Oshlack v Iron Gates Pty Limited

[1997] NSWLEC 40

Land and Environment Court

of New South Wales

CITATION:	A OSHLACK v. IRON GATES PTY LIMITED & ANOR No. 40152 of 1996 [1997] NSWLEC 40 (8 April 1997) [1997] NSWLEC 1
PARTIES:	A OSHLACK v. IRON GATES PTY LIMITED & ANOR
FILE NUMBER(S):	40152 of 1996
CORAM:	Lloyd J
KEY ISSUES:	:-
LEGISLATION CITED:	Land &; Environment Court Act 1979, s 69 National Parks &; Wildlife Act 1974.
CASES CITED:	Donald Campbell &; Co Limited v Pollak (1927) AC 732, ; Berbette Pty Limitedv Hansa (1976) VR 385, Wyatt v Albert Shire Council (1986) 61 LGRA116; Lagiullo v Haden Engineering Pty Limited (1978) 1 NSWLR 306 at 308; Jamal v Secretary, Department of Health (1988) 14 NSWLR 52, at 271
DATES OF HEARING:	8 April 1997
DATE OF JUDGMENT:	04/10/1997
LEGAL REPRESENTATIVES:	L A Ogle (Solr) First Respondent P R Rigg (Solr) Second Respondent S Winters

JUDGMENT:

HIS HONOUR: This is an application for costs by the successful applicant following the judgment of Stein J delivered on 6 March 1997.

The judgment of Stein J identifies three key issues:

(1) Whether the development consent for a road, which his Honour

found to be valid in Wilson v Iron Gates Pty Limited &; Anor (40172/96, unreported, 2 December 1996), had lapsed pursuant to s 99 of the Environmental Planning &; Assessment Act 1979;

(2) Whether there had been breaches of the development consent for

subdivision and of conditions of that consent; and

(3) Whether works undertaken by the first respondent were in breach

of s 118D of the National Parks &; Wildlife Act 1974.

Stein J found:

(1) That the development consent for the road had lapsed but in the exercise of the Court's discretion he declined to make a

declaration to that effect;

(2) That there had been substantial breaches of the development consent and of conditions of that consent; and

(3) That the first respondent had breached s 118D of the National Parks and Wildlife Act. His Honour then made declarations and orders consequent upon those findings.

Mr P Rigg, who appeared for the first respondent, submitted that since the applicant was unsuccessful on the first issue then no order for costs should be made in relation to that issue. That issue was, he submitted, a discrete issue which concerned a separate development consent to the consent for subdivision.

Ms S Winters, who appeared for the second respondent, submitted that since the applicant was unsuccessful on the first issue then there should be an order that the applicant pay the costs in relation to that issue. She also submitted that, in relation to those issues on which the applicant was successful, there should be no order for costs against the second respondent since all the declarations and orders made by his Honour were directed to the first respondent.

Although there is a complete discretion as to costs (s 69, Land and Environment Court Act 1979 ) the discretion may not be exercised in an arbitrary manner but must be exercised judicially (Donald Campbell &; Co Limited v Pollak (1927) AC 732, Berbette Pty Limited v Hansa (1976) VR 385, Wyatt v Albert Shire Council (1986) 61 LGRA 116). That is to say, the discretion must be exercised in accordance with settled practice or established principles. It is a settled practice of the Courts that in the absence of special circumstances a successful litigant should receive his costs. One recognised category of special circumstances is that a party is generally entitled to the cost of an issue on which he succeeds (Lagiullo v Haden Engineering Pty Limited (1978) 1 NSWLR 306 at 308). In that event the costs of the issue on which a party is successful should be set off against the general costs of the proceedings (Jamal v Secretary, Department of Health (1988) 14 NSWLR

252, at 271). It could not be said that the respondents were wholly successful on the first issue. His Honour found that the development consent for the road had lapsed, contrary to the contentions of the respondents, although he exercised his discretion in declining to make the declaration because, it seems, there had been no resultant harm to the environment. I am thus not inclined to make the order sought by Ms Winters that the applicant pay the costs of this issue. The appropriate course is that suggested by Mr Rigg: there should be no order for costs in relation to this issue.

As I have noted, the applicant was wholly successful on the remaining issues. The only question is whether the second respondent, as well as the first respondent, should bear an order for costs relating to those issues. The second respondent did not, as it could have done, enter a submitting appearance. It took an active part in the proceedings, opposing the relief sought by calling evidence and making submissions. There was thus a full participation by the second respondent in the hearing. Although the declarations and orders were all made against the first respondent, the second respondent actively opposed the making of those declarations and orders. Accordingly, there is nothing to displace the ordinary practice which requires that the second respondent, as well as the first respondent, should bear an order for costs.

The order I make is:

(1) Order that the respondents pay the applicant's costs, other than

those costs relating to the first declaration sought by the

applicant.

__________

I certify that this and the 3 preceding pages are a true copy of

the reasons for judgment herein of The Honourable Mr Justice Lloyd.

Associate