Rossi v Living Choice Australia Ltd (No 6)
[2014] NSWLEC 116
•06 August 2014
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Rossi v Living Choice Australia Ltd (No 6) [2014] NSWLEC 116 Hearing dates: 21 May, 5 June 2014 Decision date: 06 August 2014 Jurisdiction: Class 4 Before: Pain J Decision: Final orders not made. See paragraph 101.
Catchwords: COSTS - exercise of discretion to award costs following determination of complex judicial review challenge to grant of development consent and civil enforcement proceedings - applicant successful on some grounds only - relief not granted in entirety - whether costs should be apportioned according to success on grounds of judicial review - whether JRPP should pay costs where filed early submitting appearance Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A, s 79A, s 79C
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Civil Procedure Act 2005 s 98
Uniform Civil Procedure Rules 2005 Pt 42 r 42.1, r 6.11Cases Cited: Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685
Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138; (2012) 191 LGERA 51
Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 76 LGRA 381; (1988) 81 ALR 166
Bankstown City Council v Bennett [2012] NSWLEC 38; (2012) 187 LGERA 446
Brown v Randwick City Council (No 2) [2012] NSWLEC 28
Calderbank v Calderbank [1975] 3 All ER 333
Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83
Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330
De Haas v Williams [2004] NSWLEC 15; (2004) 132 LGERA 195
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 6 IPR 261
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 30 ASCR 20
Greenwood v Warringah Council (No 2) [2013] NSWLEC 3; (2013) 196 LGERA 28
James v Surf Road Nominees (No 2) [2005] NSWCA 296
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
Latoudis v Casey [1990] HCA 69; (1990) 170 CLR 534
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162
North Sydney Council v Wouters [2012] NSWLEC 94
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46
Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136
Rossi v Living Choice Australia Ltd (No 5) [2013] NSWLEC 197
Trenwith v Sutherland Shire Council (No 3) [2006] NSWLEC 490
Seller v Jones [2014] NSWCA 19Texts Cited: Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005 to date (loose leaf at Service 87, July 2014) Category: Costs Parties: Anthony Rossi (Applicant)
Living Choice Australia Ltd (First Respondent)
The Hills Shire Council (Second Respondent)
Joint Regional Planning Panel - Sydney West Region (Third Respondent)Representation: Mr P Tomasetti SC with Ms V McWilliam (Applicant)
Ms H Irish (First Respondent)
Mr A Galasso SC with Mr J Lazarus (Second Respondent)
Ms K Richardson (Third Respondent)
DG Briggs and Associates (Applicant)
Pikes and Verekers Lawyers (First Respondent)
Maddocks Lawyers (Second Respondent)
Department of Planning and Infrastructure, Legal Services (Third Respondent)
File Number(s): 40018 of 2012
Judgment
Exercise of Court's discretion to award costs on completion of proceedings
The parties in these lengthy judicial review and civil enforcement proceedings seek various costs orders following their finalisation. The substantial nature of the proceedings can be seen in Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46 (Rossi (No 3)), which judgment followed a hearing over 11 days in 2012. The relevant background to the proceedings is identified extensively in that judgment. I note here that the proceedings are a judicial review challenge to two development consents, known as the stage 2 consent and the retaining walls consent.
Following delivery of Rossi (No 3), a further hearing on the issue of the exercise of the Court's discretion to make declarations and consequential orders was set down on 17-19 July 2013. Ultimately that hearing was not proceeded with. Mr Rossi filed a Notice of Motion (NOM) on 8 July 2013 returnable on 17 July. It was not ultimately determined on 17 July 2013. The Court delivered Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136 (Rossi (No 4)) in August 2013 in relation to the exercise of the Court's discretion to make final declarations and orders for relief. A brief judgment Rossi v Living Choice Australia Ltd (No 5) [2013] NSWLEC 197 (Rossi (No 5)) was handed down on 18 November 2013. A declaration of invalidity of the retaining walls consent and orders requiring ameliorative work on the Rossi boundary were made on 25 November 2013.
Evidence
An affidavit of Mr Winram solicitor for the Council dated 14 May 2104 was read. The exhibit to the affidavit was also tendered (exhibit 1A). It identifies steps taken in the substantive proceedings and in relation to the hearing set down for 17-19 July 2013 which did not proceed. Mr Winram undertook an evaluative exercise to gain an informed impression of how much time different parts of the proceedings took as set out in a table in par 24. The Council handed up parts of the transcript in the substantive proceedings which were marked MFI 1.
An affidavit of Ms McCullough solicitor for Living Choice dated 15 May 2014 adopts Mr Winram's affidavit in par 3-20 and provides further information about the steps taken by Living Choice in the proceedings, including in relation to the intended 17-19 July 2013 hearing which did not proceed. The exhibit to the affidavit was tendered (exhibit 2). Living Choice tendered a letter dated 11 July 2012 from its solicitor to Mr Rossi's solicitor making an offer to plant trees on Mr Rossi's land inter alia (exhibit 1).
Mr Rossi tendered a copy of an email sent by Mr Rossi's counsel to my chambers and a response from Living Choice's counsel in the afternoon on 17 July 2013 (exhibit A) relating to the future conduct of the matter. A bundle of documents was also tendered (exhibit B). Mr Rossi's counsel also prepared a summary of events during the hearing of 11 days which was handed up in Court and provides a useful reference.
Rossi (No 3)
Rossi (No 3) considered the substantive issues in the proceedings, namely ground 1 (failure in notification of stage 2 DA by the Council to Mr Rossi) at [111]-[136], ground 2 (failure in assessment by the Council and determination by JRPP of stage 2 DA) at [137]-[253], ground 3/4 (failure of notification of stage 2 consent of 12 October 2010; 6 June 2012) at [254]-[277], ground 5 (for breach of s 76A of the Environmental Planning and Assessment Act 1979 (the EPA Act) (civil enforcement against Living Choice) at [278]-[330], and ground 6 (invalidity of retaining walls consent) at [331]-351]. The most substantial issue was ground 2. All issues occupied court time and involved preparation by the parties. At [353] I summarised my legal conclusions as follows:
Mr Rossi has been successful in relation to other grounds of challenge and related issues in establishing as follows:
(a) A failure to consider a mandatory relevant consideration under s 79C(1)(b) and (c), and s 79C(1)(a) in relation to cl 32 of the Seniors SEPP, in relation to the retention of fill on the Rossi boundary in the Council's assessment and the JRPP's determination of the stage 2 DA in ground 2;
(b) A breach of s 76A of the EPA Act with the removal of tall pines on the western end of the Rossi boundary on Mr Rossi's land and Living Choice land without development consent (ground 5);
(c) A breach of s 76A of the EPA Act for work related to the keystone concrete block wall of digging a trench and backfilling on Rossi land without development consent (ground 5);
(d) The keystone concrete block wall on the Rossi boundary is not exempt development and was built without development consent (within ground 5);
(e) The retaining walls development consent is invalid (ground 6).
Matters relevant to the exercise of discretion were considered in Rossi (No 3) at [357]-[408]. No declaration or consequential orders were made in Rossi (No 3).
The relief sought in the Further Amended Summons (FAS) the subject of Rossi (No 3) was as follows:
(1) Declaration that the stage 2 consent is void and of no effect;
(2) Declaration that the notification of the stage 2 consent is void and of no effect;
(3) Declaration that the modification of the stage 2 consent is void and of no effect;
(4) Declaration that notification of the modification is void and of no effect;
(5) Declaration that notification dated 6 June 2012 is void and of no effect;
(6) Injunction restraining Living Choice from carrying out any works on the Living Choice land without development consent;
(7) (a) Order for demolition of the relevant buildings, including timber piles and posts, retaining walls and related infrastructure;
(7) (b) Order requiring Living Choice to remove the fill from the Living Choice land from the area adjacent to the common boundary for a distance of 50m; and
(7) (c) Demolish the key stone concrete block wall on the common boundary, remove the gravel and backfill placed on the Applicant's land by Living Choice and restore the Applicant's land including planting of advanced trees in the place of those removed.
The declarations and orders in 1 - 7(b) were not made.
In the reply filed by Mr Rossi additional relief sought was the declaration of invalidity of the retaining walls consent. This declaration was made following Rossi (No 5).
In relation to 7(c), detailed orders were made for demolition of the keystone concrete block wall on the common boundary, removal of gravel and backfill and restoration of Mr Rossi's land including planting of advanced trees to replace those removed by Living Choice in accordance with a landscaping plan specified in the orders.
Mr Rossi's submissions
Mr Rossi seeks his costs of the proceedings from Living Choice and the Council jointly and severally because he was the successful party and costs should follow the event. The Court found breaches of the EPA Act and granted declaratory and ameliorative relief to Mr Rossi. The Court retains a discretion to make another costs order where there is a discrete, severable or dominant issue on which Mr Rossi failed or there was some form of disentitling conduct. Neither circumstance applies here. The mere fact that a successful party does not succeed on all the issues is not sufficient by itself for a court to depart from the usual rule.
The Council caused the litigation through its failure to properly assess the stage 2 development application of Living Choice. It was found to be a proper party, contested every ground of challenge and was the consent authority for the retaining walls DA. De Haas v Williams [2004] NSWLEC 15; (2004) 132 LGERA 195 supports the position that where a council actively defends proceedings it will be liable for the costs of that defence. Living Choice also chose to defend the proceedings. Mr Rossi sought to uphold public law obligations and established a legal right to a determination of whether a declaration should be made.
No issue in the proceedings is discrete, dominant or severable. The approach of the Council and Living Choice impermissibly seeks to divide the matter into issues and attribute costs to the party that succeeded or lost on a particular issue. That approach is contrary to Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 76 LGRA 381; (1988) 81 ALR 166 at 169 per Burchett J, Brown v Randwick City Council (No 2) [2012] NSWLEC 28 at [10]-[11], Bankstown City Council v Bennett [2012] NSWLEC 38; (2012) 187 LGERA 446 at [110]-[111], and Greenwood v Warringah Council (No 2) [2013] NSWLEC 3; (2013) 196 LGERA 28.
Mr Rossi succeeded on the substantial issue of establishing a breach of the EPA Act in granting the approval for the stage 2 consent (Rossi (No 3) at [253]). The second issue of notification in which Mr Rossi was not successful was not clearly discrete, dominant or severable. In any event the issue did not lack merit. Mr Rossi was successful on the civil enforcement issue in relation to Living Choice. Mr Rossi was successful on the fourth issue of the invalidity of the retaining walls consent, at [351] -[353]. Mr Rossi succeeded in obtaining ameliorative relief, identified in Rossi (No 4).
The settlement offers relied on by Living Choice are irrelevant. They were not offers of compromise under the Uniform Civil Procedure Rules 2005 (UCPR), were not Calderbank offers (Calderbank v Calderbank [1975] 3 All ER 333) and did not equate to the relief that Mr Rossi finally obtained.
The hearing on 17-19 July 2013 was not aborted. The transcript shows that all parties adopted a course of consenting to the Court determining final orders on the basis of the evidence as it was in December 2012. The NOM filed by Mr Rossi on 8 July 2013 was not supported by evidence. The motion was not ultimately determined. The costs of 17 July are properly part of the overall costs of the proceedings. No separate costs of the motion were reserved on that occasion.
Following the judgment in Rossi (No 3) an iterative process occurred in which numerous versions of proposed orders were put forward and revised following the Court's comments. The end result cannot be described as one party winning or losing. The directions following judgment are properly part of the overall proceedings.
Both the Council and Living Choice should remain jointly and severally liable for any costs payable. Mr Rossi agreed with the JRPP that the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36 applies so that the JRPP should not be liable for costs.
Council's submissions
The issues in these proceedings and the result are as follows:
(i) Failure in notification of stage 2 DA by the Council, ground 1 (Further Amended Points of Claim (FAPOC) [10], [11]). This claim failed (Rossi (No 3) at [125]-[136]). A number of Council officers giving evidence were relevant to this issue alone.
(ii) Whether the Council's assessment function was amenable to judicial review (FAPOC [12], [14]). Mr Rossi's argument was accepted (Rossi (No 3) at [151]-[157]).
(iii) Alleged failure to consider s 79C(1)(b), (c) (FAPOC [24], [29]). The Court upheld Mr Rossi's argument in relation to the Council's assessment, and the JRPP's determination, of the consideration of the issues of retention of fill on the Rossi boundary, the visual impact of retention methods and overlooking impacts, but Mr Rossi failed in relation to the balance of the relevant matters pleaded such as placing of fill and depth of fill (Rossi (No 3) [212]-[233]).
(iv) Alleged failure to consider State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors SEPP) under s 79C(1)(a)(i) (FAPOC [23]). Of the numerous alleged breaches, none were established as against the Council. The only success of Mr Rossi was in relation to the cl 32 claim, and that was a claim directed to the JRPP alone. Mr Rossi failed on his cl 30, vegetation, stormwater and Baulkham Hills Resident Development Control Plan claims (Rossi (No 3) [234]-[251]).
(v) Manifest unreasonableness (FAPOC [30]). Claim failed (Rossi (No 3) [252]).
(vi) Alleged failure of 12 October 2010 notification of DA (FAPOC [13(b)], [17]-[21]). Claim failed (Rossi (No 3) [271]-[274]).
(vii) Alleged failure of 6 June 2012 notification of DA (FAPOC [42], [44]). Claim failed (Rossi (No 3) [275], [276]).
(viii) Breach of s 76A on Rossi and Living Choice land (FAPOC [45], [46]). Mr Rossi partially successful, but the issue did not concern the Council (Rossi (No 3) [278]-[330]).
(ix) Validity of retaining walls consent (Amended Reply [1]). Claim succeeded (Rossi (No 3) [346]-[351]).
(x) Declaration of invalidity of stage 2 consent (Amended Summons [1]). Claim failed (Rossi (No 4) [12]).
(xi) Claim for demolition order (Amended Summons [7(a)]). Claim failed (Rossi (No 3) [408]).
(xii) Claim for injunctive relief (Amended Summons [6]). Claim failed (Rossi (No 4)).
(xiii) Ameliorative orders (Amended Summons [7(c)]). The Court preferred Living Choice's proposal over Mr Rossi's (Rossi (No 5) [13]).
As a shield to an award of costs against it, the Council said it was not the decision-maker, that was the JRPP as the consent authority. Ground 2, failure to consider various matters including the SEPP issue, is a finding against the JRPP. Of necessity the defect in the Council's assessment of the stage 2 DA was transmitted to the JRPP. Secondly no declaration of invalidity was made in relation to the stage 2 consent so that Mr Rossi was unsuccessful. That issue occupied the bulk of the Court time and case preparation. Mr Rossi failed on all the major issues including all those that directly concerned the Council (grounds 1, 3 and 4) and these issues are discrete and severable.
The Council seeks orders that (sword):
(i) Mr Rossi pay 50 per cent of its costs. Mr Rossi did not succeed on two grounds of most relevance to the Council, the failure of notification of the stage 2 DA, ground 1 issue 1 for which a number of council officers were required. Mr Rossi also failed in relation to ground 3/issue 6 in relation to the second notice, or
(ii) If the Court resolves that Mr Rossi's costs ought be paid this should be apportioned as 75 per cent Living Choice, 15 per cent Council and 10 per cent JRPP.
The Council's position may be further summarised as follows: Mr Rossi should be deprived of a substantial proportion of his costs because:
(i) Mr Rossi did not achieve overall success in the proceedings, particularly in relation to the issues that concerned the Council;
(ii) it was legally unnecessary for allegations of breach of s 79C to be made against the Council, given that Mr Rossi made identical allegations against the JRPP;
(iii) of the abortive second hearing in July 2013; and/or
(iv) of his conduct of the proceedings generally, and in particular the 3 days it took for the case to be opened.
For these reasons, Mr Rossi should pay a proportion of the Council's costs.
Alternatively, the Council's share of Mr Rossi's costs should be reduced because:
(i) the only substantive issue in respect of which Mr Rossi enjoyed success against the Council (breach of s 79C) did not lead to the grant of any relief;
(ii) the "error" which led to the finding of breach of s 79C was due to the Council being misled by Living Choice;
(iii) even if the "error" could be attributed to the Council, it is equally the fault of the JRPP, which cannot immunise itself from costs liability by filing a submitting appearance; and/or
(iv) the majority of the case (especially evidence) related to the issue of discretion and appropriate ameliorative orders, an issue primarily between Mr Rossi and Living Choice.
As to the retaining walls consent:
(a) this issue only arose in Mr Rossi's Amended Reply and was not part of the primary relief sought in the FAS;
(b) the issue only arose in the context of a dispute concerning whether Living Choice had carried out works without development consent, an issue that did not concern the Council;
(c) the issue as to the validity of the retaining walls consent occupied very little of the Court's time or in preparation, relative to the other issues in the case, at most 5 per cent; and
(d) the declaration of invalidity did not lead to any substantive orders being made, because the relevant works were constructed prior to the grant of the consent on 26 June 2012, notice of which was issued on 2 July 2012.
It is clear that these proceedings are not the usual kind of judicial review proceedings. First of all, a large part of the case related to an action for enforcement of the EPA Act against Living Choice, which did not concern the Council. Secondly, a significant part of the judicial review case related to the exercise of discretion, rather than issues of validity. Thirdly, the Council was not the ultimate decision-maker in relation to the stage 2 consent, it was the JRPP. Fourthly, as submitted above, Mr Rossi failed to obtain the grant of relief in relation to any claim brought against the Council.
In relation to the exercise of discretion, Mr Rossi was substantially unsuccessful in obtaining the relief he sought, particularly in relation to the declaration of invalidity of the stage 2 consent, and the orders for demolition sought by him. The whole issue of discretion occupied the majority of the Court's time, and the bulk of the evidence. It was a discrete and severable issue, not only because the evidence relevant to it was discrete, but also because the issue was primarily one between Mr Rossi and Living Choice.
Although it may be accepted that the process of apportionment is a matter of impressionistic judgment, the Court has the benefit of Mr Winram's evidence concerning the likely time and costs expended in relation to each relevant issue. Only 20 per cent of the time and cost spent on the case related to issues in respect of which Mr Rossi could be said to have achieved some success against the Council, and that percentage needs to be further reduced because Mr Rossi also succeeded on those issues against Living Choice and the JRPP.
Council not a necessary party
The Council was not the ultimate decision-maker in relation to the grant of the stage 2 consent. It may, however, be accepted that the Council was a necessary party to the proceedings by virtue of the challenges made by Mr Rossi to that consent based on the alleged breach of s 79A (ground 1), and the alleged breaches concerning the 2010 and 2012 notifications of the consent (grounds 3 and 4).
The Council also accepted that the Court has determined the issue as to whether the Council's "assessment" is amenable to judicial review for alleged breaches of s 79C of the EPA Act. While Mr Rossi succeeded on that discrete legal issue (Rossi (No 3) at [151]-[157]), that does not mean that Mr Rossi should have brought a case directly against the Council, in circumstances where identical allegations were levelled against the actual decision-maker, the JRPP. It is inconceivable that Mr Rossi could have succeeded against the Council in relation to allegations of breach of s 79C, but failed against the JRPP. Indeed, in the extremely unlikely event of such a result, the Court could not as a matter of law have declared the stage 2 consent invalid, because whatever error might have been made by the Council was not material to the ultimate decision by the JRPP: see Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [66].
Disentitling conduct
The Court has a discretion not to award costs in favour of a successful party, and/or to order the costs of the other parties to be paid by the successful party, if there is disentitling conduct by it: North Sydney Council v Wouters [2012] NSWLEC 94 at [26], Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 at [50(a)]. Mr Rossi should pay the Council's costs of and associated with the aborted second hearing in July 2013 because:
(a) the question of final orders was not conclusively determined by the Court in Rossi (No 3): see at [409], [410];
(b) a three day hearing was allocated to deal with that issue, commencing on 17 July 2013;
(c) Mr Rossi filed a NOM on 8 July 2013, seeking a variation of the findings made by the Court concerning the two notifications of the stage 2 consent, in addition to a curiously framed order seeking in effect to reopen the question of discretion, and in particular the finding concerning demolition;
(d) in support of the NOM, Mr Rossi filed and served lengthy affidavits of Mrs Rossi (7 July 2013) and Mr Rossi (8 July 2013);
(e) the reopening application was vexatious and doomed to fail, because it sought to reopen matters that had already been fully dealt with by the Court on the basis of the evidence that was then before the Court;
(f) Mr Rossi's evidence was outside the scope of the orders for evidence made by the Court, and worse than that, was irrelevant and scandalous, and in any event was evidence that ought to have been adduced at the first hearing in 2012, and which would have caused the Council substantial prejudice had it been allowed in;
(g) Mr Rossi's NOM was debated at some length on 17 July 2013;
(h) on the afternoon of that day, Mr Rossi abandoned his "new evidence" application, and acceded to the Council's proposal that the Court determine the issue of final orders based on the evidence already before the Court, and the submissions previously made to it. This is recorded in Rossi (No 4) at [4]; and
(i) the costs of Mr Rossi's NOM have been reserved.
Apportionment of Mr Rossi's costs between the Council and Living Choice
In the event that the Court is minded to make a costs order in Mr Rossi's favour, then it is submitted that the responsibility for the bulk of those costs should rest with Living Choice, and not the Council.
First of all, as submitted above, the only substantive issue in respect of which Mr Rossi enjoyed success against the Council (breach of s 79C) did not lead to the grant of any relief. The substantive relief obtained by Mr Rossi (order 2) related only to breaches of s 76A by Living Choice. Thus, even if Mr Rossi is considered to have enjoyed some success in the proceedings, that success was primarily, if not exclusively, against Living Choice, and not the Council.
Secondly, the "error" which led to the finding of breach of s 79C was due to the Council being misled by Living Choice. This was a central theme of Mr Rossi's case as outlined in Rossi (No 3) at [71], [73], [85], [173], [174], [178], [179], [181], [214], [220] and [224]. Notably, Mr Rossi did not cross-examine Mr Buckham in relation to his assessment of the development application, but rather embraced Mr Buckham's written statements that the Council had been misled: see Rossi (No 3) at [71], [85], [173]-[174], [178]-[179] and [221]-[223].
Thirdly, the bulk of the time expended on the case related to the issue of discretion, which was primarily an issue between Mr Rossi and Living Choice. The Council's submissions made clear that it was addressing the question of relief only by way of assistance to the Court. The Council was given leave not to participate in the final hearing on relief.
The position of the JRPP
The JRPP was the actual decision-maker in relation to the stage 2 consent. The Court found that the JRPP made the same error in its assessment of the application, Rossi (No 3) at [129]. Furthermore, the only breach of s 79C(1)(a) found by the Court was in relation to cl 32 of the Seniors SEPP, which was a claim established against the JRPP alone, and not the Council: see Rossi (No 3) at [234], [245]-[246]. The JRPP, as consent authority, cannot immunise itself against costs liability by entering a submitting appearance, because the cause of the litigation is its error: Cutcliffe at [50(c)], Brown v Randwick City Council at [25]. Nothing in Seller v Jones [2014] NSWCA 19 detracts from that fundamental principle.
Living Choice's submissions
Living Choice submitted that the appropriate costs orders in the circumstances of the case are:
(a) Mr Rossi should pay Living Choice's costs of ground 1 (no notification of the DA for the stage 2 consent).
(b) Mr Rossi should pay Living Choice's costs of ground 2 (unlawful assessment and determination of the stage 2 consent by Council and the JRPP). This includes Living Choice's costs of Mr Rossi's "Modification ground" component of ground 2 (wholly disposed of in Rossi (No 3) at [354] and Rossi (No 4) at [8], [12]), and that Mr Rossi's "manifest unreasonableness" ground (Rossi (No 3) at [354] and Rossi (No 4) at [8], [12]).
(c) Mr Rossi should pay Living Choice's costs of grounds 3 and 4 (relating to Council's first and subsequent notices of determination in relation to the stage 2 consent).
(d) Living Choice pay Mr Rossi's costs of that part of ground 5 relating to the keystone concrete block wall, as assessed or agreed, but not Mr Rossi's costs for matters admitted in Living Choice's Points of Defence and/or matters the subject of Living Choice's offers to replant trees or remove and restore things (excavated trench, gravel and backfilling).
(e) The Council should pay those of Mr Rossi's costs in relation to ground 6 (regarding the retaining walls consent) which are allowed (if any), as agreed or assessed.
(f) Mr Rossi should pay Living Choice's costs of and in relation to the abortive fixture (17 July 2013) described in Rossi (No 4) at [3]-[4].
Ground 2 (judicial review challenge to stage 2 consent)
No orders should be made in Mr Rossi's favour in relation to ground 2 because no remedial orders or declarations in the FAS were made.
Mr Rossi contributed to his lack of success by his own disentitling conduct. Living Choice successfully opposed and persuaded the Court not to grant any relief in respect of ground 2. Its argument prevailed. Ground 2 of the proceedings was unsuccessful and unnecessary and Mr Rossi should not get any, far less 100 per cent, of his costs of ground 2. Mr Rossi should pay Living Choice's costs of ground 2 including in relation to manifest unreasonableness.
Given Mr Rossi's rejections of Living Choice's various offers and undertakings pertaining to ground 2, Mr Rossi did no better than those offers and undertakings on ground 2 (the remedial relief ultimately granted being Living Choice's proposed orders wholly directed to a few of Mr Rossi's s 76A / ground 5 claims). Further, the claim was unaccompanied by prayers for expedition or interlocutory relief, in respect of a large scale, physically commenced, seniors housing development continuously reliant upon the stage 2 consent for its completion.
As Mr Rossi failed outright on grounds 3 and 4 Living Choice should have those costs paid.
Mr Rossi's challenge in pars 32-35 of the FAPOC was wholly disposed of in Rossi (No 3) at [354] and Rossi (No 4) at [8], [12] (including the relief sought in prayer 3 of Mr Rossi's FAS filed 28 June 2012 regarding the modification, and prayer 4 regarding notification of that modification). This judicial review challenge was doomed to fail because its only basis was invalidity of the stage 2 consent. The challenge nevertheless consumed party and Court resources which could and should have been avoided. Mr Rossi should pay Living Choice's costs of the challenge/case in par 32-35 of the FAPOC.
If Living Choice's primary position is rejected it seeks orders that:
(a) Alternatively, Mr Rossi should pay Living Choice's costs of Mr Rossi's "manifest unreasonableness" component of ground 2, and the Council and JRPP should pay the balance of Mr Rossi's costs of ground 2 as assessed or agreed.
(b) Alternatively, the Council and JRPP should pay Mr Rossi's costs of ground 2 as assessed or agreed.
(c) Alternatively, each party should pay its own costs of ground 2.
Ground 6 - retaining walls consent
The Court found that the retaining walls consent was invalid (ground 6) at [351]. However, the Court found that it was not appropriate to make a s 25B order in relation to the retaining walls consent (Rossi (No 4) at [21]), and that an ameliorative order such as in prayer 7(c) in the FAS filed 28 June 2012 was only warranted in relation to other work undertaken without development consent (namely, Mr Rossi's s 76A / ground 5 claims): see Rossi (No 3) at [408], Rossi (No 4) at [26], and Rossi (No 5) at [13].
Ultimately even that part of prayer 7(c) seeking restoration of the Rossi land by the planting of advanced trees in the place of those removed was not granted. "The [changing] orders sought by Mr Rossi" by 5 November 2013 was noted (in Rossi (No 5) at [6]), before the Court made Living Choice's proposed orders including:
(a) Orders 2.2-2.3, to re-landscape its own land in lieu of Mr Rossi's,
(b) Order 2, to demolish only the keystone concrete block wall (not the subject of ground 6) and remove the gravel and backfill placed on the Rossi land (also not the subject of ground 6), and
(c) Order 2.1, to seed the Rossi land with grass seed (not the subject of ground 6).
Ground 6 being the Council's error, but there being nil effective relief granted (other than a "by consent" declaration of invalidity), the Council should pay such of Mr Rossi's costs of ground 6 which are allowed (if any), as agreed or assessed.
Ground 5 - Outcome of Mr Rossi's civil enforcement proceedings
In the Court's "executive summary" finding in Rossi (No 3) at [353(b)], the Court found "A breach of s 76A of the EPA Act with the removal of tall pines on the western end of the Rossi boundary on Mr Rossi's land and Living Choice land without development consent (ground 5)". This ground of challenge was on the following bases:
(a) that Living Choice had, on its own land, erected certain timber posts, footings and brickwork curtain walls otherwise than in accordance with the Development Consent (par 36-41 of Mr Rossi's FAPOC, part of what is called "Ground 5" in Rossi (No 3),
(b) that Living Choice had, on Mr Rossi's land, without his consent, removed two lines of small pines, erected a temporary fence, excavated a trench into which it had placed crushed aggregate and backfilled with gravel and soil, and erected a wall of variable height between 550mm and 700mm along the common boundary (par 45-46 of Mr Rossi's FAPOC - the balance of what is called "Ground 5" in Rossi (No 3)).
The relief sought in respect of ground 5 was wholly dealt with and disposed of in Rossi (No 3) at [408]).
In relation to the remainder, the Court found (at [309]), "In the absence of positive evidence that consent was given for tree removal I consider that Mr Rossi has established that the larger pines on the western end of the Rossi boundary were removed without the necessary development consent". However, Living Choice had already admitted the removal of pines which it had offered to replace: see Rossi (No 3) at [281]; Living Choice's Points of Defence at [45] and [50h].
Similarly, in the Court's "executive summary" finding in Rossi (No 3) at [353(c)], the Court found "A breach of s 76A of the EPA Act for work related to the keystone concrete block wall of digging a trench and backfilling on Rossi land without development consent (ground 5)" (emphasis added). See also Rossi (No 3) at [330]. However, Living Choice had admitted undertaking the excavation of the trench (only a small part of which extended onto the Rossi land) and backfilling on the Rossi land without development consent and without Mr Rossi's consent (Rossi (No 3) at [312]; Living Choice's Points of Defence at [45]) since 9 July 2012).
Accordingly, the Court's findings at [330] and [353(c)] were not the result of a contested dispute, and no party or Court resources should have been wasted on a temporary fence (the erection of which was also admitted): see Rossi (No 3) at [311]; Living Choice's Points of Defence at [45].
The keystone concrete block wall was ultimately found to have been "built without development consent (within ground 5)": see Rossi (No 3) at [328] and [353(d)].
In light of the above, Living Choice is prepared to pay Mr Rossi's costs of his civil enforcement proceedings relating to the keystone concrete block wall, as assessed or agreed, but not Mr Rossi's costs relating to the other two matters plainly admitted in Living Choice's Points of Defence since 9 July 2012 and/or the subject of offers to Mr Rossi to replant (trees) or remove and restore (the excavation of the trench, placing of crushed aggregate and backfilling). Living Choice ultimately proffered remedial orders to the Court (in the absence of Mr Rossi's acceptance/agreement, and after the abortive fixture of 17-19 July 2013 described in Rossi (No 4) at [3]-[4]). The remedial orders proposed by Living Choice were the orders made (Rossi (No 5) at [10], [13]).
Various matters
Mr Rossi should pay Living Choice's costs of and in relation to the abortive fixture described in Rossi (No 4) at [3]-[4]. Living Choice's costs of the aborted hearing on 17 July 2013 were significant. Evidence was filed and served relating to matters of landscaping, engineering, town planning and valuation. A NOM was filed by and later wholly abandoned by Mr Rossi resulting in wasted costs.
Living Choice had no effective notice of the proceedings as these were commenced on 11 January 2012 after a letter was sent on 3 January 2012 by Mr Rossi's solicitor to advise that proceedings were to commence. No undertaking to stop work from Living Choice was sought.
The JRPP is not immune from a costs order against it in relation to ground 2 just because it filed a submitting appearance save as to costs. The Court expressly found error attributable to the JRPP at [229], [245]-[246] in Rossi (No 3). The JRPP relied on Develtor Property Group Pty Ltdv Newcastle City Council [2001] NSWLEC 47 at [38] but that can be distinguished on its facts, as it was in De Haas v Williams. Cutcliffe at [23], [50(c)] also displaces the JRPP's primary submission, see also Seller v Jones McColl JA (Ward JA agreeing at [59]). In Cutcliffe Biscoe J ordered the council which filed a submitting appearance to pay costs, contrary to the JRPP's primary submission. Seller v Jones [2014] NSWCA 19 per McColl JA at [59] identifies that while the rules provide for the filing of a submitting appearance the rules do not provide for the costs implications of doing so.
Interest on any costs awarded is sought per Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138; (2012) 191 LGERA 51.
Response to Council's submissions
Living Choice should not be responsible for the bulk of any costs order if made against the Respondents. The Council's solicitor advised, on 10 January 2012 (the day before the summons commencing the proceedings was filed) that all mandatory considerations were addressed in relation to the stage 2 consent, and the Council subsequently also pleaded the retaining walls consent by way of discretionary defence. The Court nevertheless expressly found obligation and errors attributable to the Council in relation to ground 2 (the stage 2 consent) and 6 (the retaining walls consent) (albeit granting no substantive relief to Mr Rossi in relation to either).
Living Choice resisted the Council's contention that the Council's "error" in relation to ground 2 (the stage 2 consent) was due to it being "misled" by Living Choice. Rossi (No 3) at [224] follows [221]-[223], which are a mixture of facts and submissions wholly contingent on the ex post facto correspondence of Mr Buckham in 2011 being considered. If [224] contained any critical finding of fact by the Court it is significant that it is not characterised as lessening the findings of Council's own breaches at [228]-[230], [232], [253] or [353(a)]. Of more significance is the Council's (accurate) observation that Mr Rossi did not plead or particularise such matter(s) in any way in the FAPOC filed 29 June 2012.
Pursuant to cl 13F(2)(d) of State Environmental Planning Policy (Major Development) 2005 (now repealed), Council was permitted the function of "the receipt and assessment of development applications". It was available to the Council, if it considered that more was required, to invoke its powers under the Environmental Planning and Assessment Regulation 2000 to reject the development application (cl 51) or request additional information (cl 54). It did not do so in relation to the purported absence of reference to fill retention on the Rossi boundary. This is a failure of Council, compounding its found "error" in relation to the stage 2 consent, and is not attributable to Living Choice.
JRPP's submissions
No costs orders should be made against the JRPP. It submitted early in the proceedings and prima facie should not be subject to any costs order. No such order is sought by Mr Rossi. The Council and Living Choice's submission that if any costs orders are made against them the JRPP should also be subject to such costs should not be accepted. The principle in Hardiman at 35-36 ought apply. The only issue relevant to the JRPP was ground 2 which contained a number of sub-issues, most of which Mr Rossi did not succeed in. The only issue particular to the JRPP in ground 2 found against it was the failure to consider the Seniors SEPP. Mr Rossi obtained only technical success on two issues in ground 2. Whether the Council's assessment function was amenable to judicial review did not concern the JRPP. In Develtor Bignold J held at [42] that where a submitting appearance had not been impugned a submitting party is generally regarded as immune from any costs liability for costs incurred in proceedings after the filing of the submitting appearance save as to costs.
The finding in Cutcliffe that costs may be ordered against a submitting local council whose error caused successful litigation is distinguishable. The consent authority in that matter actively defended the proceedings and then submitted close to the hearing at [37]. The findings at [50(b)(c)] are obiter and do not apply to the facts of this case. The JRPP was not the cause of the litigation, being involved in only one ground out of six.
Some of Mr Rossi's costs to be paid by Respondents
Costs are compensatory per Latoudis v Casey [1990] HCA 69; (1990) 170 CLR 534. The Court's powers to make costs orders under s 98 of the Civil Procedure Act 2005 are broad. Under Pt 42 r 42.1 of the UCPR costs should follow the event unless it appears to the Court that some other order should be made in relation to the whole or part of the costs.
The first issue to arise is defining the relevant event(s) for costs purposes with Mr Rossi submitting the various issues in the proceedings were interlinked and could not be separated. The Council and Living Choice's submissions separated the proceedings into various issues to ascertain which parties succeeded on what in order to define the multiple events which they submitted should be applied for costs purposes. These different approaches were reflected in the evidence relied on by the parties. Mr Rossi's counsel provided a summary of the events at the hearing based on the transcript, while Mr Winram, adopted by Ms McCulloch, provided his informed impression of how long particular issues took in terms of case preparation and court time.
In proceedings concerning multiple issues in which an applicant does not succeed in all of them, and where issues are discrete, the court may consider the apportionment of costs per Brown v Randwick City Council, identifying various cases where the relevant principle has been considered in [10] and [11]. In Brown Preston J found that the fact that an applicant does not succeed on all issues raised in the proceedings is not sufficient by itself for the Court to depart from the usual rule and instead award costs only with respect to the issues on which the applicant did succeed. The issues on which an applicant does not succeed must be dominant or severable per James v Surf Road Nominees (No 2) [2005] NSWCA 296 at [35]. A strict mathematical approach is not called for per Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 6 IPR 261, Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 30 ASCR 20 at 22.
These were complex and hard fought judicial review and civil enforcement proceedings which I will consider in four parts as I believe that reflects the nature of the litigation before me. Firstly, the judicial review challenge to the stage 2 consent on the ground of a failure in notification of the stage 2 DA and numerous failures to consider mandatory relevant considerations (grounds 1 and 2), and the judicial review challenge to the validity of two notifications of the stage 2 consent (grounds 3 and 4). Secondly, a civil enforcement action for breaches of s 76A of the EPA Act by Living Choice (ground 5). Thirdly, the judicial review challenge to the retaining walls consent (ground 6). Because Mr Rossi had some success in the legal issues raised by him concerning the exercise of the Court's discretion to grant the declaratory and consequential orders arose, the fourth part.
Mr Rossi's challenge to stage 2 consent established in part
The challenges to the stage 2 consent were identified in ground 1 (failure to notify stage 2 DA by the Council), see Rossi (No 3) at [111]-[136], and ground 2 (failure to consider various mandatory relevant matters) at [137] - [253] which I consider in greater detail below. Grounds 3 and 4 were challenges to the notification of the grant of the stage 2 consent, see Rossi (No 3) at [254]-[277]. Mr Rossi was unsuccessful on grounds 1, 3 and 4. Grounds 1, 3 and 4 were discrete issues in that their factual and legal consideration did not overlap with ground 2.
Ground 2, the most substantial ground of challenge to the stage 2 consent, identified a number of alleged failures in the assessment by the Council and the determination by the JRPP of the stage 2 consent, outlined in Rossi (No 3) at [139]-[140]. The FAPOC (a)-(m) refer to failures to consider several provisions in the Seniors SEPP (clauses 30, 32, 33, 34 and 36) related to the difference in height between the Living Choice land and the Rossi land, the placement of fill and its retention, the location of existing trees, amenity impacts on the Rossi land, land form, visual appearance, landscaping, stormwater and a site analysis plan. Failures to consider the Baulkham Hills Resident Development Control Plan were also alleged in par 23(n). An alternative case is identified in Rossi (No 3) at [140] as follows:
An alternative case is found in par 25 - 27 and 29 of the FAPOC which allege that the Council (as a consent authority) was obliged under s 79C, but failed, to assess and consider the fill approved for placement on the Living Choice land, its retention and how that would impact on the amenity and privacy of the Rossi land. Paragraph 28 states that the Council was obliged to consider the conditions necessary to ameliorate the environmental impact of the fill, but failed to do so in breach of s 79C. In the alternative par 29 alleges that the Council and the JRPP deferred essential considerations about the specified matters in the assessment and determination process. Paragraph 30 alleges that the Council's assessment of the DA was manifestly unreasonable, irrational and arbitrary, not a valid exercise of statutory power and beyond jurisdiction. The same paragraphs allege that the JRPP also as a consent authority failed to properly determine the parent DA for all the same reasons.
Consideration of ground 2 required first that I determine whether the Council's assessment function was amenable to judicial review proceedings at [141]-[157]. I found that it was. The challenge to the assessment of the Council and the determination of the JRPP was considered at [158]-[253]. I found two failures to consider mandatory relevant considerations, one by the Council in its assessment under s 79C(1) and consequently a failure in the determination of the JRPP to assess and consider a mandatory relevant consideration at [226]-[229]. I summarised my conclusions in relation to this part of the case in the FAPOC par 25-30 at [230]-[233]. I found the JRPP failed to consider cl 32 and by necessary extension cl 33 of the Seniors SEPP at [243]-[246].
Those findings of failure in the assessment and determination of the stage 2 consent were significant. While Mr Rossi was not successful in relation to all the grounds identified and the consideration of all the alleged breaches was lengthy, the evidence which the Court had to consider was largely common to all the identified failures and would have had to be addressed in any event. Accordingly, my finding of failure to consider mandatory relevant matters would usually mean that Mr Rossi should be entitled to his costs in relation to this part of the case except that a further consideration arises. Mr Rossi did not obtain any of the relief sought in relation to the stage 2 consent because I concluded as part of the exercise of the Court's discretion that I would not grant such relief. In Rossi (No 3) at [395]-[408] I determined that I would not make the orders for demolition of several villas or removal of substantial areas of fill sought by Mr Rossi. In Rossi (No 4) at [9]-[12] I determined that I would not make a declaration of invalidity of the stage 2 consent. This is considered further below.
The Council submitted that it was not a proper party. I have already found that it was a proper party in Rossi (No 3) at [141]-[157] in the context of determining whether the Council's assessment function was justiciable. The Council chose to fully contest these proceedings in relation to the stage 2 consent. It is too late to be making that submission now in relation to costs when the substantive proceedings have been completed.
In relation to Living Choice's counsel's submissions, no court time was spent on the modifications ground. There is no basis for apportioning costs in relation to that ground it being entirely consequential on other findings. Similarly in relation to manifest unreasonableness no court time was occupied by that issue, see Rossi (No 3) at [252]. I will not take this aspect into account in this costs determination.
Should all Mr Rossi's costs in relation to the stage 2 consent challenge be paid?
The next issue to arise is whether all of Mr Rossi's costs should be paid in relation to the stage 2 consent judicial review challenge. It is accurate to say, as the Respondents did, that a large amount of court and the parties' time was taken up on issues in which Mr Rossi was unsuccessful in relation to grounds 1, 3 and 4 which were discrete legal and factual grounds from ground 2. Further Mr Rossi was not successful on all of the issues identified in ground 2, failing to establish error in relation to placement and depth of fill inter alia and all of the errors specified in relation to the failure to consider the Seniors SEPP. The relief sought by Mr Rossi in the FAS in relation to the stage 2 consent judicial review challenge was not granted by the Court. The issue therefore arises of whether the costs recoverable by Mr Rossi for the stage 2 consent judicial review challenge should be reduced to take into account these matters in some way.
I consider there should be some reduction of the costs awarded to Mr Rossi given the number of discrete matters in which he did not succeed. Based on a review of my judgment, my recollection of the matter, the summary of the hearing by Mr Rossi's counsel and the affidavit of Mr Winram, and doing the best I can in a somewhat impressionistic not strictly mathematical exercise, I consider that Mr Rossi's costs in relation to the stage 2 consent challenge should be reduced by 50 per cent. I should note that I later find that there was no disentitling conduct relevant to costs on Mr Rossi's part.
Retaining walls consent challenge established
The judicial review challenge to the retaining walls consent identified in the amended reply was upheld and that consent was declared to be invalid. The retaining walls DA was approved by the Council as the relevant consent authority after the proceedings were commenced by Mr Rossi as a response by Living Choice and the Council to the issue of what should be done on or near the Rossi boundary. It was a separate stage in the proceedings. I consider Mr Rossi had little choice but to include a challenge to the validity of that consent in these proceedings if all issues in relation to his boundary were to be resolved. The issues relevant to the validity of this consent were also substantial, contrary to the Council's submission, as can be seen in Rossi (No 3) at [346]-[351]. I declared the retaining walls consent to be invalid in a declaration made in November 2013 following Rossi (No 4) at [13]-[21]. Mr Rossi should get his costs of this part of the proceedings.
Civil enforcement proceedings against Living Choice established
The civil enforcement proceedings were discrete and related to work done by Living Choice on the Rossi boundary which included the removal of a large number of mature trees without development consent. Work done on Rossi land and on the boundary included trench work underpinning the keystone concrete block wall on the boundary (which I found was constructed unlawfully without development consent by Living Choice) and illegal tree removal. Mr Rossi had substantial success in that orders were made on 25 November 2013 which included the removal of the keystone concrete block wall and significant landscaping works including the establishment of mature trees. I do not agree with Living Choice that its admissions in the defence rendered this part of the proceedings largely unnecessary given the substantive issues that nevertheless remained to be resolved by the Court.
Living Choice's submissions sought to minimise the extent of Mr Rossi's success by submitting that it admitted in its defence some of the breaches found by the Court and had made offers to do work on the boundary and replant trees removed. This underestimates the findings I made in Rossi (No 3) at [304]-[309] in relation to the extent of unlawful tree removal, which was extensive. It also underestimates the significance of my finding that the keystone concrete block wall was not exempt development and therefore required development consent at [325]-[329] and that consequential excavation and trench filling had been carried out without development consent at [330]. I found that work was not de minimis at [330]. Mr Rossi was successful in this part of the proceedings and obtained ameliorative orders as I discuss in the next paragraph. Mr Rossi should have his costs of this part of the proceedings paid by Living Choice (and not the other Respondents).
Exercise of discretion to make ameliorative orders in relation to retaining walls consent and civil enforcement proceedings
As part of the exercise of the Court's discretion, consequential orders requiring extensive landscaping and a new boundary fence on the Rossi boundary inter alia were made on 25 November 2013. These orders related to both the landscaping on the Rossi boundary the subject of the retaining walls consent and to the civil enforcement part of the proceedings. Mr Rossi should be awarded his costs of this part of the proceedings which are the subject of Rossi (No 4) at [13]-[28] and Rossi (No 5). It is difficult to separate the exercise of discretion concerning the making of ameliorative orders as between the retaining walls consent and the civil enforcement proceedings (which concerned Living Choice only). Both Living Choice and the Council are liable for these costs.
Exercise of discretion not to grant declaratory or other relief in relation to stage 2 consent
The exercise of discretion by the Court as to whether to grant the relief sought in the FAS arose because Mr Rossi was successful in part of his judicial review challenge to the stage 2 consent (and in relation to the retaining walls consent as already identified above). The Council's contention that it had no role to play in the exercise of discretion and therefore should be insulated from liability for these costs ignores the circumstance identified in the preceding sentence. It was only necessary for the Court to exercise discretion whether to grant relief because of the collective failure of the Council and the JRPP. The Council should not be insulated on that basis alone from any costs order if appropriate.
The extensive evidence and submissions I considered in relation to the exercise of discretion whether to order demolition of several villas and a large area of fill are set out in Rossi (No 3) at [357]-[408] or to declare the stage 2 consent invalid in Rossi (No 4) at [9]-[12]. I held the issue was finely balanced and determined not to require the demolition sought by Mr Rossi in Rossi (No 3) at [408]. I also did not make the declaration of invalidity of the stage 2 consent sought, as found at Rossi (No 4) at [12]. That Mr Rossi failed to obtain that relief does not mean that his case should be considered a failure however. The finding of error in the assessment and approval process of the stage 2 consent was substantial.
While I ultimately determined I would not exercise my discretion to grant the relief sought by Mr Rossi in relation to the stage 2 consent that was due to the balancing of a number of factors such as the long term leasing of parts of the stage 2 development to third parties not joined in the proceedings. I do not consider Mr Rossi should be described as the unsuccessful party. Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685, relied on by Living Choice in relation to whether a party can be regarded as successful, is not applicable for the reasons given by Mr Rossi, namely in that case the plaintiff obtained nominal damages only. It has no application in the circumstances here of informing my consideration of whether Mr Rossi was a successful party. That submission fails to recognise that Mr Rossi did establish a legal right to relief irrespective of whether a remedy was granted. The necessarily lengthy consideration of issues relevant to the exercise of the Court's discretion whether to order demolition considered in Rossi (No 3) arose directly because Mr Rossi was successful on ground 2. No criticism can be made of Mr Rossi that the consideration of discretionary considerations was lengthy. That reflected the circumstances the parties wished to put before the Court, none of which were irrelevant to the exercise of the Court's discretion. Each party should pay its own costs of this part of the proceedings (Rossi (No 3) at [357]-[408] and Rossi (No 4) at [9]-[12]).
Hearing of 17 July 2013 - no disentitling conduct
The Council and Living Choice both alleged disentitling conduct by Mr Rossi and sought their costs of the hearing set down for 17-19 July 2013 and preparation for that hearing. The parties referred the Court to the transcript of 17 July 2013. The hearing of 17-19 July 2013 did not ultimately proceed as intended. One day was used to consider a NOM filed by Mr Rossi on 8 July 2013 seeking orders relating to Rossi (No 3). The motion was not finally dealt with by the Court because of the way events unfolded and I did not read any of the affidavits filed by the parties in relation to the orders which might be made in the exercise of the Court's discretion. In this costs hearing criticism was made of Mr Rossi's affidavits as scandalous and traversing matters already dealt with in Rossi (No 3). The same affidavits were tendered by the Council and Living Choice in this costs hearing as exhibits to the affidavits of Mr Winram and Ms McCullough.
The transcript tendered as part of exhibit 1A shows in my view that the parties collectively decided that they would not proceed with the intended hearing and agreed the matter should be determined by the Court on the basis of the evidence adduced in the first hearing. That all parties spent time and money preparing affidavits they did not ultimately rely on was not caused by Mr Rossi's actions. All the parties concurred in that approach. Further Mr Rossi did not press for final determination of his motion. There is no basis for awarding costs against Mr Rossi in relation to that hearing as there was no disentitling conduct by Mr Rossi.
I do not accept the Council's characterisation of the events on that day in par 32 such as that lengthy affidavits of Mr and Mrs Rossi were filed in support of the NOM. These were filed in relation to the substantive hearing on relief which did not proceed by agreement of the parties. Whether the motion was doomed to fail does not arise as I did not need to finally determine it. As already noted above, I did not consider the evidence filed by Mr Rossi, or indeed any of the parties, as the hearing on relief did not proceed. There is no reason to review the affidavits in this costs application, indeed I should not in accordance with the cautionary note identified in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624.
Each party should pay his or its costs of preparation for and attendance at the hearing on 17 July 2013.
No other disentitling conduct
I also agree with the submission of Mr Rossi's counsel at par 18 that what happened after delivery of Rossi (No 3) was an iterative process where the parties proposed different versions of orders the Court might make. These were refined over time based on my comments at several mentions. No disentitling conduct by anyone arises in those circumstances.
There is no disentitling conduct referred to by Living Choice in particular which suggests that Mr Rossi should not otherwise get some of his costs. A number of the matters identified by Living Choice are irrelevant to this costs determination. That there were settlement negotiations between the parties before the proceedings were commenced does not mean Mr Rossi engaged in disentitling conduct and underestimates the successes that he did have in the proceedings.
These were complicated proceedings. The outstanding difficulty with the proceedings overall in my view is that the matter should have been set down for much longer than the initial four days, a period all parties must have acquiesced to. I do not make any adverse findings in relation to the criticisms of the Respondents for how the proceedings were run by Mr Rossi's counsel. The Respondents (except the JRPP) chose to fully contest all the matters put by Mr Rossi's lawyers. None of these lacked merit or were plainly hopeless. I accepted that Mr Rossi did not receive the Council's notification of the stage 2 DA.
Should there be apportionment of costs as between the Council and Living Choice?
The Council and Living Choice each made submissions that the other should be liable in the event costs are ordered to be paid by the Respondents. I will consider the JRPP separately.
In relation to the stage 2 consent I do not consider I should apportion any costs order as between the Council and Living Choice, contrary to the Council's submissions. The unfortunate circumstances which resulted in the Council officer Mr Buckham not appreciating the Rossi boundary treatment then proposed by Living Choice is set out in Rossi (No 3) at [221]-[223] but I did not make any finding that Living Choice misled the Council. As Living Choice submitted the Council could have sought more information about any matter of concern. The Council's engineering department did request further detail about the amount of fill to be located on the land. The plan provided showed fill was intended across the whole site, see Rossi (No 3) at [219]. I found that the assessment of the placement of fill on Living Choice land occurred but not the containment of that fill along the Rossi boundary, which was clearly necessary given the marked differences in levels of the proposed stage 2 development and Mr Rossi's land particularly at the western end of the Rossi boundary. The change in contour of the Rossi land was clearly discernable in photographs before the Court. Contour levels were also identified on plans submitted by Living Choice to the Council.
I would characterise the situation as one where in the assessment of a large scale development insufficient attention by both Living Choice in the plans submitted in support of the stage 2 DA and the Council in its assessment of those plans was directed to the containment of fill on all sections of the boundaries. This can be seen from the plans, including the cross-sections, lodged by Living Choice. The cross-section for the Rossi boundary was not directed to the western part of the boundary where the height difference was most extreme, see Rossi (No 3) at [220]. The Council's officers also apparently failed to appreciate the difference in height between the two properties would require retention of the fill indicated. Contour lines were provided on the plans filed by Living Choice. Fault does not obviously lie with either Respondent in my view. Apportionment as between them is not warranted in relation to the stage 2 consent judicial review challenge. Both Living Choice and the Council actively engaged in the proceedings and both should be liable for these costs.
Living Choice submitted the Council should pay the costs of ground 6 (the retaining walls consent). Living Choice participated actively in all the issues in the proceedings including in relation to the retaining walls consent. It should also be liable for Mr Rossi's costs in relation to that ground.
Should the JRPP be subject to costs order?
The JRPP's submission that it was not the cause of the litigation is not correct. It approved the stage 2 consent. If it had not approved that development this litigation would not have been commenced by Mr Rossi. At that broad level it can be considered entirely the cause of the litigation in relation to the stage 2 consent by virtue of its development assessment and approval role as the consent authority under the EPA Act. I considered that role in Rossi (No 3) at [141]-[157] in the context of determining whether a council's assessment function under the EPA Act was amenable to judicial review. At [151] I found unremarkably that the JRPP must comply with s 79C of the EPA Act when determining a DA. That the JRPP chose to rely on the Council's assessment as it was able to do under the EPA Act does not diminish the importance of its statutory assessment and determination functions under the EPA Act in relation to the stage 2 consent.
The JRPP filed a submitting appearance save as to costs early in the proceedings as provided for under UCPR r 6.11. The rule makes no provision for costs in the event such an appearance is filed. That the rule providing for a submitting appearance does not provide for the costs consequences of doing so was confirmed by the Court of Appeal in Seller v Jones per McColl JA at [59], upholding the decision of the trial judge to award costs against a submitting party in the circumstances of that case. According to Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005 to date (loose leaf at Service 87, July 2014) ordinarily where a submitting appearance is filed save as to costs a submitting party is not liable for costs incurred from the date of filing the submitting appearance at [6.11.10]. Ritchie then identifies at [6.11.15] two categories of cases where the cost consequences of submitting appearances have been considered, one being judicial review cases and one being cases where a council files submitting appearances in development consent proceedings in this Court. The cases cited include Develtor, where no costs order was made against a submitting council, and De Haas, Cutcliffe and Trenwith v Sutherland Shire Council (No 3) [2006] NSWLEC 490 in which costs orders were made against a submitting council.
The JRPP relied on the Hardiman principle as justifying its position to file a submitting appearance and also as supporting its submission that it should not bear any costs. Whether that principle can be said to operate under the statutory context of the EPA Act is a matter for debate to be determined in the context of a particular proceeding. Underpinning the principle in Hardiman is the importance of considering whether the impartiality of the consent authority is affected by its participation in proceedings. Despite what was said in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 by Gummow and Gaudron JJ at 77-78, a non-binding authoritative statement by the two learned justices that the council in that case might have been expected not to be a protagonist because this might endanger its impartiality in subsequent applications by the applicant, councils regularly appear and actively participate in judicial review proceedings in this Court where development consents are challenged in cases where there is another contradictor and cases where there is not. The JRPP is a consent authority under the EPA Act and similar considerations apply to it.
In Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 at [249]-[252] Biscoe J considered under the heading of the active role of the council in the proceedings the application of the Hardiman principle in judicial review proceedings challenging the making of a local environmental plan referring to observations by Basten JA in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 (a case where apprehension of bias of an acting commissioner was raised). At [251]-[252] his Honour stated:
251 Oshlack and Murlan inform the role of a council in development appeals in this Court. I would respectfully observe that development consents are subject to consideration of a range of mandatory matters, including the public interest and environmental impacts: s 79C EPA Act. This may raise for further consideration whether a developer, with an eye to its commercial interests, is necessarily the proper contradictor and whether it is necessarily appropriate for the Council to submit to such order as the Court might make, at least where considerations such as the public interest and environmental impact are involved.
252 In the present case, some of the applicant's grounds of challenge go to the power of the Council and to alleged ostensible bias by the Council and to that extent, in my view, there is no conflict with the Hardiman principle. Otherwise, I think that Hardiman is distinguishable. I leave aside the fact that Village was not initially joined in the proceedings. The public interest at stake in the case of the making of a LEP does not necessarily correspond with the commercial interests of a developer and is generally broader than where a development consent by a council is under challenge. It is a council's role to balance a wide range of competing interests when addressing the matter of a LEP. In such a case, I consider that the Hardiman principle is generally inapplicable.
In Cutcliffe Biscoe J had to determine costs consequences, if any, in judicial review proceedings of the grant of a development consent where a council filed a late submitting appearance save as to costs. His Honour resolved that the council should pay costs as it was the cause of the litigation. Biscoe J identified in obiter some general guidelines which he considered applied to the exercise of the Court's discretion to order costs in circumstances where one party has filed a submitting appearance. While these observations are obiter they are helpful, with [50] (a), (b) and (c) arguably applying to the circumstances of the JRPP in this case. In Brown Preston J also found at [25] that ordinarily the consent authority whose error caused the litigation would be liable for costs, citing Cutcliffe at [50]. Preston J found that a consent authority cannot immunise itself from costs by entering a submitting appearance because then a successful applicant cannot be properly compensated in costs, at [25].
For the reasons articulated by Biscoe J in Cutcliffe, particularly in [50(c)], I consider the JRPP should also be liable for costs jointly and severally with the other Respondents in relation to the stage 2 consent judicial review challenge. As Living Choice submitted, cases such as De Haas v Williams at [72], Cutcliffe and Seller v Jones do not support the JRPP's primary argument relying on Develtor. That decision has been distinguished or not applied subsequently. As I understand the various cases referred to, each case involving a submitting council is likely to be determined on its own facts rather than on the basis of a presumptive approach that costs incurred will not be awarded after a submitting appearance is filed.
The JRPP had no role to play in relation to the retaining walls consent and should not be liable for costs in relation to that consent.
Conclusion
All respondents should pay 50 per cent of Mr Rossi's costs of the stage 2 consent judicial review challenge the subject of Rossi (No 3) at [111]-[277]. Each party should pay its own costs of the exercise of discretion whether to order demolition as considered in Rossi (No 3) at [357]-[408]. Mr Rossi's costs in relation to the retaining walls consent judicial review challenge (ground 6) should be paid by Living Choice and the Council (at Rossi (No 3) at [331]-[356] and Rossi (No 4) at [13]-[21]). Living Choice should pay Mr Rossi's costs of the civil enforcement proceedings (ground 5) (at Rossi (No 3) at [278]-[330]). Living Choice and the Council should pay Mr Rossi's costs for the exercise of discretion by the Court to make ameliorative orders in relation to the civil enforcement and retaining walls consent grounds, as found in Rossi (No 4) at [22]-[29] and Rossi (No 5). Each party should pay its own costs of the preparation for and attendance at the hearing on 17 July 2013.
The proposed orders will be provided to the parties in draft form in case these require clarification before being finalised. The parties will also need to advise the Court if they wish to make any submissions about the awarding of costs of the costs motion, if any such order is to be sought.
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Amendments
26 August 2014 - hearing date, text in brackets deleted
Amended paragraphs: coversheet, paragraph 92
Decision last updated: 26 August 2014
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