Grant v Kiama Municipal Council (No 2)
[2005] NSWLEC 629
•11 October 2005
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Grant v Kiama Municipal Council (No 2) [2005] NSWLEC 629
PARTIES:
APPLICANT
J B Grant
RESPONDENT
Kiama Municipal Council
CASE NUMBER: 11245 of 2003
CATCH WORDS: Costs
LEGISLATION CITED:
Land and Environment Court Act 1979
Land and Environment Court Rules 1996
.
CORAM: Moore C
DATES OF HEARING: 11 October 2005
EX TEMPORE DATE: 11/10/2005
LEGAL REPRESENTATIVES
APPLICANT
Ms L Byrnes, barrister
INSTRUCTED BY
Thurlow Fisher
RESPONDENT
Mr P Moggach, solicitor
Kearns and Garside
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMoore C
11 October 2005
03/11245 J B Grant v Kiama Municipal Council
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
JUDGMENT
1 This is a decision in response to a Notice of Motion in proceedings 11245 of 2003 which was an appeal by Mr Grant against the refusal of a development application by Kiama Municipal Council (the council). The decision on the merits of the application is Grant v Kiama Council [2005] NSWLEC 58.
2 The Notice of Motion is filed on behalf of the council and seeks costs for a number of specified elements in the proceedings - those costs being sought despite the fact that the council is, in technical terms, the unsuccessful party to the proceedings.
3 The application in the Notice of Motion seeks specific costs for four elements, one of which, a telephone callover on 2 May 2005, is conceded, properly, by Ms Byrne, counsel for the applicant.
4 The other three matters are sought for a variety of reasons and relate to issues that were at various points in the case in contest between the parties, namely:
water supply and effluent treatment issues for which legal and Court expert costs are sought;
landscape issues for which legal costs are sought; and
issues relating to the design of the intersection of the entranceway to the site with the Princes Highway for which legal and expert costs are sought.
5 The total amount sought is a little over $7000 and that claim is accompanied by an application that the applicant pay the respondent’s costs of this motion seeking costs.
6 The starting point for my consideration of the application in the provisions of the Land and Environment Court Rules 1996 is Part 16 Costs which set out in, r 4, the provisions that apply in classes 1, 2 and 3 of the Court’s proceedings - namely that a fair and reasonable test was substituted (operating from 2 February 2004) for the previously-applying test which was that costs would only be awarded in exceptional circumstances.
7 The three tests, that is exceptional circumstances at the most difficult: fair and reasonable as an intermediate stage; and the costs follow the event test (endorsed by the High Court in Latoudis v Casey [1990] 170 CLR 534) represent various points upon a continuum for exposure to costs.
8 The test that I am to apply is the one contained in the rules to which I have adverted.
9 Fairness and reasonableness are neither confined to nor contingent on a party winning the result which it has sought in the proceedings.
10 It is not uncommon in the proceedings now followed in the Court in Class 1 proceedings for a party to be required to give an undertaking to meet additional costs for assessments and the like arising out of amended plans or from other forms of indulgence that cause the proceedings to follow a different path from that which might originally have been envisaged. It is in that context that I consider the three contested costs elements in these proceedings.
11 With respect to matters 1.1 and 1.2 in the application for costs, (that is the matters that relate to water supply and effluent treatment), it is clear from the affidavit of the council’s solicitor, Mr Moggach, that the work that was undertaken by the court-appointed expert, Mr MacIntosh, between the time of his appointment and approximately 11 May 2004 (when he reported to both the council and to the applicant that he did not have sufficient information to enable him to determine matters), was merely work in discharge of what I consider to be the proper agreed brief given to him as a consequence of his agreed appointment as a court-appointed expert on those issues.
12 As a consequence, I am satisfied that it would not be appropriate to make any order for costs in favour of the council for those elements of Mr MackIntosh’s duties (nor any legal costs associated with having Mr MackIntosh discharge those duties) up to and including 11 May 2004.
13 There is, however, in my view, a turning point from that date. It was from that date that it became clearly identified by the Court-appointed expert that amendments to the plans dealing with that aspect of the application were required and that further professional work by the council’s solicitor and by Mr MacIntosh was required to deal with them.
14 In conventional terms, had I been asked at some stage for leave to amend the plans with respect to that, I would have required of the applicant an undertaking to meet all the additional costs associated with such amendment.
15 The effect of this motion, in effect, is to ask me now to do this. I am not asked to make any order for contribution toward the cost of the council’s processing of those amended plans, I am simply being asked to make an order for professional costs. I am satisfied that, as the price of permitting the applicant to amend its plans in that regard, it would be appropriate for me to seek the concurrence of the Acting Chief Judge pursuant to s 69(8) of the Land and Environment Court Act 1989 to the making of an order for both Mr MacIntosh’s costs portion otherwise borne by the council post-11 May 2004 and for the council’s legal costs relating to that issue post that date. The total sought for this is $3393.75 and should be paid by the applicant.
16 The second element relates to landscaping. Here, I am satisfied that the costs which are sought for the period effectively between 6 June 2004 and 24 December 2004 (when the final detailed landscaping plan was filed) relate to ordinary matters in the ebb and flow of a contested hearing in this Court. There are no circumstances peculiar to that period of time and that issue which would make it fair and reasonable for me to impose the additional $400 of legal costs sought by the applicant.
17 With respect to the design of the entrance to the property from the Princes Highway, the position is set out at paras 46-51 of Mr Moggach’s affidavit and, in summary, they are these:
on 4 June 2004 a statement of evidence was served by a traffic engineer engaged by the applicant who proposed a particular road entrance design;
the standard of that intersection design was contested by the council; and
Mr Moggach arranged for an officer of the Roads and Traffic Authority (the RTA) to prepare a report responding to the applicant’s expert evidence and proposing an alternative design acceptable to the RTA.
18 The design of the entrance was not a matter that was contested before me in the hearing as, following the filing of the statement of evidence by the RTA officer, the applicant accepted the RTA’s proposed design and therefore the reports were not needed to be dealt with by me.
19 I am satisfied that this element, too, is a matter relating to the normal ebb and flow of contested proceedings. I am certainly not satisfied that there is anything in the conduct of the applicant, in this regard, that would make his conduct so unreasonable as to require these costs to be awarded to the respondent council.
20 I am therefore of the opinion that the order to the making of which I should seek the concurrence of the Acting Chief Judge will be that the applicant is to pay the council the sum of $3778.75 – this being the total of the works undertaken by Mr Moggach and Mr MacIntosh after 11 May 2004 and costs of the telephone callover of 2 May 2005 with such sum to be paid by the applicant to the respondent within sixty days of the date of making of the order.
21 With respect to the costs of this morning’s hearing, as the respondent and the applicant are both almost half successful, I do not propose to seek the concurrence of the Chief Judge to the making of any order for costs for this hearing.
22 The parties’ attention is drawn to the provisions of para 10 of the Consolidated Practice Direction that will give them, in effect, fourteen days from the date of the provision of these reasons together with the proposed draft order in which to make any submissions that they might wish to make to the Acting Chief Judge as to whether or not he should concur in the making of the order that I have proposed.
Tim Moore
Commissioner of the Court