Gregg v Northern Midlands Council
[2004] TASSC 10
•26 February 2004
[2004] TASSC 10
CITATION: Gregg v Northern Midlands Council [2004] TASSC 10
PARTIES: GREGG, John Patrick
GREGG, Jane Louise
v
NORTHERN MIDLANDS COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 3/2003
DELIVERED ON: 26 February 2004
DELIVERED AT: Hobart
HEARING DATE: 18 November 2003
JUDGMENT OF: Cox CJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellants: S P Estcourt QC, M D Duvnjak
Respondent: S B McElwaine
Solicitors:
Appellants: Gunson Williams
Respondent: Shaun McElwaine
Judgment Number: [2004] TASSC 10
Number of paragraphs: 27
Serial No 10/2004
File No LCA 3/2003
JOHN PATRICK GREGG and JANE LOUISE GREGG
v NORTHERN MIDLANDS COUNCIL
REASONS FOR JUDGMENT COX CJ
24 February 2004
The appellants are aggrieved at the decision of the Resource Management and Planning Appeals Tribunal ("the Tribunal") ordering that each party pay their own costs of civil enforcement proceedings. These proceedings were taken by the appellants in respect of a nuisance of which they no longer complain, as remedial action was taken by the respondent before the conclusion of the proceedings. They lodged an appeal purportedly under the Resource Management and Planning Appeals Tribunal Act 1993 ("the Planning Appeal Act") on the ground that "the Tribunal if properly directed as to the law could not have come to the conclusion to which the Tribunal came". Prior to the hearing of the appeal, three additional grounds were included, as follows:
"1 That the Tribunal failed to take into account a relevant consideration, namely that the Respondent remedied the emission of offensive odours in the vicinity of the Applicants' property complained of by the Applicant only after proceedings were instituted.
2 That the Tribunal took into account an irrelevant consideration, namely that it was unable to determine that the Applicants would have succeeded in obtaining an order for 'substantive relief' if the matter had proceed [sic] to a hearing on the merits.
3 The Tribunal erred in law in finding that it was unable to determine that the Applicants actions in obtaining expert evidence and pursuing the proceedings were a substantial cause of the Respondent taking action to prevent the emission of offensive odours in the vicinity of the Applicants' property by moving the main vent outlet to the far side of the Midlands Highway."
The initial proceedings were brought under the Environmental Management and Pollution Control Act 1994 ("the Environmental Act") seeking from the Tribunal an order under s48 "in respect of the environmental harm constituted by the offensive smells and vapours emanating from the Northern Midlands Council's sewerage pump station at Perth in Tasmania and that the vent pipe on the pumping station be extended so as to avoid the danger of an explosion from methane gas".
The Environmental Act, s48, relevantly provides:
"48 (1) Where –
(a)…
(b)…
(c)a person has caused environmental harm by contravention of this Act, any other Act or the repealed Act –
the Director, a council or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.
(2) …
(3) If after hearing –
(a)the applicant and the respondent; and
(b)any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings –
the Appeal Tribunal may, if it considers it appropriate to do so, by order do any of the things specified in subsection (5).
(4) …
(5) The Appeal Tribunal may do all or any of the following:
(a)require the respondent to refrain, either temporarily or permanently, from the act or course of action that constitutes the contravention of, the potential contravention of, or the failure to comply with, this Act;
(b)preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the contravention relates;
(c)require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal;
…
(12) For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993, an application under this section is deemed to be an appeal."
Mr McElwaine for the respondent argued that an appeal under the Planning Appeal Act, as this purported to be, was confined to errors of law. Mr Estcourt QC for the appellants did not claim during the hearing that the appeal was brought under the provisions of the Environmental Act, but after I had reserved my decision, he wrote to my Associate adverting to his failure to respond at the hearing to Mr McElwaine's submission that the appeal was limited to questions of law and submitting that the appeal could only be an appeal pursuant to the Environmental Act, s49, which confers a right of appeal not limited to questions of law. Mr McElwaine responded with a letter the following day pointing out that the notice of appeal did not purport to be lodged in reliance upon the Environmental Act but upon the Planning Appeal Act and the ground alleged errors of law. He submitted that the appellants should not be able to fundamentally alter the nature of their appeal by a letter written to the presiding judge after the conclusion of the case. In the alternative, he submitted that in any event the Environmental Act gives no right of appeal in respect of orders for costs.
The Environmental Act, s49, provides:
"49 (1) Subject to the Rules of the Supreme Court, an appeal lies to the Supreme Court against –
(a)an order of the Appeal Tribunal made in the exercise of the jurisdiction conferred by section 48; or
(b)a decision by the Appeal Tribunal not to make an order under that section.
(2) An appeal under this section must be instituted within 30 days of the date of the decision or order subject to appeal or such longer period as may be allowed by the Supreme Court."
Because an application under the Environmental Act, s48, is deemed to be an appeal for the purposes of the Planning Appeal Act, procedural and other provisions in respect of appeals contained in the Planning Appeal Act, including the power to order the payment of costs, are relevant to the application. That power is given by the Planning Appeal Act, s28(1), which is in these terms:
"28 (1) The Appeal Tribunal must make such orders in relation to the costs of an appeal as it thinks fit and in making such orders must take into account –
(a) the result of the appeal; and
(b) whether a party has raised frivolous or vexatious issues at the hearing; and
(c) whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and
(d) the capacity of the parties to meet an order for costs."
The Planning Appeal Act, s25(1) is as follows:
"25 (1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal."
The Environmental Act, s49, deals only with orders made by the Tribunal in the exercise of the jurisdiction conferred by s48 and with decisions by the Tribunal not to make an order under that section. The jurisdiction expressly conferred does not include a power to order the payment of costs. That power is vested in the Tribunal by virtue of the fact that the application is deemed to be an appeal for the purposes of the Planning Appeal Act and the latter Act not only confers that power, but provides a mode of appeal limited to questions of law. It also confers a right of appeal in respect of "any decision" of the Tribunal which, on its face, would embrace a wider right of appeal than that conferred by the Environmental Act, s49, which is confined to "an order … made in the exercise of the jurisdiction conferred by section 48" and to "a decision … not to make an order under that section".
In State of Tasmania v Latham [1999] TASSC 148, I was concerned with a similar dichotomy in respect of the appeal given by the Planning Appeal Act and that given by the Land Use Planning and Approvals Act 1993 ("the Land Use Act"), s65. That appeal was confined to an order made in the exercise of the jurisdiction conferred by s64, or a decision not to make such an order. The Land Use Act, s64, gave express jurisdiction in respect of orders the equivalent of injunctions, orders to make good contraventions and orders for costs. It also provided that the Tribunal might adjourn proceedings in order to permit the respondent to make application for a permit which should have been made and contained a provision that for the purposes of the Planning Appeal Act, an application under s64 was deemed to be an appeal. The Tribunal had adjourned the proceedings without making any of the "orders" referred to in the section. The appellant accepted that this decision was not an order in respect of which there was a right of appeal under s65, but claimed that there was a residual right of appeal under the Planning Appeal Act, s25. I held that this was not so, and that s65 exhaustively dealt with all decisions or actions taken in exercise of the jurisdiction conferred by s64, but gave a right of appeal only in respect of "orders". The adjournment of the proceedings being a decision or action taken in the exercise of the jurisdiction under s64, no right of appeal was given by s65 and there was no residual right of appeal under the Planning Appeal Act.
Had the Environmental Act contained an express provision for costs, as did the Land Use Act, an appeal would lie under s49. The difference in this case is that there is no express grant in s48 of a power to order costs, but there is such an express grant in the Planning Appeal Act and an express right of appeal. In Latham's case, on the other hand, there was an express grant in the Land Use Act of a power to adjourn without making any of the orders authorised by that Act, but no similar express power in the Planning Appeal Act which might attract the right of appeal given by that Act, s25, and an appeal section in the Land Use Act which dealt exhaustively with the subject matter of appeals and excluded the power to adjourn proceedings from that subject matter.
In my view, the only right of appeal open to the appellants in respect of the order of the Tribunal in respect of costs is that given by the Planning Appeal Act and it follows that only errors of law may be relied upon.
The appellants lodged their civil enforcement proceedings in the Tribunal on 16 June 2000. The second of the orders sought, namely extension of the vent piping so as to avoid an explosion, was abandoned after tests conducted failed to show a significant presence of explosive gasses. The first of the orders sought, namely an appropriate remedy for the alleged nuisance, was subsequently particularised as including claims for compensation for loss of the value of the appellants' property and for personal suffering due to stress and anxiety allegedly arising from the odours. The loss of value claim was made on 15 June 2001 and maintained until abandoned on 10 July 2002 by which time the moving of the pump station vent had apparently removed the odour experienced at the appellants' residence. The claim for compensation for personal injury and anxiety which related to a period from 1976 to the relocation of the vent in 2002 was afoot until abandoned by the appellants on 1 October 2002, when the only remedy sought against the respondent council was an order for costs. The appellants conceded that the Tribunal had no jurisdiction to award compensation for personal suffering and that they should bear the costs of that aspect of the proceedings. No order to that effect was made by the Tribunal, the only order being that "each party bear their own costs of the application".
The Tribunal heard argument on the question of costs on 4 and 10 October 2002. Its written decision was delivered on 16 December 2002. The only other occasion when the Tribunal sat to hear the application was on 19 June 2001, when the parties consented to orders being made by it directing monitoring of the odours by nominated engineers at the expense of the respondent council.
In its reasons for decision, the Tribunal stated that the appellants claimed that in the six years prior to the lodging of the application, constant offensive smells had come from the sewerage pump station operated by the respondent and that this constituted an offence against the Environmental Act, s53, of wilfully and unlawfully causing an environmental nuisance. The respondent conceded that odours were emitted in the vicinity of the appellants' property and that the odours, at times, amounted to an environmental nuisance. However, the respondent maintained that the odours were not being generated within the pump station, but were generated elsewhere within the sewerage scheme and that it had not been possible at the date of that concession (5 June 2001) to determine where they were being generated or what was the cause. Once the main vent outlet was moved, the odours ceased to be a nuisance to the appellants. The Tribunal found that the odours emanated from the pumping station vent. A month before the application was lodged, the respondent wrote to the appellants denying that the odours did emanate from the pump station, but claimed that they were probably escaping from individual occupier's vent pipes.
A fortnight before the consent orders for monitoring were made by the Tribunal, the respondent made written admissions acknowledging the existence of offensive smells, accepting responsibility to take steps to implement, at its expense, an environmental improvement programme recommended by its engineers and accepting responsibility to undertake further monitoring.
By letter dated 20 May 2002, the respondent's solicitor advised that his client would relocate the vent further away from the appellants' house. By then it was apparent that such a course would probably remove the cause of the appellants' annoyance. The works were carried out promptly and that result ensued.
The Tribunal rejected the respondent's contention that it did not generate the odours. It concluded that the sewerage system was operated by the respondent and found that the existence and operation of the sewerage system was the cause of the odours experienced by the appellants. It also indicated that on the evidence before it (which seems to have been letters, reports and proofs of evidence filed with the Tribunal), it would find that the respondent's operation of the system constituted a nuisance amounting to a breach of the Environmental Act, s53(2). It then addressed an argument that even if a nuisance was found, no orders should have been made for any of the relief sought by the appellants. This argument was based on the Environmental Act, s23A, which relevantly provides:
"23A (1) A person must take such steps as are practicable or reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person.
(2) In determining whether a person has complied with the general environmental duty, regard must be had to all the circumstances of the conduct of the activity, including but not limited to –
(a) the nature of the harm or nuisance or potential harm or nuisance; and
(b) the sensitivity of the environment into which a pollutant is discharged, emitted or deposited; and
(c) the current state of technical knowledge for the activity; and
(d) the likelihood and degree of success in preventing or minimising the harm or nuisance of each of the measures that might be taken; and
(e) the financial implications of taking each of those measures.
(3) Failure to comply with subsection (1) does not itself constitute an offence or give rise to a civil right or remedy, but if a person has failed to comply with that subsection an environment protection notice may be issued to that person.
(4) Where a person, in relation to an environmentally relevant activity, takes all measures specified, in a code of practice made and approved in accordance with section 102(2)(d), as meeting the requirements for compliance with the general environmental duty, the person is taken to have complied with the general environmental duty in respect of the activity."
By reference to those criteria, the Tribunal stated that the making of an order that the respondent carry out the work of relocating the vent would have been appropriate.
The Tribunal then discussed a number of contentions regarding the appropriateness of making any substantive order had the matter proceeded to a full hearing. They were that the pumping station had been properly constructed in 1976 and had been well maintained by the respondent; that the respondent had taken steps at substantial expense which the Tribunal regarded as a reasonable response by the respondent; that experts had investigated the problem extensively, but could not agree on the appropriate remedy until odour modelling was carried out by the respondent's engineers and the vent relocated as a result, and that the Tribunal should (and did) find that the solution was not obvious and that the respondent was not ignoring the obvious; that the respondent was a small local council with limited resources and had expended significant sums of money on the sewerage system and that it should be given a reasonable time within which to act. On the other hand, the appellants contended that the respondent seized upon explanations which exculpated it. The Tribunal held that the respondent did do so, but was acting on information available at the time and was not acting unreasonably, nor were the appellants unreasonable in issuing proceedings.
The Tribunal then said:
"38In considering the question of what, if any, orders would have been made if substantive orders had been pursued, it should be noted that upon the application the order of significance which the Tribunal would have power to make, would have been compensation for loss of value of the applicants' property. The question of whether such an order would have been made is however, the Tribunal considers, too hypothetical to be answered. It depends upon the premise that by the conclusion of proceedings no expert would have reached the opinion that the problem could be resolved by simply relocating the vent part to its final position. It is impossible for the Tribunal to make any useful finding upon whether that hypothetical circumstance was likely to have occurred. The Tribunal is therefore not in a position to answer the question in either party's favour.
39What actually occurred must be taken into account, that is that in the practical sense of the cause of the problem was removed, and the applicant appropriately then abandoned the application for substantive orders.
40Having regard to all the above matters, the Tribunal considers that the result of the proceedings with respect to the order for compensation for loss of property value, is essentially neutral with respect to the issue of costs.
41It was also contended for the applicants that but for the applicants engaging the services of their expert Mr Wood, and but for the taking and pursuing of the proceedings before the Tribunal, it was unlikely that Council would have pursued the problem to the extent that it was ultimately resolved. Council's propensity to seize upon explanations which exculpated it, and its denials of liability, were relied upon for that conclusion. For Council that was denied; reliance was placed upon the above referred to extent of Council's actions and expenditure in pursuing the problem. The evidence is not sufficient to enable the Tribunal to make a finding upon this issue in favour of either party. Any finding would just be a guess. This contention for the applicants is therefore also essentially neutral with respect to costs."
The Tribunal, addressing the factors required by the Planning Appeal Act, s28(1), to be taken into account in making orders in respect of the costs of an appeal under that Act, observed that the appellants' claim for personal injuries fell within the category of being a frivolous or vexatious issue, but that, other than by way of inference from that matter, neither party had unreasonably or unnecessarily extended the proceedings or increased their costs. The Tribunal adverted to the means of the appellants and noted that $60,000 had been expended by them in obtaining expert opinions and in pursuing the appeal. Some $40,000 thereof related to the expert Mr Wood and the Tribunal noted that it was unable to resolve the respondent's contention that this fee was unreasonable and would not be sustained on taxation. It further stated that it was unable to make a finding that the appellants were obliged to take action to compel the respondent to act.
The Tribunal concluded:
46 In summary therefore, the result of the proceedings which actually occurred was that the applicants did not succeed in obtaining any order of a substantive nature. In a practical sense what they did may have been necessary to ensure that Council rectified the situation, but the Tribunal is unable to find that as a fact. Nor is the Tribunal able to determine in favour of the applicants that they would probably have succeeded in obtaining an order for substantive relief if the matter had proceeded to hearing on the merits. Nor is the Tribunal able to determine that the applicants' actions in obtaining expert evidence and pursuing the proceedings was a substantial cause of Council resolving the problem. The only issue relating to frivolous and vexatious matters is against the applicants. The issue of unreasonably prolonging the proceedings or increasing their costs is essentially neutral. While the applicant has expended considerable sums in the proceedings, there is no evidence that their means are such as to be persuasive for a costs order in their favour."
Turning now to the initial ground of appeal and to the three additional grounds of appeal set out above at par1, I note that the initial ground alleges an error of law, although it is not particularised. It appears to be an appeal to the "Wednesbury" principle (Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 – 230). The first two additional grounds assert failure to take into account relevant facts, or taking into account irrelevant facts, as a consequence of which the discretion miscarried. Such issues amount to complaints of errors of law (Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR 41). Insofar as these grounds challenge the proper exercise of the discretion on established matters of fact, they raise a question of law, but so far as ground 1 is concerned, it is wrong in its premise that as a matter of fact the respondent remedied the emission of odours "only after the proceedings were instituted". Certainly the remedy occurred after the proceedings were instituted, but the use of the word "only" carries the necessary implication that the remedial action was caused solely by the institution of the proceedings and would not have been carried out otherwise. The Tribunal made no such finding. In par46 of its reasons cited above, it specifically stated that it was unable to determine that the appellants' action in pursuing the proceedings was a substantial cause of the respondent resolving the problem. If the Tribunal had made such a finding and failed to take it into account, it would have erred in law, but in the circumstances, no such error of law could have occurred.
Additional ground 3 seems to address this deficiency in the last-mentioned ground. It seems to assert that as a matter of law, the Tribunal ought to have drawn the inference that the appellants' institution of the proceedings did cause the remedial action taken by the respondent. However, in my view, the Tribunal had ample evidence of the respondent's willingness to avoid the creation of a nuisance and to search for appropriate remedies to the appellants' problem which could have occasioned an inability on the Tribunal's part to determine if the remedial action was caused in this way. Taken separately or collectively, additional grounds 1 and 3 are not made out.
As to additional ground 2, counsel for the appellants argue that the Tribunal was under a misconception that for an order for costs in their favour to be made, there had to be a substantive order made on the application, or at least that it was necessary to show that had the matter proceeded to a hearing on the merits, a substantive order would have been made. Reliance was placed on some references to the question of whether or not a substantive order was likely to be made in pars36, 37 and 38 of the Tribunal's reasons. Those references, however, were made in response to certain contentions of the respondent and are no more than references. They do not indicate that the Tribunal was of the views alleged.
Where proceedings are terminated before a decision has been made on the merits, as in cases where their further prosecution becomes futile, an adjudicator with power to award costs is deprived of much of the material to which regard is normally had. The Rules of the High Court provide that where for any reason the further prosecution of a proceeding becomes unnecessary, save in determining by whom the costs should be paid, the Court or a Justice may make such order as is just (O71, r39). In Re The Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622, McHugh J dismissed an application for the costs proceedings against the Minister, the continuance of which were rendered unnecessary when the Minister granted the prosecutrix the protection visa she was seeking. In the course of his reasons, he made the following observations:
"In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd [1971] QWN 13, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission Unreported, Federal Court of Australia, 10 February 1989 where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (at 624 – 625)
McHugh J was dealing with a rule of the High Court and it should not be overlooked that the present power to order costs is one given and governed by the Planning Appeal Act. In Carnevale v Baker (1996) 90 LGERA 172 at 176, Underwood J said:
"The power to award costs is 'entirely the creation of statute' per the Full Court of Queensland in Wyatt v Albert Shire Council (1986 - 1987) 61 LGRA 116 at 119. As expounded in that decision, there is no prima facie rule that generally speaking, the costs should follow the event although that is a general principle that the common law courts have adopted in the exercise of the discretion to order costs. The Tribunal must not exercise the power conferred on it by the Resource Management and Planning Appeal Tribunal Act 1993, s28(1) in an arbitrary manner. It must consider the matters set out in the subsection in a reasoned way but is otherwise unfettered by principles that govern the proper exercise of the discretion at common law. See Wyatt (supra) at 119 - 120."
That was a case where, despite the appellant's successful result before it, the Tribunal's refusal to award him costs was upheld. The result of an appeal must be taken into account in determining a costs application under the Planning Appeal Act, but it is by no means decisive. If a result in favour of the appellants could have been predicted with confidence in the present case, it might have weighed more heavily in the equation, but as the Tribunal was unable to make such a prediction, the appellants lost such advantage as a finding to that effect might give them. They have not, however, demonstrated that the Tribunal erred in law in failing to determine that the appellants would probably have succeeded in obtaining an order for substantive relief if the matter had proceeded to a hearing on the merits. Ground 2 is not made out.
The initial ground was argued as an over-arching complaint of unreasonableness in the Wednesbury sense (Associated Picture Houses Ltd v Wednesbury Corporation (supra)). I do not regard this as made out. The Tribunal made an order that each party pay their own costs in circumstances where the appellants had raised a complaint of the danger of explosion of methane gas which was quite unsubstantiated and had sought compensation for personal injury and anxiety when the Tribunal had no jurisdiction to entertain such a claim. They conceded that the costs of the latter claim, that is their own costs and those of the respondent in respect thereof, ought to be paid by them. Had an order for costs in respect of the balance of the original claim been made, a not insignificant set off would have been appropriate. Given this fact, the reasonableness of the parties' conduct, the expenditure of the respondent in attempting to alleviate the problem, their respective means so far as they were known, and the inconclusive result, a decision that each party bear their own costs cannot be said to be so unreasonable that no reasonable authority could ever have come to it and thus amount to an error of law.
In my opinion the appeal should be dismissed.
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