Kempsey Shire Council v Thrush (No 2)

[2011] NSWLEC 130

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130
Hearing dates:	29 July 2011
Decision date:	29 July 2011
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court orders the First Defendant to pay the Council's costs of these proceedings. This order is not to be enforced for a period of 12 months from the date of this order.
Catchwords:	COSTS - whether to exercise discretion to award costs
Legislation Cited:	Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules Pt 42 r 42.1 State Environmental Planning Policy No 14 - Coastal Wetlands
Cases Cited:	Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178; (2010) 176 LGERA 97 Kempsey Shire Council v Thrush [2011] NSWLEC 93 Michales v Dimoski (No 2) [2007] NSWLEC 591
Category:	Costs
Parties:	Kempsey Shire Council (Applicant) Peter Michael Walter Thrush (First Defendant) Vincent Gullotto (Second Defendant)
Representation:	Mr G Underwood (Applicant) Mr P Thrush (First Defendant - in person) Mr V Gullotto (Second Defendant - in person) Cooney Harvey Doney (Applicant)
File Number(s):	40711 of 2010

EX TEMPORE Judgment

1. In Kempsey Shire Council v Thrush [2011] NSWLEC 93 ( Thrush No 1 ) I found that work had been carried out by, the First Defendant, Mr Thrush in July 2009 on a right of carriage way over land owned by, the Second Defendant, Mr Gullotto which was in a designated State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) wetland area without the development consent required under the Environmental Planning and Assessment Act 1979 (the EPA Act). For a number of reasons concerning the particular circumstances of Mr Thrush set out in the judgment at [49] - [54] I exercised my discretion not to make a declaration or the orders for relief sought by the Applicant, Kempsey Shire Council (the Council). The Council now seeks its legal costs, as does each of the Defendants. The Defendants have represented themselves before me but informed me that legal costs were incurred earlier in the proceedings when solicitors were then briefed. A chronology of events from early 2008 up to November 2010 is contained in par 5 of Thrush No 1 . These proceedings were commenced on 13 September 2010. A mediation of the parties was held on 21 October 2010 but the matter was not ultimately resolved.

Council's submissions

1. There is no dispute that Mr Thrush carried out work on the right of carriage way in the SEPP 14 wetland area. The Court found in Thrush No 1 at [42] and [43] that work was conducted in the SEPP 14 wetland area without the necessary development consent. The correspondence from early 2008 between the Council and Mr Thrush referred to in the affidavit of Ms Alberry, Council officer, dated 13 August 2010 and also attached to the submissions of Mr Thrush (22 January 2008, 17 March 2008, 2 April 2008, 23 April 2008, 23 May 2008, 4 June 2008) identifies that the Council told Mr Thrush that he needed development consent for the work he wished to carry out in the SEPP 14 wetland area. The Council was successful in its legal case arising from a blatant breach of the planning law by Mr Thrush who took action in 2009 despite knowing that the area was SEPP 14 wetland and that development consent was required. It is important that the Council receive its costs in these circumstances given its important role of upholding the planning laws. Failing to grant costs will be a disincentive to councils considering taking enforcement action.

Mr Thrush's submissions

1. Mr Thrush submitted that he had been mislead initially, meaning before 22 January 2008 when the correspondence before me commences, by the Council's advice as to whether development consent was needed for the work in the SEPP 14 wetland area. He seeks his costs from the Council as a result.

1. He lacks financial means to pay any costs awarded against him.

Second Defendant's submissions

1. Mr Gullotto claims his costs from the Council primarily, and Mr Thrush secondarily, as he considers he is the innocent party. He had no prior knowledge of Mr Thrush's intention to carry out illegal work on the land in mid 2009. The Council should not have commenced proceedings against him where he is simply the registered proprietor of the land, which has caused him to incur legal costs.

1. Mr Gullotto's position in relation to the provision of owner's consent to a development application (DA) for work on the right of carriage way as stated in his submissions is that he has always said he would provide consent to a DA which complied with rules and regulations. He accepts he was provided with a DA in November 2009 after the illegal work was carried out in July 2009 by Mr Thrush which he did not provide owner's consent for because he stated that he needed further clarification. He had expected that a DA would be provided for his consent following the mediation in 2010 but none was forthcoming.

1. Mr Gullotto stated that he did not receive a copy of the DA lodged with the Council by Mr Thrush in April 2008 and was not asked for his consent at that time. He stated from the bar table that he received a copy of that DA for the first time when he received Ms Alberry's affidavit in support of the Council's statement of claim attaching a copy. I note that this is contrary to the evidence of Mr Thrush given at the substantive hearing that a copy of the 2008 DA had been provided to Mr Gullotto and his consent sought unsuccessfully. In further submissions from the bar table during the costs hearing today Mr Thrush said it was his recollection that the DA was sent by his solicitors to Mr Gullotto's solicitors seeking owner's consent in 2008. There is no correspondence before the Court to support any of these statements. The different view of the facts on this aspect of the matter as between Mr Gullotto and Mr Thrush only became clear in the course of submissions today. I am unable to resolve that difference and further evidence would be necessary to do so. As it is in all parties' interests that this matter is finalised today I will consider the matter in light of this difference of opinion.

Consideration

1. Section 98 of the Civil Procedure Act 2005 applies to costs in these Class 4 proceedings. Under Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005 costs generally follow the event. In this case the Council was successful in obtaining a finding that a breach of the EPA Act occurred when Mr Thrush undertook the work he did in July 2009 in the SEPP 14 wetland area without development consent. I did not make a declaration in relation to the carrying out of illegal work or the consequential orders for relief sought because of the particularly difficult position Mr Thrush finds himself in given his lack of funds, that his sole access to his land is a right of carriage way across Mr Gullotto's property, and he has had difficulty in obtaining owner's consent to a DA in relation to work on that land from Mr Gullotto. Mr Thrush's evidence at the substantive hearing was that a DA was sent to Mr Gullotto in about April 2008 but no owner's consent was provided. In these circumstances the Council did not process the application. I took into account all these matters in the exercise of my discretion (in particular Thrush No 1 at [52]). I did not make orders for relief because of these subjective matters, which are unique to this matter, and my decision should not detract from the Council's important role in enforcing planning laws. It was successful in carrying out that role.

1. As demonstrated by the Council, Mr Thrush was aware that work in the SEPP 14 wetland area would require development consent, as can be seen in the 2008 correspondence referred to, but did not wait to obtain it before carrying out the work he did in July 2009.

1. Reinforcement of the enforcement role properly carried out by the Council justifies an award of costs in its favour in relation to Mr Thrush. I generally agree with the Council's submissions that its costs ought be paid by Mr Thrush.

1. Mr Thrush submits that he is of very limited means and cannot pay any costs order. See also Thrush No 1 at [17] and [54]. Numerous cases attest that that is not a relevant consideration, for example Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178; (2010) 176 LGERA 97 at [42] and Michales v Dimoski (No 2) [2007] NSWLEC 591 at [15]. I can specify a period during which enforcement of the order is postponed but consider I should otherwise make the order as part of the necessary legal framework supporting the enforcement of breaches of the EPA Act.

1. Mr Thrush made a faint submission that his costs ought be paid by the Council because it initially misled him about whether development consent was required for work in the SEPP 14 wetland area. That submission may have related to discussions with the Council before January 2008 when the correspondence referred to by Ms Alberry and Mr Thrush commences. I do not have evidence of those discussions in admissible form and cannot therefore consider this submission. The correspondence from early 2008 makes clear that development consent was needed in the Council's opinion for the work intended to be done in the SEPP 14 wetland area. Mr Thrush was notified of this. There is no misleading advice provided by the Council to Mr Gullotto concerning Mr Thrush having existing use rights in the letter sent to Mr Gullotto dated 25 June 2008 attached to Mr Thrush's submissions. There is no basis demonstrated for a costs order in favour of Mr Thrush.

1. Mr Gullotto seeks an order that his costs be paid primarily by the Council as he should never have been a party to these proceedings. The short legal answer to that is the submission of the Council that as the owner of the land where illegal work was carried out he was a necessary party to the proceedings. That submission is correct given the legal position of Mr Gullotto as owner of the land. Mr Gullotto also submitted that he was an innocent party and in one sense that is true given that he did not receive notice from Mr Thrush of the intention to do work in July 2009 (and even if he had what he could or should have done about it is not self-evident). He does have an important role in the overall circumstances of the matter however given that any development consent to do work by Mr Thrush on the right of carriage way including in the SEPP 14 wetland area requires owner's consent from Mr Gullotto.

1. The factual circumstances surrounding the seeking of owner's consent from Mr Gullotto for the 2008 DA are now disputed as noted above in par 7. Mr Gullotto says today that he never received this DA and so could not have then provided his consent. The first DA he received according to his statements from the bar table is the DA lodged in around November 2009 after the illegal work was done, being the second DA attached to the affidavit of Ms Alberry and also attached to Mr Gullotto's affidavit dated 4 April 2010. Accepting Mr Gullotto's statements concerning non-receipt of the 2008 DA for present purposes, Mr Gullotto was asked to provide owner's consent to the 2009 DA, lodged by Mr Thrush after the illegal work, and a further amended DA in 2010 (identified in the chronology at [5] of Thrush No 1 ) but did not.

1. Mr Gullotto continues to maintain that the giving of his consent is conditional on his being satisfied whether rules and regulations are complied with. That continues to be an unsatisfactory position in my view for the reasons stated in my previous judgment at [51] given that Mr Thrush has a legally enforceable right of carriage way over Mr Gullotto's property. Had Mr Gullotto provided owner's consent to the 2009 DA and a further DA lodged in 2010, an important legal hurdle to the Council processing one of these would have been removed. That is a relevant and material consideration in weighing up Mr Gullotto's claim for costs as against the Council and Mr Thrush. Exercising the broad discretion I have in determining costs I consider in all the circumstances of this case I should not make an order for costs in Mr Gullotto's favour.

Order

1. The Court orders the First Defendant to pay the Council's costs of these proceedings. This order is not to be enforced for a period of 12 months from the date of this order.

Decision last updated: 01 August 2011