Smyth Maher & Associates Pty Limited v Coffs Harbour City Council

[2006] NSWLEC 742

Land and Environment Court

of New South Wales

CITATION:

Smyth Maher & Associates Pty Limited v Coffs Harbour City Council [2006] NSWLEC 742

PARTIES:

APPLICANT
Smyth Maher & Associates Pty Limited

RESPONDENT
Coffs Harbour City Council

FILE NUMBER(S):

11445 of 2005; 11446 of 2005

CORAM:

Jagot J

KEY ISSUES:

Costs :- planning appeal - development consents granted after applicant lodged supplementary information - whether fair and reasonable for the Council to pay the applicant's costs - no order for costs made

LEGISLATION CITED:

Land and Environment Court Act 1979 s 69
Land and Environment Court Rules 1996 Pt 16 r 4

DATES OF HEARING:

9/11/2006

EX TEMPORE JUDGMENT DATE:

11/09/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green (solicitor)
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr B Langler (solicitor)
SOLICITORS
MBT Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

9 November 2006

11445 of 2005
11446 of 2005

SMYTH MAHER & ASSOCIATES
Applicant

COFFS HARBOUR CITY COUNCIL
Respondent

JUDGMENT

Jagot J:
Introduction

1 This is an application for costs by the applicant for development consent in two class 1 appeals. The application for costs must be determined in the context set by Pt 16 r 4 of the Land and Environment Court Rules 1996, which operates upon the broad discretion in s 69 of the Land and Environment Court Act 1979.

2 Relevantly, Pt 16 r 4(2) provides that no order for the payment of costs will be made in proceedings to which the rule applies unless the court considers that the making of the costs order is, in the circumstances of the particular case, fair and reasonable. This directs attention to the circumstances of the particular case, including the outcome of the particular case and the conduct of the parties in facilitating that outcome.

3 In this case there is no question that the applicant was successful with respect to its development applications in that the Court granted development consent to the development applications in an ex tempore decision of 17 October 2006. However, as is common with proceedings of this nature, there is something artificial about describing an outcome as one of either “success” or “failure” because, as a consequence of various actions including those facilitated by certain directions made by the Commissioner, the Council itself also ultimately reached the view that granting the development consents, subject to conditions, was appropriate. The Court imposed 28 conditions upon each development consent including conditions regulating the removal of vegetation in accordance with information brought into existence on 5 and 12 October 2006, and the preparation of vegetation management plans, the carrying out of certain surveys, and compensatory planting.

4 In these circumstances, it would be more appropriate to recognise that the course of conduct of the appeals resulted in a successful outcome for both parties to this litigation - by the grant of a development consents that were seen by both parties and by the Court as appropriate, subject to conditions.

5 The applicant says that it is fair and reasonable that an order for costs be made against the Council subsequent to the determination by Lloyd J of a point of law relating to the need for objections under State Environmental Planning Policy No 1. In support of this application the applicant points to the facts that: - (i) ultimately, the Council accepted that development consent should be granted to the proposed developments and hence abandoned the issues which it had previously raised; (ii) the applicant had maintained the same case at all times and obtained the development consents; (iii) the Council deleted the ecological issues once it appreciated that it was in error in thinking that certain legislative amendments applied to the development applications which were in fact saved by legislative instrument; (iv) the Council was in error in thinking that the question whether or not the proposed developments would have a significant effect on threatened species or their habitats had to be determined absent any consideration of ameliorative conditions; and (v) as it turned out, it was the Commissioner not the Council who requested further information, which the applicant provided – leading to approval in circumstances where, had the Council itself raised those issues, the matters all could have been resolved without the need for a hearing.

6 Mr Langler, appearing for the Council, observes that fair consideration of the course of conduct of the Council over the proceedings shows that it was reasonable at all relevant times. He points to the fact that once it had been determined that SEPP 1 objections were required and were in fact lodged, the Council accepted that those objections could be upheld and deleted issues associated with that matter. Further, once the Rural Fire Service provided advice about bushfire issues, the Council accepted that advice and deleted the bushfire issues. The planners should have met by 21 August but they did not do so, and regrettably did not meet until the morning of the hearing. Once they did so they provided a joint statement and, consistent with that joint statement, the Council determined not to press any planning issues. That left on foot the ecological issues. These issues had to be considered in the context of Mr Langler’s letter to the applicant’s solicitors of 22 August which, while reflecting the error about the savings and transitional regime, nevertheless clearly requested further information about vegetation removal, including a map of all mature and over-mature native trees as well as other information, including with respect to compensatory planting.

7 Mr Langer submits that when the matter was heard, and as is apparent from paragraph 18 of the Commissioner’s decision, the Commissioner (having heard from both the bushfire and ecological experts) became concerned, as had the Council, that the impact on habitat by bushfire protection clearing and the verification of the existence or not of endangered species had not been the subject of sufficient on site surveys. True it is that, through the hearing process, the Council accepted that the question of significance of effect should take into account the ameliorative conditions (contrary to its original position). But it is clear from para 18 of the Commissioner’s reasons that, despite that fact, the Commissioner (in common with the Council) was of the view that the applicant should provide further ecological information to support its applications. Indeed, the Commissioner made a direction recording that in his view further information was required to support the applications including a survey of trees so that the extent of tree clearing could be determined. Thereafter, he required the bushfire and ecological experts to meet on site to ensure, as he described it, that “all relevant aspects are attended to”, and that a further joint report was prepared.

8 Those matters, to some considerable extent, reflect Mr Langler’s letter of 22 August. I infer that they were indeed attended to by the applicant because the Commissioner’s judgment incorporates reference to various ameliorative conditions that could and should be imposed in order to ensure that the development could be appropriately carried out. This is consistent with Mr Langler’s submission that, once the parties had worked through the Commissioner’s directions, the Council was itself satisfied that consent could be appropriately granted to the applications, subject to conditions. That is what occurred and, as I have already said, consents were granted on conditions, including conditions referring to the very information that the applicant brought into existence pursuant to the 5 and 12 October reports required by the Commissioner.

9 It is in these circumstances that I emphasise that if it be the case that a primary consideration in any costs order application in a class 1 appeal is the outcome of proceedings, then the outcome of these proceedings should be seen as one where, even though some mistakes were made and even though some delays occurred, and where no doubt it would have been preferable if better communication between the parties had enabled all of the relevant information to be put before the Commissioner on the first day of the hearing, the ultimate result was one of successful resolution of an issue between the parties. The result was not one where the applicant succeeded and the Council failed but one where a mutually appropriate resolution was achieved.

10 That factor seems to me to point strongly to a conclusion that, absent some particular conduct on the part of the Council, no order for costs should be made. I do not consider the two errors that Mr Langler has frankly conceded the Council made about the legal position (and which were corrected as soon as Mr Langler became apprised of the true position) had any real effect on the course of these proceedings. The fact is that Mr Langler informed the applicant about the need for at least a tree survey well before the hearing. At the hearing, the Commissioner reached the same view, made directions for that to occur, and then ultimately consents were granted limiting tree removal to the trees specified in that tree survey.

11 In my view, the particular circumstances of this case do not suggest that it is fair and reasonable that the Council be ordered to pay the applicant’s costs or indeed any part of the applicant’s costs of these proceedings. Accordingly I dismiss both notices of motion.

12 Mr Langler seeks an order that the applicant pay the Council’s costs of the notices of motion. He is correct when he observes that the usual practice in relation to such notices of motion is that costs follow the event. It is also true, as Mr Langler observes, that Pt 16 r 4(2) provides that in these proceedings there shall be no order as to costs unless in the particular circumstances of the case it is considered fair and reasonable that a costs order be made.

13 Mr Green says that no order for costs of the motion should be made primarily for two reasons. First, that the bringing of the notice of motion for costs itself was not unreasonable, which I accept. Secondly, that there is no question that the overall costs of the proceedings were increased by reason of various conduct to which he has referred which, for the reasons I have already given, I do not accept.

14 The fact that I accept that it was not unreasonable for the applicant to bring a costs motion is not an answer to the relevant question. Costs of the motion would be compensatory to the Council for having been put to the expense of Mr Langler preparing his affidavit of 7 November and having attended here today for the purpose of making submissions, which I have accepted. In those circumstances I consider that it is fair and reasonable that the usual order for costs of the motion should be made and I propose so to order.

15 Accordingly, I make the following orders in both sets of proceedings:

(a) The applicant’s notice of motion for costs is dismissed.

(b) The applicant is to pay the respondent’s costs of that motion as agreed or as assessed.

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