Pearse v Sharpe (No 2)

[2008] NSWLEC 81

Land and Environment Court

of New South Wales

CITATION:

Pearse v Sharpe & Anor (No 2) [2008] NSWLEC 81

PARTIES:

APPLICANTS
Mark Thomas Pearse and Cheryl Ann Pearse

FIRST RESPONDENTS
Ranald William Sharpe and Leigh Ann Sharpe

SECOND RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

40596 of 2007

CORAM:

Jagot J

KEY ISSUES:

Costs :- whether order for costs should be made in favour of the Council - whether the Council should not have taken any active role in the proceedings - Council's role reasonable in all the circumstances - applicant ordered to pay the Council's costs

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Pearse v Sharpe & Anor [2007] NSWLEC 710

DATES OF HEARING:

19 February 2008

EX TEMPORE JUDGMENT DATE:

19 February 2008

LEGAL REPRESENTATIVES:

APPLICANTS
Mr D Wilson
SOLICITORS
Hannaford Lawyers

FIRST RESPONDENTS
N/A
SOLICITORS
N/A

SECOND RESPONDENT
Mr J A Ayling SC
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

19 February 2008

40596 of 2007

MARK THOMAS PEARSE
CHERYL ANN PEARSE
Applicants

RANALD WILLIAM SHARPE
LEIGH ANN SHARPE
First Respondents

SUTHERLAND SHIRE COUNCIL
Second Respondent

JUDGMENT

Jagot J:

1 On 30 October 2007 I delivered my principal reasons in these proceedings (Pearse v Sharpe & Anor [2007] NSWLEC 710). I dismissed the applicants’ Class 4 application and made a general order for costs but stayed that costs order so that if the unsuccessful party (that is, the applicants) wished to be heard then there was an opportunity to do so.

2 The applicants reached an agreement with respect to the payment of the costs of the first respondents but dispute any liability under a costs order in favour of the second respondent, the Sutherland Shire Council.

3 The applicants’ propositions in support of that position are relatively straightforward. The applicants say that the case was a simple one that took a short amount of time. Although it involved essentially a dispute between two neighbours, the proceedings were commenced under s 123 of the Environmental Planning and Assessment Act 1979 and involved an issue of construction of the local environmental plan of general importance (which indeed is the Council’s explanation for its involvement in the proceedings in an active way). Further, the first respondents actively defended the proceedings on the same grounds as the Council. In these circumstances, the applicants say that there should be only one set of costs ordered (which have been ordered in favour of the first respondents). The Council, although a necessary party in the proceedings, should not have taken the active role it did given the nature of the issues and the fact that the first respondents were running precisely the same defence (being the argument I ultimately accepted).

4 For its part, the Council says that the general rule and underlying compensatory principles are not displaced in all of the circumstances. The litigation was not public interest litigation in the sense referred to in Oshlack v Richmond River Council (1998) 193 CLR 72. In any event, the observations by Gaudron and Gummow JJ relied upon by the applicant with respect to the Hardiman principle (at [46] citing R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36) was obiter, in its own terms only applied in appropriate cases and, in any event, has not been routinely applied in this Court.

5 It seems to me that there might have been more weight in the applicants’ position if the only issue in the proceedings had related to the alleged lack of finality or uncertainty of the development consent that had been granted. However, a substantial part of the proceedings related to an allegation about the way in which the Council’s local environmental plan operated. It seems to me that this issue was one of general importance to the Council’s administration of planning in its local government area. This is not to say, however, that I accept that these proceedings were brought in the public interest in the sense referred to in the Oshlack litigation. The case was essentially a dispute between two neighbours, which happened to raise an issue about the operation of the local environmental plan.

6 I also do not accept that it is a fair or reasonable characterisation of the proceedings to say that the Council made no contribution. Indeed, the essence of the applicants’ argument was not clearly disclosed in the points of claim and did not really become apparent until the oral submissions made by counsel then appearing for the applicants. Those arguments were essentially dealt with on the day in debate between the bench and the parties about the operation of the local environmental plan.

7 In all of the circumstances, the Council acted reasonably in taking the role that it did in these proceedings and did make a contribution to the resolution of the proceedings. There are no circumstances to which the applicants have referred in their oral or written submissions displacing the usual principle that the successful respondent, being the Council, should also have an order for costs in its favour.

8 The applicants are to pay the second respondent’s costs as agreed or assessed (including the costs of the hearing on 19 February 2008).

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