Hopkins v Palerang Council

[2010] NSWLEC 51

Land and Environment Court

of New South Wales

CITATION:	Hopkins v Palerang Council [2010] NSWLEC 51
PARTIES:	APPLICANT: Wilma Lucille Kathryn Hopkins RESPONDENT: Palerang Council
FILE NUMBER(S):	40722 of 2009
CORAM:	Biscoe J
KEY ISSUES:	COSTS :- proceedings commenced in class 4 over which the Court had no jurisdiction - whether public interest exception to the costs follow the event rule applied.
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Rules 2007, r 4.2(1) Local Government Act, s 186(1) Roads Act 1993, s 177(1) Uniform Civil Procedure Rules 2005, r 42.1
CASES CITED:	Hopkins v Palerang Council [2010] NSWLEC 16
DATES OF HEARING:	8 March 2010
EX TEMPORE JUDGMENT DATE:	8 March 2010
LEGAL REPRESENTATIVES:	APPLICANT: Ms D Reid (barrister) SOLICITORS: Jack C Herrald RESPONDENT: Mr J Ayling SC SOLICITORS: Commins Hendriks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

8 March 2010

40722 of 2009

WILMA LUCILLE KATHRYN HOPKINS v PALERANG COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application for costs by the successful respondent in these proceedings which were brought in Class 4 of the Court’s jurisdiction: Hopkins v Palerang Council [2010] NSWLEC 16. The proceedings were brought with the object of preventing the respondent, Palerang Council, from compulsorily acquiring a portion of her land for the purpose of creating a new road to be known as Galvin’s Creek Road.

2 Initially, the applicant challenged the giving of a notice of intended acquisition of land by the council pursuant to the Land Acquisition (Just Terms Compensation) Act 1991. After the proceedings were commenced, the acquisition was effected by gazettal of a notice of acquisition.

3 The proceedings then became an application by way of judicial review that the council’s compulsory acquisition for the purpose of widening a public road was invalid because in fact it was acquired for the purpose of resale contrary to a statutory prohibition. I dismissed the application because, in my view, the Court did not have jurisdiction and, alternatively, if it did, then it had not been proved that the acquisition was for the purpose of resale.

4 In Class 4 proceedings, costs ordinarily follow the event unless the court decides otherwise: Uniform Civil Procedure Rules 2005 r 42.1. However, the applicant submits that there should be no order for costs because of the application of the public interest exception in r 4.2(1) of the Land and Environment Court Rules 2007, which provides:

“The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.”

5 The applicant submits that the proceedings were brought in the public interest because they raised “the question of whether or not a property owner should be required to sit back and allow a local authority...to acquire his/her land against his/her wishes when that acquisition is unnecessary and morally unjust.”

6 The applicant says that her case raised moral issues as follows:

(a) the applicant looked on some ten or more years ago while her neighbour planted trees on the Crown road reserve which separates their properties. Those trees are now very mature. The council used as one of its justifications for acquiring the applicant’s land that it would be costly to remove the trees;
(b) when the applicant saw her neighbour building a storage shed (which did not have council approval) on the Crown road reserve she warned the neighbour that the shed was encroaching on the reserve. The neighbour ignored the applicant and went ahead with the construction of the shed knowing that he was building without permission on Crown land. The council used as one of its justifications for acquiring the applicant’s land that the acquisition would regularise the alignment of that large storage shed located on the Crown road reserve;
(c) the applicant (and the prior owner of her land) have gratuitously allowed owners of neighbouring properties to use the track on her land for many years. This was always done in anticipation of the council one day developing the Crown road reserve. The applicant has had very limited use of her land during this time as any stock left on the land were in danger of being injured or killed by motor vehicles (as happened on more than one occasion);
(d) the council claimed that it wanted to straighten the course of the new road. The applicant says the council would have been able to meet its objectives by taking very little of the applicant’s land (some 25 acres) and taking a similar small portion of land from her neighbour (who knowingly created most of the problems in the first place and whose holding consists of approximately 800 acres).

7 I do not accept the applicant’s submissions even if the propositions she puts are factually accurate, which it is unnecessary to decide. The first reason is that if the Court has no jurisdiction over the matter, as I have held, then I do not think it can be said that the proceedings were in Class 4 of the Court’s jurisdiction and, therefore, r 4.2(1) does not apply.

8 Whether or not that is correct, a second reason is that even if the propositions put by the applicant were to be accepted, they do not, in my view, establish that the proceedings were brought “in the public interest” within the meaning of r 4.2(1) as that concept has evolved in the jurisprudence in this and higher courts, none of which were referred to by the applicant. Thirdly, if I am in error, I do not think that in any event this is a suitable case for the exercise of the discretion under the rule.

9 The applicant also raises a discretionary issue to the effect that on occasions early in the proceedings when the matter was listed before the Court, she put submissions based on s 186(1) of the Local Government Act 1993, and the council at that time did not inform either her or the Court that s 186(1) did not apply. I do not think that is sufficient to sway the exercise of the costs discretion in favour of the applicant, but in any event the council filed points of defence shortly thereafter in which attention was drawn to the terms of s 177(1) of the Roads Act 1993 on which it relied. From that time, it seems to me, the applicant could have been in no doubt as to council’s position.

10 Finally, the applicant submits that I should disallow the respondent’s costs of junior counsel. The respondent was represented by both senior counsel and junior counsel. As this submission was raised at the heel of the hunt, the council had some difficulty in responding. I am not satisfied that the submission should be accepted. It was suggested by the respondent that if such a submission has any substance, it may be a matter for the costs assessor. I pass no judgment on that given the limited argument.

11 For these reasons, the Court orders the applicant to pay the respondent’s costs of the proceedings.