Walker v Kempsey Shire Council

[2003] NSWLEC 56

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Land and Environment Court

of New South Wales

CITATION:	Walker v Kempsey Shire Council [2003] NSWLEC 56
PARTIES:	APPLICANT: Walker RESPONDENT: Kempsey Shire Council
FILE NUMBER(S):	10721 of 1999
CORAM:	Bignold J
KEY ISSUES:	Costs :- class 1 proceedings dismissed for want of prosecution
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	22/02/2002
EX TEMPORE JUDGMENT DATE :	02/22/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr J C Boswell (Agent) SOLICITORS N/A RESPONDENT: Mr G E Underwood, Barrister SOLICITORS Howard Sheridan Cooney Harvey

JUDGMENT:

IN THE LAND AND

Matter No. 10721 of 1999

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

22 February 2002

E WALKER

Applicant

v

KEMPSEY SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. Earlier today I dealt with an application by the Council for an order for costs against the Applicant in these class 1 proceedings which were concluded in circumstances that I had earlier outlined on 12 September 2001 when Commissioner Brown ordered that the appeal be dismissed for non-prosecution and that the development application to extract sand from a property in the Kempsey Shire be refused.

2. My adjudication on the Council’s application for costs was that in the circumstances of this case, the Court should not depart from its usual practice or policy of not awarding costs in planning appeals.

3. The Council had put its case on the basis that special circumstances had existed, especially in relation to the conduct of the case by the Applicant on 11 and 12 September 2001. I will not repeat what I said there. Ultimately, I concluded that no special circumstances had been established and that in the circumstances of a rather protracted, complex and unsatisfactory piece of litigation, its even untimely conclusion did not justify any order for costs.

4. Consequent upon my decision in that matter, I invited Mr Boswell, the agent for Mr Walker, to obtain further instructions as to whether his principal, Mr Walker, still wished to proceed with his application for costs. That application has only been belatedly made and is supported by an affidavit prepared by Mr Walker sworn on 19 February 2002.

5. Much of the affidavit material was objected to by Counsel for the Council and I ruled upon the objections to admissibility, not receiving into evidence a number of the paragraphs in the affidavit.

6. Having obtained instructions, Mr Boswell indicated that his principal, Mr Walker, wished to proceed with his application for costs and in that behalf Mr Boswell has prepared a detailed written submission which he has spoken to in the course of today’s proceedings.

7. The Council has tendered a letter from the New South Wales Ombudsman dated 27 November 2001 to the Council advising the Council that the Ombudsman had decided to take no further action on the complaint that Mr Walker had made against the Council and providing a copy of the Ombudsman’s letter of the same date to Mr Walker.

8. In that detailed letter of some eight pages the Ombudsman’s investigation officer details the several complaints that have been made against the Council by Mr Walker over the years and many of those complaints concern the subject matter of Mr Walker’s development application which was the subject of the present proceedings together with an application made by Mr Phillips on adjoining land to Mr Walker’s land for the development of a quarry or sand extraction activity.

9. The Ombudsman discusses those matters at some length in is letter and concludes:-

In relation to both your DA and Mr Phillips’ approval you exercised rights of appeal available to you under the Environmental Planning and Assessment Act and having undertaken enquiries into the circumstances of your complaint I am not satisfied that special circumstances are present in this case and I am therefore effectively barred from investigating these matters.

10. In that behalf the Ombudsman’s letter cites the provisions of the Ombudsman Act 1974, s 13(5) which provide:-

The Ombudsman shall not investigate the conduct of a local government authority if that conduct is the subject of a right of appeal conferred by an Act unless the Ombudsman is of the opinion that special circumstances make it unreasonable to expect that right to have been exercised.

11. The letter concludes with the words which are quite apt for me to adopt on the basis of what I have heard from Mr Walker and his agent, Mr Boswell, both today and when the matter was before me on 11 September 2001 inasmuch as the Ombudsman’s letter says:-

Notwithstanding the strength of your belief that Council has engaged in a vendetta against you over a long period of time and that a level of corruption exists within the Council on the basis of my enquiries I do not consider that there is sufficient prima facie evidence of maladministration or wrong conduct in relation to any of the issues you have raised to warrant formal investigation. In the circumstances no further action will be taken and I will be closing the file.

12. I refer to that Ombudsman’s letter not because it directly impacts upon the exercise of the Court’s discretion called upon in the present case but because, as I said, it records Mr Walker’s great sense of grievance against the Council which I have perceived not only today, but when the matter was before me on 11 September 2001 and when other proceedings in which Mr Walker brought an objector appeal to this Court against the grant by the Council of development consent to his neighbour and competitor Mr Phillips’ sand extraction activity and I would respectfully adopt for myself what has fallen from the Ombudsman in acknowledging the deep seated conviction on the part of Mr Walker.

13. However, another aspect of the Ombudsman’s letter is to the point for present purposes, namely, the double fact that Mr Walker actively exercised rights of appeal in respect of the grant of development consent to Mr Phillips’ development where he brought an appeal pursuant to s 98 of the Environmental Planning and Assessment Act entitling an objector to designated development to appeal against the grant of consent and where in the case of his own development application Mr Walker has appealed against the Council’s decision to refuse development consent to his own application. This indicates that Mr Walker has fully availed himself of statutory rights of appeal in both cases.

14. Significantly, in the present case, the proceedings have come to an end in circumstances fundamentally caused by decisions by Mr Walker himself. I refer, of course, to the fact that following the Commissioner’s decision not to grant leave to the amended development application on 12 September 2001, Mr Walker chose not to prosecute the original application.

15. Nothing in the written submissions or his oral submissions ably put together by Mr Boswell dispels the obvious inference to be drawn from these circumstances that Mr Walker acted volitionally and deliberately and responsibly. The inference is unavoidable that Mr Walker freely chose not to prosecute the case.

16. His application for costs ultimately has come down to this proposition by way of assertion—that the Council, through the Councillors and the Council staff, have so discharged their statutory functions and exercised their statutory powers in both these matters (namely, his own development appeal and his objector appeal against the grant of consent to Mr Phillips’ adjacent development) in a manner that was oppressive or unfair to him and that he was, as it were, forced to come to Court to take the action by way of exercise of statutory rights of appeal in both cases and but for the Council’s misbehaviour in the way in which it determined the respective development applications the proceedings would not have been necessary.

17. If Mr Walker had been vindicated in the two pieces of litigation that he has engaged in in this Court, then a case for costs in his favour may well have been anticipated if he had made good his assertion against the Council but the plain fact is that he has been vindicated in neither piece of litigation; in fact, he has failed in both.

18. In these circumstances, a claim for costs of the proceedings by Mr Walker is, indeed, groundless. The claim may reflect, as the Ombudsman’s recent letter has indicated, a sense of grievance but it is not one that has been vindicated or established in the present litigation.

19. It is true that in the course of his address I reminded Mr Boswell not to stray into past facts which were not relevant and he acted very responsibly in confining his submissions but ultimately he has failed to make out his case that his principal, Mr Walker, has been the victim of some oppression on the part of the Council, its Councillors and its staff in the way in which the Council determined his development application.

20. The development application was determined for the reasons stated in the Council’s determination which on their face are regular and unexceptional reasons for such a determination.

21. The right of appeal to this Court gave Mr Walker a full entitlement to have the Court exercise its independent powers to make an independent judgment in the case. For reasons best known to himself he has cut short that process and the Court has not ultimately been called upon to determine on the merits the original development application which was the subject of the original appeal.

22. In these circumstances, no special circumstances have been established by Mr Walker who must be adjudged to be the unsuccessful litigant in this case. It is a rare case that any Court will exercise its costs powers in favour of an unsuccessful litigant. In view of the Court’s practice of not awarding costs in planning appeals, it would require an extremely exceptional case for the Court to exercise its costs power to award costs in favour of an unsuccessful party in a planning appeal.

23. In my opinion, the just result in this litigation, unsatisfactory though its history has demonstrated, including its ultimate disposition, is that there should be no order for costs in the proceedings.

24. Accordingly, both the Council’s and the Applicant’s Motions for costs are dismissed and except for orders that have been made by the Registrar earlier in the case in relation to earlier stages of the litigation, I order that each party pay its own costs.