Noun v Sutherland Shire Council (No 2)

[2012] NSWLEC 39

Land and Environment Court

New South Wales

Medium Neutral Citation:

Noun v Sutherland Shire Council (No 2) [2012] NSWLEC 39

Hearing dates:

12 March 2012

Decision date:

13 March 2012

Jurisdiction:

Class 1

Before:

Pain J

Decision:

1. The Council is to pay the Applicant's costs of the hearing on 7 April 2011 as agreed or assessed.

2. The Council is to pay the Applicant's costs of the Applicant's Notice of Motion filed 11 November 2011 as agreed or assessed.

Catchwords:

COSTS - whether fair and reasonable in merits appeal under Land and Environment Court Act 1979 s 97 to award costs incurred in relation to contention introduced late by local council not in accordance with Class 1 practice directions - exercise of discretion to award partial costs

Legislation Cited:

Civil Procedure Act 2005 s 56, s 98
Environmental Planning and Assessment Act 1979 s 97
Land and Environment Court Rules 2007 r 3.7(3)
Sutherland Shire Development Control Plan 2006 Ch 9
Sutherland Shire Local Environment Plan 2006 cl 18
Uniform Civil Procedure Rules 2005 Pt 1 r 1.5, Pt 42 r 42.1, Sch 1

Cases Cited:

Noun v Sutherland Shire Council [2011] NSWLEC 1243

Category:

Costs

Parties:

Debra Ann Noun (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Mr P Tomasetti SC (Applicant)
Mr R O'Gorman-Hughes (Respondent)
MCW Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

10391 of 2010

Judgment

1. Before me is a Notice of Motion filed 11 November 2011 by the Applicant, Mrs Noun, seeking costs in Class 1 proceedings being a s 97 appeal under the Environmental Planning and Assessment Act 1979 (the EPA Act). The Applicant's amended order 1 sought was filed in Court and states that:

The respondent pay the applicant's costs incurred by reason of the respondent's amendment of the draft Deferred Commencement Conditions seeking by condition 2 in Part 1 thereof the removal of the two mooring piles located below the Mean High Water mark within 6 months of the date of the issue of development consent.

1. In the Class 1 proceedings the Applicant sought the removal of a deferred commencement condition of consent requiring removal of a boatshed. In the course of proceedings Sutherland Shire Council (the Council) raised an additional issue that two unlawful fender (mooring) piles should also be removed. These had not been referred to previously by the Council as an issue. In Noun v Sutherland Shire Council [2011] NSWLEC 1243 the Commissioner upheld the appeal, imposed the deferred commencement condition of consent to remove the boatshed, but did not require the removal of the fender piles.

Evidence

1. A tender bundle of documents containing pertinent background material was filed. An affidavit of Mrs Noun dated 8 November 2011 identified steps in the proceedings and the steps which had to be taken in order to meet the late issue of the removal of fender piles raised by the Council. She employed a marine engineer who prepared a report and had to give evidence when the Council challenged this evidence by calling another engineer. This resulted in substantial costs beyond what she had anticipated being incurred. The Council's Statement of Facts and Contentions dated 17 June 2010 (filed 18 June 2010) is annexed. This does not refer to any issue concerning the fender piles.

1. An affidavit of Janelle Maree Amy, solicitor, dated 24 February 2012 also identified steps taken in the proceedings and annexed documents such as the two joint planning reports prepared by the parties' respective planners.

1. A chronology of relevant events was provided by the Council. After additional dates were added this was largely agreed.

Date	Event
25 May 2010	Applicant's Statement of Facts and Contentions prepared
17 June 2010	Council's Statement of Facts and Contentions prepared
11 Aug 2010	Joint town planners' report is signed; Respondent's planner states removal of the fender piles should be required as a deferred commencement condition as these are unlawful under cl 18 of the Sutherland Shire Local Environment Plan 2006
13 Aug 2010	Respondent serves without prejudice conditions of consent. Deferred commencement condition 2 requires removal of the fender piles
24 Aug 2010	First day of hearing. Council seeks and is granted leave to rely on second deferred commencement condition requiring removal of fender piles
12 Nov 2010	Respondent files supplementary report of its planner; refers to absence of mooring piles on neighbouring watercraft facilities
18 Nov 2010	Short hearing. Matter adjourned to 11 and 12 January 2011
8 Dec 2010	Council's solicitor's letter sent advising that it presses the second deferred commencement condition
23 Dec 2010	Applicant serves engineer's report (there were no directions for this evidence)
4 Jan 2011	Second joint planners' report (prepared as a result of a direction of the Court that the planners address the additional matters raised in Debbie Pinfold's supplementary town planning report); Respondent's planner states that the "retention of unauthorised piles is therefore not justified"
6 Jan 2010	Respondent serves engineer's report in reply to Applicant's engineer's report
11 Jan 2011	Third day of hearing
12 Jan 2011	Fourth day of hearing
7 April 2011	Fifth day of hearing to hear evidence of marine engineers
17 Aug 2011	Appeal upheld

1. The matter was heard intermittently over five days, on 24 August 2010 and a short hearing on 18 November 2010 when the matter was set down on 11 and12 January 2011. A further hearing day was also necessary on 7 April 2011 to hear the evidence of the parties' marine engineers. Mrs Noun estimated in her affidavit that a further two days were needed for dealing with the evidence and submissions on the pile issue.

Applicant's submissions

1. The Applicant relies on r 3.7(3)(d) of the Land and Environment Court Rules 2007 (the Court Rules) that the Council acted unreasonably in the conduct of the proceedings. All the costs incurred of meeting the issue of the fender piles raised late should be ordered to be paid to the Applicant by the Council.

1. The Council's Statement of Facts and Contentions dated 17 June 2010 makes no mention of the fender piles. The issue was inappropriately raised by the Council's town planner in the joint conference held with the Applicant's planner on 11 August 2011. This fell outside the issues in contention and was therefore irrelevant. If the Council's planner considered an additional issue arose she should have identified this to the Council's solicitor so that a Notice of Motion could be filed seeking leave to amend the Statement of Facts and Contentions as the Class 1 Practice Directions par 31 requires. This was not done. Instead the Council filed draft deferred commencement conditions of consent which added a deferred commencement condition requiring removal of the fender piles. Leave was sought at the hearing to rely on the new issue and granted. By letter dated 8 December 2010 the Council's solicitor confirmed that the issue was to be pressed. Only after that letter was received did the Applicant have confirmed that the Council relied on the new issue and obtained an expert engineer's opinion on the matters identified in the Council's development control plan. That engineer's report was served on 23 December 2010, the earliest opportunity to do so in the circumstances. The engineering report was necessary given the Sutherland Shire Development Control Plan 2006 provides at Ch 9 par 6.b.2.6 that " a report from a civil engineer demonstrating their need, design and location. Stabilisation and fender piles must not be used for permanent mooring" yet the Council objected to the service of the report.

1. In the context of an appeal against a deferred commencement condition of consent by the Applicant where the issues were first defined by the Applicant and the DA stated the cost of work was some $49,000, the late introduction of a completely new and until then unknown issue to Mrs Noun was so unreasonable all her costs of meeting that issue should be met. A number of provisions in the Class 1 Practice Direction were not complied with particularly par 8, 18, 19 and 31. There was a failure to identify the fender piles issue at the first call-over when the parties are required to identify their issues to the Court and in the Statement of Facts and Contentions filed by the Council on 18 June 2010. The identification by the Council's planner of the fender piles issue at the joint conference was inappropriate as she raised an irrelevant issue. Further, the Council had no engineering advice before it (as suggested by cl 18(4) of the Sutherland Shire Local Environment Plan 2006 (the SLEP)) at the time it decided to raise the issue. This would have enabled the Council to work out that this was not an issue it should press given cl 18(4) of the SLEP. These actions combine to show unreasonable behaviour justifying a costs order in the Applicant's favour. The conduct of the proceedings was severely disrupted and did not comply with the requirement for the just cheap and quick conduct of proceedings required by s 56 of the Civil Procedure Act 2005 (the CP Act).

Council's submissions

1. The Applicant is seeking all the costs of meeting a merits issue which was properly raised in these s 97 proceedings. The Council can raise new issues in s 97 appeals and not suffer a costs penalty. The Council had to raise the issue as it concerned the application of cl 18 of the SLEP which was a mandatory consideration. The view of the Council's planner was that the fender piles were unlawful, and required to be identified to the Court as a relevant matter given that cl 18 of the SLEP is mandatory. The first opportunity to do so arose in the first joint planners' report. The Applicant is not seeking just the costs thrown away, if any. The Applicant was on notice that the removal of fender piles was an issue from mid August 2010 when the joint planners' report was prepared. There was delay in raising the issue but it was known to the Applicant before the hearing. If raised at the time the Statement of Facts and Contentions was prepared in June 2010 the issue would have been included as a matter of course.

1. The Applicant served the engineer's report of Mr Henstock on 23 December 2010 without leave hence the Council's objection to it given that the hearing was then set down for 11 and 12 January 2011. It was very difficult to meet that evidence in time as the Council obtained another engineer's report as it was entitled to do. That report and the Council's planner supported the Council's view of the application of cl 18 of SLEP in relation to the piles, suggesting that the Council's position was reasonable. That resulted in a further hearing day being necessary on 7 April 2011. The Council's actions were reasonable in the circumstances.

Consideration

1. Section 98 of the CP Act states that costs are awarded at a court's discretion, subject to the rules of a court. Part 42 r 42.1 of the Uniform Civil Procedure Rules 2005 does not apply to Class 1 proceedings (Pt 1 r 1.5, Sch 1). Rule 3.7 of the Court Rules provides for rules on costs in Class 1 proceedings. The Court has discretion to award costs under r 3.7. The presumptive rule is that each party pays its own costs unless the Court considers it is fair and reasonable not to. The Applicant relies on r 3.7(3)(d) that the Council acted unreasonably in the conduct of the proceedings. The Applicant submits the categories of unreasonable behaviour are not closed and must be assessed in each case. This was a relatively modest and confined appeal on a single condition of development consent for a relatively modest development. There can be no dispute that the Council was entitled in the s 97 appeal to raise a new, relevant issue as this was, given cl 18 of the SLEP. The question therefore is whether the manner in which this was done in breach of the Practice Directions for Class 1 proceedings was so unreasonable that all or part of the costs sought by the Applicant ought be paid by the Council.

1. While the parties referred to a number of costs cases in Class 1 proceedings, ultimately the exercise of discretion must depend on the facts of the particular case and I did not find these cases of much assistance and so have not referred to them.

1. I agree with the Council's submissions that the issue was a matter appropriate to be raised in this s 97 appeal and that generally the Applicant would have had to incur costs in meeting it. The Applicant should not receive all its costs of meeting this issue. Where costs can be identified as having been thrown away, meaning wasted, or were unreasonably incurred, a partial award of costs may be warranted. There is no doubt the Council did not comply with the Class 1 Practice Direction as is clear from the application for leave to rely on the fender piles issue made at the first day of hearing on 24 August 2010. The Applicant's submissions (at par 9 above) identify four other breaches of the Class 1 Practice Direction, an unsatisfactory position from the Applicant and the Court's perspective.

1. It was further agreed at the bar table that Mr Robertson SC for the Council indicated on 24 August 2010 that he would get instructions on whether the fender piles issue was to be pressed. The Council provided that advice in a letter dated 8 December 2010, a lengthy period after 24 August 2010. Up to 8 December 2010 the Applicant was entitled to assume the issue was not to be pressed and not incur costs in responding. The late service of the Applicant's marine engineer's report on 23 December 2010 was a result of that delay by the Council in notifying the Applicant the issue would be pressed. The Council was not unreasonable in engaging an engineer to respond to the Applicant's expert. That engineer supported the Council's position and it was necessary to hear evidence from the experts on this issue.

1. The failure to comply with the Class 1 Practice Direction resulted in uncertainty about the scope of the Council's case as there was late notice of the issue by the Council with leave granted only at the hearing to rely on it in the Council's case. This together with the delay from 24 August 2010 to 8 December 2010 in confirming the issue was pressed contributed to the delayed provision of the engineers' reports and hence the matter not finishing on 11 and 12 January 2011. I consider the hearing on 7 April 2011 was an extra hearing day incurred as a result and the costs of that day were additional costs the Applicant should not have incurred. It is fair and reasonable that the Council should pay those costs.

1. As the Applicant has been partly successful in this costs application I consider her costs of her Notice of Motion should also be paid.

Orders

1. The Court makes the following orders:

1.   The Council is to pay the Applicant's costs of the hearing on 7 April 2011 as agreed or assessed.

2.   The Council is to pay the Applicant's costs of the Applicant's Notice of Motion filed 11 November 2011 as agreed or assessed.

Decision last updated: 14 March 2012