The Council of the Shire of Muswellbrook v G R and a E Collins

[1989] NSWLEC 235

Land and Environment Court

of New South Wales

CITATION:	The Council of the Shire of Muswellbrook v G R and A E Collins [1989] NSWLEC 235
PARTIES:	APPLICANT The Council of the Shire of Muswellbrook RESPONDENT G R and A E Collins
FILE NUMBER(S):	40262 of 1989
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	08/30/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 23rd November, 1988 the Applicant commenced Class 4 proceedings claiming a number of declarations in respect of the use being made by the Respondents of certain land situate in Muswellbrook and an injunction restraining the use of the land for the purpose of "a trucking depot and/or employees' car park".

The matter was mentioned on a number of occasions at the Registrar's call-over and usual directions for filing of affidavits were given. At the call-over held on 23rd June, 1989 (after affidavits had been filed), the Applicant indicated that the matter was likely to be settled. Finally at the call-over on 18th August, 1989 the Applicant announced its intention to withdraw its application. However the question of costs was in issue.

On the hearing of the matter today, I formally disposed of the proceedings by ordering, by consent, that the application be dismissed.

In consequence of that order each party sought an order for costs. As I understood the Applicant's claim, it is founded on the proposition that the Respondents brought the proceedings on themselves in as much as had they provided evidence to the Applicant of their existing use entitlement at the time the Applicant sought such evidence the proceedings would not have been commenced. The proceedings, would, so the argument went, have been unnecessary. Since however the Applicant was not satisfied of the Respondent's existing-use entitlements it was submitted that the Applicant had no choice but to commence the proceedings, particularly in the light of neighbour complaint against the Respondents' activity.

The Respondents' claim to costs was founded upon the proposition that the termination of the proceedings vindicated the Respondents. They were the successful party and accordingly were entitled to costs following the event.

The relevant principles are not in doubt. Although costs are in discretion of the Court, the successful party will normally obtain its costs unless it is guilty of misconduct in the proceedings or in relation to the issues raised in those proceeding, whereas an unsuccessful party will obtain costs only in the most exceptional circumstances.

In my opinion there are no exceptional circumstances in the present case such as would justify an order in favour of the unsuccessful Applicant or such as would justify a denial of costs to the successful Respondents.

I have given particular attention to the Applicant's submission that it is incumbent upon a person claiming the benefit of a existing use entitlement to appropriately establish it. It is not clear to me when and how this entitlement would normally be expected to be established. The only way of doing so with certainty and finality would be to obtain a judicial declaration. However this approach should not generally be regarded as necessary. Moreover it could prove to be particularly burdensome especially given the high incidence of existing use entitlements and the increasing difficulty of proof the longer the period of user that must be proved. In the present case, the user goes back more than 40 years! If something less than legal proof such as would justify the making of a judicial declaration is to be acceptable, as Counsel for the Applicant submitted to be the case, what standard of proof is required? I think I have said sufficient to indicate that I do not accept the proposition that it is incumbent upon

a person claiming an existing-use entitlement to establish that entitlement to the satisfaction of the planning authority. Unlike the English planning legislation, there is no facility provided by the Environmental Planning and Assessment Act for the obtaining of 'existing-use' certificates and the like by administrative as opposed to judicial process.

In the present case, I am satisfied on the evidence of the conduct of the parties prior to the proceedings being commenced that it cannot fairly be said that the Respondents have brought the litigation upon themselves or that they have been guilty of any misconduct in the relevant sense such as would disentitle them to their costs even though they are the successful party.

Accordingly for the foregoing reasons, I dismiss the Applicant's application for costs and order that the Applicant pay the Respondents costs.