proceedings on 27 July 2001. The applicant seeks costs in the matter for a variety of reasons. Mr Wilson, who now appears for the applicant, identifies the following bases upon which he submits the applicant ought have an award of costs in its favour for the hearing.

2. Firstly, Mr Wilson identifies the three issues which were considered in the proceedings being nexus, apportionment and occupation rate; he also touched upon the question of the road. Nexus and apportionment were matters upon which the applicant was not successful. In relation to the road the applicant was also not successful. Its argument as to the appropriate occupation rate to be applied in redetermining the appropriate calculation under s 94 of the Environmental Planning and Assessment Act 1979, was successful.

3. Mr Wilson referred to a series of letters exchanged by the parties’ representatives stretching back to March 2000 where his client ventilated with the Council various challenges to the contributions under s 94. Those letters, apart from raising questions about the matters which were raised in these proceedings, also raised challenges to the contribution nominated for the water scheme and for the sewerage augmentation scheme.

4. The thrust of the correspondence Mr Wilson submitted demonstrated a preparedness on the part of the applicant to negotiate with the Council in good faith to resolve the issues it wished to argue about, such that at the end of the day his submission was that in the context of that correspondence and those offers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 230
Decision Date: 08/23/2001

CaseChat Overview and Summary

GHD Pty Ltd sought a review of the decision of Pristine Waters Council regarding contributions under s 94 of the Environmental Planning and Assessment Act 1979. The matter was determined by the Land and Environment Court of New South Wales, with McEwen AJ presiding. The primary legal issue the Court had to decide was whether the applicant, GHD Pty Ltd, was entitled to costs for the hearing, considering the arguments presented by both parties and the conduct during the proceedings.

The applicant argued that the hearing was unnecessary and, therefore, wasteful due to the Council's intransigence in negotiating with the applicant in good faith. The applicant submitted that the Council’s refusal to engage in meaningful dialogue led to the necessity of the hearing. On the other hand, the Council contended that the applicant's lack of clarity and late particularisation of its case necessitated the hearing and that there was no basis to find the Council's conduct improper or warranting costs against it. The Council cited various authorities to support its position that it had properly discharged its duty and acted in good faith.

The Court examined the Practice Direction on costs and the relevant authorities, finding that there was no evidence to suggest the Council acted improperly, in bad faith, or made material factual errors. The Court found that the Council had a successful outcome on most issues, and the applicant's primary success was on the issue of the occupation rate. Additionally, the Court noted that had the applicant defined its arguments more clearly and timely, the matter might have been resolved without a hearing. Consequently, the Court dismissed the applicant's motion for costs and ordered the applicant to pay the Council's costs of the motion.

Orders