Radray Constructions Pty Limited v Hornsby Shire Council

[2007] NSWLEC 132

Land and Environment Court

of New South Wales

CITATION:	Radray Constructions Pty Limited v Hornsby Shire Council [2007] NSWLEC 132
PARTIES:	APPLICANT Radray Constructions Pty Limited RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	11650 of 2004
CORAM:	Pain J
KEY ISSUES:	Costs :- whether fair and reasonable to make costs order against unsuccessful Applicant in Class 1 appeal
LEGISLATION CITED:	Land and Environment Court Rules 1996 Pt 16 rule 4(2)
CASES CITED:	Aldi Food Pty Limited v Holroyd City Council [2005] NSWLEC 338; Grant v Kiama Municipal Council [2006] NSWLEC 70; Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727; Radray Constructions v Hornsby Shire Council [2007] NSWLEC 34; Statewide Developments Pty Limited v Minister for Infrastructure and Planning (2005) 42 LGERA 154
DATES OF HEARING:	9 March 2007
EX TEMPORE JUDGMENT DATE:	9 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr P Rigg (solicitor) SOLICITORS Deacons RESPONDENT Mr R Graham (solicitor) and Ms C Bracks (solicitor) SOLICITORS Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

9 March 2007

11650 of 2004 Radray Constructions Pty Limited v Hornsby Shire Council

EX TEMPORE JUDGMENT

1 Her Honour: In this Notice of Motion the Council is seeking its legal costs of the three day hearing and preparation for the hearing of this Class 1 appeal heard before Senior Commissioner Roseth. In his judgment Radray Constructions v Hornsby Shire Council [2007] NSWLEC 34 the Commissioner refused the appeal because the proposed building work intruded unacceptably into the riparian zone.

2 Two affidavits were filed, one of Catherine Bracks, solicitor for the Respondent sworn 14 February 2007 and of Anthony Johnson, solicitor for the Applicant affirmed 1 March 2007, which set out the history of the matter. These disclosed that there were four amended statements of issues filed in the proceedings. The issue of building in the riparian zone was raised in all of these.

3 The relevant rule for costs in Class 1 proceedings is Pt 16 rule 4(2) of the Land and Environment Court Rules 1996 which states:

No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.

4 The Council argued that it was fair and reasonable that it get its costs because the basis for refusal by the Commissioner was an issue that was identified from the outset in the Statement of Issues and was not addressed by the Applicant despite numerous amendments to plans by the Applicant in the course of the proceedings. As this was a fundamental issue which resulted in the refusal of the appeal the Applicant had acted unreasonably in the proceedings and caused the Council to incur unnecessary costs because the matter had to go to hearing.

Finding

5 In Statewide Developments Pty Limited v Minister for Infrastructure and Planning (2005) 42 LGERA 154 Lloyd J held at [4] that:

The language of the rule maintains the general presumption that there will not ordinarily be any order for costs in proceedings to which the rule applies, unless in the particular case there is some circumstance that would make it fair and reasonable that there should be an order for costs. In other words, costs will not be ordered in proceedings to which the rule applies unless in the particular case it is fair and reasonable to depart from the underlying presumption.

6 This is confirmed in further cases referred to in Grant v Kiama Municipal Council [2006] NSWLEC 70 at [14] – [15], particularly Aldi Food Pty Limited v Holroyd City Council [2005] NSWLEC 338 at [5] and Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727 at [11].

7 An examination of the cases at [15] in Grant v Kiama reveals a variety of circumstances where the Court has considered that it would be fair and reasonable to make an order for costs. While not intended to be exhaustive it is worth noting that none of these circumstances are raised by the facts of this case.

8 I agree with the Applicant’s solicitor that the hearing as conducted was a usual Class 1 appeal in which the Applicant is entitled to test a council’s decision to refuse a development application. The usual approach to costs in this kind of matter is that each party pays its own costs. The fact that the Applicant was unsuccessful in the hearing before the Senior Commissioner about an issue raised from the outset does not on its own render its conduct unreasonable in my view. There was no legal impediment to the Court considering in the appeal the issues raised in relation to the riparian zone, particularly the Department of Natural Resources’ General Terms of Approval. The Applicant was entitled to challenge those General Terms of Approval in these Class 1 proceedings as identified by the Senior Commissioner in his judgment at [16]. It was ultimately unsuccessful in doing so.

9 The Council is unsuccessful on this motion, which I consider should be dismissed.

10 As the Council was unsuccessful on this motion and costs orders are compensatory the Applicant should have its costs of the motion paid by the Council.

Orders

11 The Court makes the following orders:

1. The Respondent's Notice of Motion dated 14 February 2007 is dismissed.

2. The Respondent is to pay the Applicant's costs of the hearing on costs on 9 March 2007.