Plumb v Penrith City Council - [2003] NSWLEC 161

Reported Decision: (2003) 126 LGERA 109

Land and Environment Court

of New South Wales

CITATION: Plumb v Penrith City Council and Anor [2003] NSWLEC 161

PARTIES:
APPLICANT
Plumb
RESPONDENT
Penrith City Council and Anor

FILE NUMBER(S): (4)0393 of 2002

CORAM: Pearlman J

KEY ISSUES: Costs :- special circumstances - public interest - no award of costs

LEGISLATION CITED: Land and Environment Court Act 1979 s 69(2)

CASES CITED: Cretazzo v Lombardi (1975) 13 SASR 4;
Hayden Theatres Pty Ltd v Penrith City Council and Ors (Bignold J, NSWLEC, 1 October 1998, unreported);
Oshlack v Richmond River Council (1998) 193 CLR 72;
Plumb v Penrith City Council and Anor [2002] NSWLEC 223;
R v Australian Broadcasting Tribunal: ex p Hardiman (1980) 144 CLR 13;
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

DATES OF HEARING: 27/06/2003

DATE OF JUDGMENT:
07/03/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr C D Norton (Barrister)
SOLICITORS
Woolf Associates
FIRST RESPONDENT
Mr C T Drury (Solicitor)
SOLICITORS
Phillips Fox
SECOND RESPONDENT
no appearance
SOLICITORS
N/A

JUDGMENT:

(4)0393 of 2002

Pearlman J
3 July 2003

NOEL PLUMB

Applicant

PENRITH CITY COUNCIL

First Respondent

THE TRUSTEES OF THE ROMAN CATHOLIC

CHURCH FOR THE DIOCESE OF PARRAMATTA

Second Respondent

Judgment

Introduction

1 By notice of motion, the first respondent, Penrith City Council, seeks an order that the applicant, Mr Noel Plumb, pay its costs of these proceedings. It claims that costs should follow the event; that is, as a successful party, it should be entitled to its costs.

2 The applicant resists an order for costs in favour of the council on grounds associated with the public interest nature of the proceedings and by reason of matters which it claims constitute disentitling conduct on the part of the council.

3 The second respondent, the Trustees of the Roman Catholic Church for the Diocese of Parramatta, took no part in the costs hearing.

4 The substantive proceedings involved a class 4 challenge by the applicant to the validity of a development consent granted by the council to the second respondent in respect of a high school to be erected on land at Llandilo (“the site”) being part of a larger area of land known as “the ADI site”. The applicant’s case was that the development application was made in respect of development likely to significantly affect Cumberland Plain Woodland (“CPW”), a threatened ecological community. He claimed that, as a consequence, it should have been accompanied by a species impact statement, it was required to be publicly exhibited, and the concurrence of the Director-General of National Parks and Wildlife was required.

5 The applicant succeeded in establishing that CPW was present on the site, but it failed to establish that the development application had been made in respect of development likely to significantly affect CPW. Accordingly, the class 4 application was dismissed, and costs were reserved (see Plumb v Penrith City Council and Anor [2002] NSWLEC 223 (“the primary judgment”)).

The relevant principles

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: [2003] NSWLEC 161
Decision Date: 07/03/2003

CaseChat Overview and Summary

In the case of Plumb v Penrith City Council, the Land and Environment Court of New South Wales considered an application by Penrith City Council for costs following a challenge to the validity of a development consent. The applicant, Mr Noel Plumb, had challenged the council's grant of development consent for a high school on land that was part of a larger area known as the ADI site, which included Cumberland Plain Woodland, a threatened ecological community. Mr Plumb argued that the development application should have been accompanied by a species impact statement and that the development consent should have been subject to the concurrence of the Director-General of National Parks and Wildlife.

The court considered the principles governing the award of costs, including the wide discretion conferred upon it under s 69(2) of the Land and Environment Court Act 1979. The court noted that while costs ordinarily follow the event, this principle is not absolute and that public interest factors could be relevant in determining whether to depart from this rule. The court found that the proceedings had a high level of public interest, particularly in the protection of a threatened ecological community and the proper application of the development assessment process. The applicant had no personal interest in the proceedings and had brought the challenge under the open standing provision in the Environmental Planning and Assessment Act 1979 to ensure compliance with the Act.

The court also found that the applicant was successful on the critical issue of whether Cumberland Plain Woodland occurred on the site, which was a significant factor in the proceedings. Additionally, the proceedings raised novel matters relating to the interpretation and application of the eight part test for significant impact, which would be of guidance to future decision-makers. The court rejected the council's argument that its active participation in the proceedings constituted disentitling conduct, noting that it was usual for a council to defend a challenge to a development consent it had granted.

Given these factors, the court concluded that there were special circumstances sufficient to justify a departure from the ordinary rule on costs. The court dismissed the council's application for costs and made no order as to costs.

Orders