Moore v Corowa Shire Council (No.2) - [2009] NSWLEC 113

Land and Environment Court

of New South Wales

CITATION: Moore v Corowa Shire Council (No.2) [2009] NSWLEC 113

PARTIES:
APPLICANT
Mark Haydn Moore
RESPONDENT
Corowa Shire Council

FILE NUMBER(S): 40741 of 2007

CORAM: Sheahan J

KEY ISSUES: COSTS :- class 4 proceedings, "successful" on one point, Calderbank principles, "public interest" litigation, "disentitling" conduct

LEGISLATION CITED: Protection of the Environment Operations Act 1997
Land and Environment Court Rules 2007
Uniform Civil Procedure Rules

CASES CITED: F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No.5) [2008] NSWLEC 235
Calderbank v Calderbank [1975] 3 All ER 333
Harvey v Minister Administering the Water Act 2000 (No.2) [2008] NSWLEC 213
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265
Monaghan v Holroyd City Council; Holroyd City Council v Monaghan [2009] NSWLEC 112
Moore v Corowa Shire Council [2009] NSWLEC 59
Oshlack v Richmond River Council (1998) 193 CLR 72
Williams v Barrick Australia Limited [2003] NSWLEC 218; (2003) 128 LGERA 80

DATES OF HEARING: 6 July 2009

DATE OF JUDGMENT:
8 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Baird
SOLICITORS
David Geddes
RESPONDENT
Mr M J Astill, Solicitor of
Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

8 July 2009

40741 of 2007 Moore v Corowa Shire Council (No.2)
JUDGMENT

1 His Honour: Council seeks the “usual order” that the unsuccessful applicant in these class 4 proceedings should pay its costs. The applicant argues that there should, in all the circumstances of the case, be no order as to costs.

2 I delivered my judgment on the substantive proceedings on 30 April 2009 – see [2009] NSWLEC 59.

3 Mr Moore had sought a series of declarations and orders in respect of the operation by Council of its sewerage treatment plant at Mulwala, and Council’s use for discharge purposes of an open drain/channel across land owned by Mr Moore. Pollution of waters and the emission of odours, contrary to s 120 and s 129 respectively of the Protection of the Environment Operations Act 1997, were the essential complaints.

4 By the time of the hearing an entirely new plant was being commissioned on the site of the old plant, and Council had imposed a 400m buffer zone around it, effectively preventing any profitable development of Mr Moore’s land.

5 Throughout the period of complaint the NSW Environment Protection Authority was tolerant of Council’s breaches of its pollution licence, acknowledging that the cause was more the total inadequacy, by then, of the plant, rather than any failures of the Council as its licensed operator, and that Council was proceeding as quickly as it could with the development of a new plant, with the benefit of a State Government subsidy.

6 Rebuilding on the site, rather than relocating the plant, and the imposition of the buffer, were to some extent “dictated” by the State Government. (See generally pars [1] -[5] and [66]-[75]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 113
Decision Date: 8 July 2009

CaseChat Overview and Summary

In Moore v Corowa Shire Council (No.2), the applicant, Mark Haydn Moore, sought declarations and orders regarding the operation of a sewerage treatment plant by the Corowa Shire Council, alleging pollution of waters and emission of odours in breach of the Protection of the Environment Operations Act 1997. The case was heard in the Land and Environment Court of New South Wales, presided over by Sheahan J. The central issue before the court was the determination of costs in class 4 proceedings, considering the principles set out in Calderbank v Calderbank, the nature of the litigation as "public interest" litigation, and any "disentitling" conduct by the Council.

Sheahan J addressed the Council's request for costs to follow the event, arguing that the applicant's lack of success in the litigation warranted such an order. The Council asserted its right to defend the case until the hearing and highlighted two Calderbank letters sent by its solicitors to the applicant's solicitors, offering to forgo costs if the proceedings were discontinued by a certain date. The applicant argued against an order for costs on several grounds, including the public interest nature of the litigation, specific findings made by the court, and the Council's "disentitling" conduct.

The court found that the proceedings were not of such a public interest nature as to warrant deviation from the usual costs order, noting that while there was public interest in the matter, it was driven by private litigation. The court also concluded that there was no disentitling conduct on the part of the Council, as it was entitled to defend the allegations of environmental breaches. Additionally, the court declined to make a partial order for costs based on the Council's concession regarding the s 120 point.

Ultimately, the court ordered the applicant to pay the respondent's costs of the proceedings on a party-party basis, as agreed or as assessed according to law. This decision underscores the importance of the usual order for costs in proceedings where the applicant has not succeeded, balanced against considerations of public interest and disentitling conduct.

Orders