Kempsey Shire Council v Virell Pty Ltd [2001] NSWLEC 132

Land and Environment Court of New South Wales

CITATION : Kempsey Shire Council v Virell Pty Ltd [2001] NSWLEC 132 APPLICANT PARTIES : Kempsey Shire Council RESPONDENT Virell Pty Ltd FILE NUMBER(S) : 40195 of 1999 CORAM: Sheahan J KEY ISSUES: Costs :- class 4 proceedings - matters in dispute resolved on hearing date - no utility in proceedings - principles to be applied LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Beilby v Viney Pty Ltd [2000] NSWLEC 93; CASES CITED: Jan Yee Australia v Woollahra Council (26 March 1997) Bignold J; Thomson v Mosman Council & Anor [1999] NSWLEC 86 DATES OF HEARING: 17/05/2001 EX TEMPORE JUDGMENT DATE : 05/17/2001

APPLICANT Barrister Mr G E Underwood Solicitors LEGAL REPRESENTATIVES: Howard Sheridan Cooney Harvey RESPONDENT Solicitor Mr S Berveling Abbott Tout

JUDGMENT:

IN THE LAND AND Matter No: 40195 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 17 May 2001 KEMPSEY SHIRE COUNCIL Applicant v VIRELL PTY LTD Respondent JUDGMENT

1. The parties having reached agreement on the last of the substantive issues between them just as the hearing was to commence, the only issue remaining for the court today is the question of the costs of the proceedings.

The facts

2. The applicant Council granted development consent for a sand quarry on part of the subject land on 4 January 1993, and modified that consent on 29 April 1993 to include the balance of the land. Those approvals issued to a Mr Laut, and were subject to various conditions. At all relevant times the subject land was apparently owned by the respondent company, and that company, or its director, Mr Walker, took over the quarry operation from early October 1998, probably either 5 or 7 October.

3. These class 4 proceedings were commenced on 8 November 1999 to enforce compliance with various conditions.

4. On 11 October 2000 some class 1 proceedings brought by Mr Walker, who gave evidence in these proceedings this morning, were settled, as a result of which new conditions 3 and 11 attached to the already modified 1993 consent.

5. Condition 3 is at the heart of today's proceedings. It deals with cash contributions, and related volume reporting, concerning road upgrading. In amended form it required a statutory declaration within three months of 11 October 2000 (namely by 11 January 2001), and on 9 February 2001 the applicant amended its class 4 application to include an allegation of breach of condition 3, as well as of conditions 2, 5, 6, 8, 9, 11, 12, 14 and 16, in the primary prayers for relief (pars 1 and 2). Other combinations of the conditions, but not condition 3, are dealt with in pars 3 and 4 of the amended class 4 application.

6. The amended consent of 29 April 1993 bore a notation that failure to adhere strictly to various conditions prior to commencement of works, including condition 3, would result in legal action. It is noted also that there are 16 conditions on that amended consent; so, as at the filing, and later amendment, of the class 4 application, Council was alleging that the respondent was in breach of most conditions of its consent, but condition 3 was allegedly breached only, if at all, on or after 11 January 2001, well after the original class 4 application had been filed.

The proceedings

7. The issues between the current parties were resolved gradually over time, but condition 3 matters were finally resolved only today, to the mutual satisfaction of all concerned.

8. A key date in the resolution of many of the issues appears to be a negotiation meeting of some sort on 6 March 2001.

9. Today's hearing was appointed on 18 April 2001.

10. The filed affidavit evidence to which I was referred makes clear that sand extraction activities were occurring on 21 October 1998 and 25 November 1998. The Council alleged some disparity between activity and the reporting required by condition 3. The exhibits identify the details, and today the disparity has been agreed and the payment made.

11. There is no further utility in the proceedings.

Argument on costs

13. Mr Underwood asks the court to make the usual order that costs follow the event. The Council wanted its conditions of consent complied with and is now satisfied that the proceedings achieved that.

14. Mr Berveling says that that objective could, and should, have been achieved, by other means, and Council is not entitled to its costs. The proceedings were inappropriate and unnecessary. If any costs order is to be made it should be a "partial" one - limited to condition 3, and applying only to the costs incurred in respect of that condition on and after either 11 January 2001, when its alleged breach commenced, or 8 February 2001, when the class 4 application was amended.

15. In reply, Mr Underwood has taken the court to the correspondence regarding negotiations between the parties in 1998-99, prior to the commencement of the proceedings foreshadowed by the amended consent.

16. Condition 3 was the subject of that correspondence, along with the others which have or had been in dispute. Mr Walker in early November 1998 sought relaxation of Council's preferred timeframes, but agreed to comply with the contributions requirement, on and from 5 October 1998, the expiry date of Laut's lease (see annexure 'P' to Pitt's affidavit of 15 October 1999).

17. A revised timeframe was detailed on 30 November 1998 (Annexure 'S'), and the contributions agreement was acknowledged. Council made clear that, if the conditions were not complied with in timely fashion, Council officers would recommend Land and Environment Court proceedings. Urgent compliance was sought on 23 December 1998 (Annexure 'U'), and again proceedings were foreshadowed, seeking compliance, and, specifically, in terms, "an order as to costs".

18. Issues such as access appear to have remained in dispute, but, so far as compliance with conditions is concerned, Council specifically resolved upon a further revised timetable on 9 February 1999, and made clear that Land and Environment Court proceedings would be taken (see Annexure 'X'). On 8 March 1999 Mr Walker was told that outstanding issues had been referred to Council solicitors (see Annexure 'BB'), but that Council wanted to avoid legal action. The solicitors wrote to Mr Walker on 31 March 1999 indicating that if conditions were not completely satisfied within fourteen days thereof, proceedings would be instituted and costs sought (Annexure 'EE').

19. On 15 September 1999 (Annexure 'GG') Mr Walker was asked to pay the condition 3 contribution, which fell due on 16 August. This action was commenced on 8 November 1999.

Conclusion

20. Questions of costs in class 4 situations such as this are frequently dealt with by the judges of this court. I collected many of the relevant authorities in my judgment of 11 May 2000 in Beilby v Viney Pty Ltd [2000] NSWLEC 93 (at pars 42-62).

21. Coincidentally the argument in that case was like that of Mr Berveling today - the applicant should have adopted a different course. I declined to make an order on that occasion, but not for that reason.

22. I applied, as I often have, the test formulated by Bignold J in Jan Yee Australia v Woollahra Council (26 March 1997) that, in making a costs order, the trial judge should be satisfied that "the proceedings were justifiably commenced, justifiably continued, justifiably settled, and in all probability would have succeeded … had they been fully litigated".

23. At the risk of being accused of upholding my own decisions, I refer the parties also to my analysis and judgment in Thomson v Mosman Council & Anor [1999] NSWLEC 86.

24. I think the Jan Yee test has been satisfied in this case, and that the Council should have the benefit of the usual costs order.

25. The formal orders of the court will, therefore, be: 1. The amended class 4 application is, by consent, dismissed. 2. The respondent is ordered to pay the applicant's costs on a party-and-party basis. 3. The exhibits will be retained in the court file, except for Exhibit V3 which may be returned to the respondent.

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