GHD Pty Ltd v Pristine Waters Council
[2001] NSWLEC 230
•08/23/2001
Land and Environment Court
of New South Wales
CITATION: GHD Pty Ltd v Pristine Waters Council [2001] NSWLEC 230 PARTIES: RESPONDENT
APPLICANT
GHD Pty Ltd
Pristine Waters CouncilFILE 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 69CASES 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 378DATES OF HEARING: 23/08/2001 EX TEMPORE
JUDGMENT DATE :
08/23/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr D Wilson (Barrister)SOLICITORS
Stacks - The Law FirmRESPONDENT
SOLICITORS
Mr J Whitehouse (Solicitor)
Minter Ellison
JUDGMENT:
IN THE LAND AND 10109 of 2001
ENVIRONMENT COURT McEwen AJ
OF NEW SOUTH WALES 23 August 2001
- Applicant
- Respondent
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 a hearing before this Court was not necessary and, in effect, was wasteful. He submitted that it was only through the Council’s intransigence in dealing with those approaches that a hearing became necessary and hence the costs of that hearing were wasteful.
5. Mr Whitehouse in reply firstly identified what he submitted to be an ongoing lack of definition in the applicant’s delineation of its challenge. He pointed to the correspondence where the applicant maintained challenges not only to the matters which became the subject of consideration in these proceedings but also a challenge to the water and sewerage contributions. Importantly, however, he identified the lack of response to particulars requested from the solicitors acting for the applicant where those particulars sought to tie down with precision what the applicant was saying the basis of its challenge was and what it contended for.
6. Ultimately on the day before the hearing commenced the applicant provided Mr Whitehouse’s office with a calculation of figures for the three matters which became the subject of these proceedings, namely roads, public open space (or its embellishment), and community amenities. However, notwithstanding the provision of those figures, the manner in which the applicant had particularised its case was by way of a report prepared by Mr Brady on behalf of the applicant, wherein the argument which was to be presented at court was sought to be summarised; I will return to that shortly.
7. Mr Whitehouse submitted that that lack of definition in particulars and the figures the applicant contended for required the matter to come before the Court; and that the lateness of it being presented, coupled with the way in which it was, meant that there was no true opportunity for the Council and the applicant to have meaningful dialogue to resolve the issues without a hearing.
8. In his submissions Mr Whitehouse referred the Court to a variety of authorities to give ground to his submission that the Council here was not guilty of any conduct warranting the visiting upon it an order for costs. In light of what was said by the Court of Appeal in Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78, in particular by Handley JA, it is appropriate that I turn briefly to the various authorities Mr Whitehouse cited in support of the propositions which he put.
9. In Maurici Handley JA, with whom the other members of the bench concurred, indicated the Practice Direction of this Court in relation to costs in matters of this nature ought not apply. He was dealing, however, with an appeal in a matter which related to a taxation statute in respect of which there was a distinguishable difference, namely that where a citizen wished to argue the appropriate taxation impost he or she could go either to the Supreme Court or to this Court to challenge the notice or the impost. In the Supreme Court there was no Practice Direction similar to that which obtains in this Court in relation to costs. In addition to that anomaly Handley JA found that the manner of operation of the Practice Direction would work as a rigid fetter on the discretion otherwise granted to this Court under the appropriate section, s 69 of the Land and Environment Court Act 1979.
10. A further distinguishing feature of that appeal was that Handley JA found that Lloyd J’s decision at first instance confined the exercise of the discretion simply to the issue of exceptional circumstances within the meaning of the Practice Direction, that is that his Honour at first instance did not look at any broader questions, only that issue within the context of the Practice Direction. However, the Practice Direction has been regularly touched upon in decisions of this Court. The Chief Judge, in Berk v Woollahra Municipal Council [No 2] (1993) 78 LGERA 180 at 184 noted that the practice direction was brought into force “to formulate a longstanding policy of the Court based on the philosophy of encouraging parties to seek review rather than discouraging them by burdening them with the risk of an award of costs against them”. Whilst the Practice Direction has been pronounced upon by the Court of Appeal in Maurici it does not mean that the longstanding practice of this Court in relation to matters of this nature ought not be given regard to so long as the exercise of the discretion under s 69 is not improperly fettered or constrained.
11. I turn then briefly to the submissions put by Mr Whitehouse in relation to the authorities he cited.
(a) In support of the proposition that no finding could be made here that the Council’s approach to the issues before the Court, and indeed in running the matter, was neither wrong in law nor unfounded in fact, he cited the decision of Cripps J, as he then was, in Quota Corporation v Leichhardt Municipal Council (1981) 45 LGRA 319 at 325.
(b) There was no demonstration of the Council acting in bad faith or acting unfairly; per Talbot J in Ray Group Pty Ltd v Byron Shire Council (1998) 98 LGERA 378 at 381.
(c) There was no erroneous assessment by the Council or mistake of a material fact, per Bignold J in Minas v Botany Municipal Council (1988) 65 LGRA 129 at 134.
(d) The Council did not defend the matter improperly, it did not run dead, but properly discharged its duty in relation to the issues that were raised by the applicant, per Hemmings J in Raiti v Leichhardt Municipal Council (1991) 72 LGRA 333 at 335. It is not without significance that Hemmings J’s decision was referred to and approved by Pearlman CJ in Berk v Woollahra to which I have already referred.
(e) There could be no finding that the Council had acted capriciously or without foundation; per Talbot J in Anibal 21 Pty Ltd v Waverley Council (1998) 98 LGERA 296 at 297.
(f) That in order for costs to be awarded the Court would need to find there was more than a mere mistake on the part of Council which was otherwise honestly made per Sheahan J in Foboco Pty Limited v Kiama Municipal Council (2000) 109 LGERA 160 at 171.
(g) Finally Mr Whitehouse submitted that there was no basis for any suggestion that the Council in conducting the matter acted frivolously, vexatiously, oppressively or improperly per Lloyd J in Macdonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211 at 215.
12. The submissions put by Mr Whitehouse in my view are appropriate and apt in the circumstances of this matter. There is no basis in the evidence to suggest that there was a basis to make findings of the types referred to in the cited authorities which would ground an award in favour of the applicant in these proceedings.
13. Mr Whitehouse then made submissions on the facts in this matter to the following effect. Firstly, that whilst neither party was fully successful, in relation to the issues of nexus and apportionment the Council had been successful. There was also an ancillary issue raised by the applicant that the monies obtained by the Council under its s 94 plans had not been expended in accordance with the plans and that the Council had no plans for future expenditure on works programs. Again the Council was successful in relation to those issues. The only matter upon which the applicant was successful was that relating to the occupation rate. The judgment made an analysis of the roads contribution and arrived at a conclusion which had not been contended for by either the parties but which in my view was available on the evidence.
14. Secondly, Mr Whitehouse noted that in relation to the mathematical mistakes, that both the basis and the manner of calculation, were conceded as mistakes at the outset of the hearing.
15. Next, he noted that until the evidence was filed in this matter that for a long time prior thereto the applicant maintained a challenge to both the water and sewerage contributions. From the evidence and the arguments put at trial it does not appear that much time or effort was spent in dealing with those prospective challenges. However, he does point to the fact that until the day before the hearing no hard figures were put by the applicant and no settlement proposal put, albeit Mr Wilson had referred me to a letter in April 2000 where an offer was put in relation to both the community amenities and roads at figures greater than those I found for those components.
16. Next Mr Whitehouse observed that these proceedings were not Class 4 proceedings challenging the plan itself, and that because the way s 94(11) works challenges of this type need to go before the Court to be resolved. Hence if there was a problem with a contributions plan the Council did not have an opportunity or capacity to settle the matter in the ordinary way other than by consent orders. What flowed from that in Mr Whitehouse’s submission was that Council could not settle this type of challenge in the ordinary fashion.
17. Finally he submitted that even if a proper offer had been put in a timely fashion the matter still needed to be determined given the public law content of the matters raised.
18. Mr Wilson in reply emphasised what he said had been a clear definition of the issues originally raised; and flowing from that the absence of any need for a hearing. However, when the hearing of the matter had commenced counsel for the applicant was asked to identify the components of the claim and the basis upon which they would be challenged. I was taken to page six of the report by Mr Brady which sets out in bullet form five specific items of challenge. The first two deal with mathematical errors and were conceded at the outset. The third was the occupancy rates. The fourth and fifth were the absence of demand and an absence of plans for expenditure, the last two being matters resolved in the Council’s favour. It was with some difficulty that the matter progressed to the point where at the conclusion of the evidence there was still an absence of clarity as to aspects of the challenges, and the basis therefore in the applicant’s evidence.
19. Any opportunity to advance discussions for settlement were not pursued but that is not determinative. It can be said that it lies ill in the applicant’s mouth to complain of absence of opportunity to pursue settlement given what appears to have been an attitude of co-operation on the part of the Council; that is demonstrated by the fact that as soon as the mathematical errors were raised by the applicant the Council made concessions appropriate to those issues so that they did not take up any time at the hearing.
20. The applicant, however, has had some success in this matter. The original figure the Council contended for as a total contribution, at the hearing, was just over $100,000. That for which the applicant contended for at the hearing was a little under $30,000. Ultimately the finding I made was that the relevant condition be amended to a figure of some $63,611. Hence whilst the applicant has been successful in relation to the Council’s claim it has not been totally successful. On the other hand the Council has had a modicum of success.
21. As to the evidence the applicant brought before the Court and the issues the applicant pursued, it only achieved a finding in its favour in relation to the occupation rates. The issues of nexus, apportionment, roads and the question of the plans and monies not spent were all determined in the Council’s favour. Whilst the applicant has achieved a beneficial financial result it is obvious that it lost the bulk or the majority of the arguments it ran.
22. Further, had the applicant defined its arguments with sufficient clarity and in a timely fashion it is probable that a hearing could have been avoided and the parties approach the Court with consent orders. That did not happen due in my view to the applicant’s delay in delineating what was contended for and the rationale for it.
23. For that reason the motion for costs will be dismissed. In relation to the motion for costs I order that the applicant pay the Council’s costs of the motion.
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