Kempsey Shire Council v Tebran Pty Limited (No 2) [2008] NSWLEC 64

Land and Environment Court of New South Wales

CITATION : Kempsey Shire Council v Tebran Pty Limited (No 2) [2008] NSWLEC 64

APPLICANT Kempsey Shire Council PARTIES : RESPONDENT Tebran Pty Limited

FILE NUMBER(S) : 40413 of 2007

CORAM: Jagot J

KEY ISSUES: Costs :- civil enforcement proceedings - respondent succeeded on all issues - no circumstance displacing the usual order as to costs - applicant ordered to pay respondent's costs as agreed or assessed.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Kempsey Shire Council v Tebran Pty Limited [2007] NSWLEC 731

DATES OF HEARING: 1 February 2008

EX TEMPORE JUDGMENT DATE : 1 February 2008

APPLICANT Mr G Underwood SOLICITORS Cooney Harvey Doney LEGAL REPRESENTATIVES:

RESPONDENT Mr I J Hemmings SOLICITORS Thorntons

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Jagot J

1 February 2008

40413 of 2007

KEMPSEY SHIRE COUNCIL Applicant

TEBRAN PTY LIMITED Respondent

JUDGMENT Jagot J: 1 On 8 November 2007 I delivered my principal reasons in the matter of Kempsey Shire Council v Tebran Pty Limited [2007] NSWLEC 731. In those proceedings the Council had sought certain declarations and orders to the effect that Tebran was carrying out development in breach of the applicable environmental planning instrument and, thereby, in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979.

2 However, I accepted the arguments of the respondent that, on the proper construction of the environmental planning instrument, the activities that were admitted to be carried out on the land in fact were permissible without development consent. Accordingly, I made orders as set out in [54] of my principal reasons to the effect that the Class 4 application be dismissed as well as an order that the applicant pay the respondent's costs as agreed or assessed. I stayed the costs order to give the Council an opportunity to consider whether it wished to be heard in relation to costs (in which event the costs order was set aside).

3 As it turns out the Council did wish to be heard in relation to costs and has come before the Court today arguing that there should be no order for costs of the proceedings. The Council so submits based on a limited set of circumstances. In effect what the Council says is that from about 26 October 2006 to 30 April 2007 or thereabouts, the parties proceeded on a common assumption that development consent was required for the activities (and indeed two development applications were lodged on 15 May 2007). In the event, the Council officer responsible for assessing the development applications recommended refusal of the development applications and thereafter they were withdrawn. A few days after the development applications were withdrawn the Court fixed the proceedings for hearing. The Council says that this is a relevant circumstance to the costs discretion, and also relies on the following two matters. First, according to the Council, the respondent's points of defence of 15 June 2007 did not disclose the legal argument which was subsequently advanced by the respondent in its written submissions. Secondly, although the respondent required three deponents of the affidavits on behalf of the Council for cross-examination, as it turned out on the day of the hearing, there was no substantive cross-examination of any of the deponents.

4 Both parties have helpfully provided short written submissions which I have considered. I do not propose to repeat all of the matters set out therein. The parties agree that costs are in the discretion of the Court. There is no dispute that, in the ordinary course, the compensatory principle operates so that costs should follow the event absent some other circumstances making it just to make a contrary order.

5 Having looked at the file, my reasons for decision and the written submissions, and heard from the parties today, I am satisfied that the mere fact of lodgement of the development applications should not be characterised in this case as any form of admission on behalf of the respondent that the Council's legal position about the operation of the relevant environmental planning instrument was correct. It is common in Class 4 proceedings of this nature for respondents to seek to avoid the necessity for any legal debate by lodging development applications to see whether development consent can be obtained. I do not see the fact of lodgement or withdrawal of the development applications as being a particularly material factor in relation to the costs discretion in this case.

6 The respondent's points of defence in paras 13 and 14 disclose the matters on which the respondent in fact relied at the hearing. Those paragraphs set out the argument that was advanced on behalf of the respondent and which I ultimately accepted (that the development was permissible without development consent). It is not clear to me what further information the respondent could have put in the points of defence to make its position more apparent than that contained in paras 13 and 14.

7 It is true that during the proceedings some of the affidavit evidence became redundant and that the deponents of those affidavits were not cross-examined. But the reason for this was that I invited the parties to reconsider the way in which they were approaching the matter and to ascertain whether they could reach some agreement on all of the relevant facts. That was done. It was done appropriately by both parties. It meant that the hearing in fact took a shorter time than would otherwise be the case.

8 None of the circumstances to which the Council has referred in its oral or written submissions should displace the ordinary principle that the respondent is entitled to be compensated in relation to these proceedings (being proceedings in which the respondent was wholly successful, leading to the dismissal of the Class 4 application on 8 November 2007).

9 Accordingly, I propose to make an order that the applicant is to pay the respondent's costs as agreed or assessed including the costs of today, so I will make that order now formally. (1) The applicant is to pay the respondent's costs of the proceedings (including the costs of the hearing on 1 February 2008), as agreed or assessed. ****************************

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.