Miltonbrook Pty Limited v. Kiama Municipal Council [1998] NSWLEC 127

Land and Environment Court of New South Wales

CITATION : Miltonbrook Pty Limited v. Kiama Municipal Council [1998] NSWLEC 127 APPLICANT Miltonbrook Pty Ltd PARTIES : RESPONDENT Kiama Municipal Council FILE NUMBER(S) : 10259 of 1998 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: s.102 Environmental Planning and Assessment Act 1979 Leatch v National Parks and Wildlife Service (1993) 81LGERA 270; CASES CITED: Raiti v Leichhardt Municipal Council (1991) 72LGRA 333 ; Progress and Securities Pty Ltd v. North Sydney Council (1988) 66LGRA 236; Seaforth Services Pty Ltd v. Byron Shire Council (1991) 72LGRA 44. DATES OF HEARING: 23/10/98 DATE OF JUDGMENT: 11/11/1998

APPLICANT Mr P. Tomasetti, Barrister LEGAL REPRESENTATIVES: RESPONDENT Mrs J.C. Kelly, Barrister Morton and Harris

JUDGMENT: By its Notice of Motion dated 24 July 1998, the Applicant seeks an order that the Respondent (the Council) pay the costs of the proceedings which involved a successful appeal by the Applicant pursuant to s.102(5) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the Council's determination refusing the Applicant's application to modify a development consent.

The Applicant's Motion was filed within 14 days of the decision of Assessor Hussey upholding the Applicant's appeal, as required by paragraph 10 of the Court's Current Practice Direction.

That paragraph provides, inter alia, as follows:

"The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional."

The reasons for Assessor Hussey's decision were published on 16 July 1998. They are self-evidently comprehensive and need to be considered in their entirety. The Applicant's claim to costs in the proceedings depends heavily, if not entirely, upon those reasons. In support of the costs claim, Counsel for the Applicant has provided a very comprehensive and helpful written document enumerating the circumstances relied upon as constituting relevant "exceptional circumstances" justifying the making of the costs order sought. Again, I shall not attempt to summarise the contents of this submission. Instead, I refer to the whole submission a copy of which is annexed hereto.

Before considering the competing cases advanced on the Motion I should briefly refer to the litigation (and its background) culminating in Assessor Hussey's decision.

As I have earlier noted, the proceedings involved an appeal against the Council's refusal of the Applicant's modification application pursuant to s.102 of the EP&A Act.

That application had sought a modification of a development consent that had been granted by the Council on 10 February 1997 to a development application made on behalf of the Applicant for the subdivision of land at Clover Hill in the Jamberoo Valley creating four rural residential lots and altering the boundaries of another lot comprising an existing dairy farm. The consent was granted subject to a number of conditions, including the following:

"16. A s.88B Instrument shall be prepared under the Conveyancing Act and shall contain the following matters--

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(b) the keeping of cats, dogs (other than working dogs) and goats shall be prohibited."

Pursuant to that development consent, the land was subsequently subdivided by virtue of the registration of Deposited Plan 875647 on 2 April 1998 comprising the following five lots, having the following areas respectively:

lot 100 121.3 ha

lot 101 2 ha

lot 102 5,206 m2

lot 103 10 ha

lot 104 4,000 m2

The registration of DP 875647 also created a number of easements and restrictions on user pursuant to s.88B of the Conveyancing Act 1919.

Those restrictions on user include the following (burdening lots 101, 102, 103 and 104) and which nominated the Council as the "Authority benefited":

"No cats, dogs or goats can be brought on or kept on any lot."

On 4 February 1998, the Applicant applied to the Council, pursuant to s.102 of the EP&A Act to modify the development consent by deleting condition 16(f) and by substituting the following condition:

"a. the keeping of cats and goats shall be prohibited on Lots 101, 102, 103 and 104;

b. the keeping of working dogs and cats shall be permitted on Lot 100 but goats shall be prohibited;

c. the keeping of dogs shall not be permitted on Lots 101, 102, 103 and 104 unless

- they are restrained within the building envelope of each lot burdened during the hours between sunset and sunrise of each day;

- they are accompanied by a responsible person during daylight hours; and

-they are leashed or otherwise suitably restrained whilst outside each lot burdened or when the occupants of the allotments are not at home."

The application was supported by a letter from the Applicant and a letter from the Irvine Sisters (who own and operate the dairy located on lot 100). The Applicant's letter indicated that although there was significant marketplace interest in the rural residential lots, most prospective purchasers were deterred by the prohibition on the keeping of dogs. It referred to two other cases (one involving land owned by the Council) where the Council had lifted the absolute ban on the keeping of dogs. It noted that all other land owners in the area have dogs and cats and that the proposed relaxation of the absolute ban on the keeping of dogs "would have no effect on the fauna in the area."

The modification application was the subject of a report prepared by the Council's Director Environmental Services which Report referred to two recent cases where the Council had imposed similar bans on the keeping of dogs but noted that the present case could be distinguished from those two cases by virtue the fact that the current proposal involved proposed dwellings to be located in cleared sections of the approved lots themselves surrounded by further clearings, whereas the other two cases had involved dwelling locations in cleared areas but where they were surrounded by vegetated areas. The report also noted that in the ecological report prepared by Dr Kevin Mills (which had accompanied the development application which was granted the aforesaid conditional development consent for the subdivision) there had been no specific recommendation for the exclusion of cats and dogs from the approved rural residential lots.

The Report went on to recommend approval being granted to the modification application, subject to a further condition limiting to 14 specified breeds of dogs (being a list of breeds suggested by the Applicant on advice from a veterinarian that they "could be considered suitable for rural residential living and which show minimal threat to native fauna").

The Council rejected that recommendation. Instead, it refused the modification application for the following stated reason:

"As the original condition (f) reflected (and still reflects) Council's concern about the cumulative impact of such developments on bio-diversity."

At the hearing of the appeal, the Council called two expert witnesses in support of its case in opposition of the modification application and the Applicant called one expert witness. Assessor Hussey's judgment discusses the competing cases conducted on the appeal including his findings on the competing expert evidence.

It was submitted on behalf of the Council that Assessor Hussey's judgment in upholding the appeal indicated no more than a conventional outcome of a court faced with competing expert evidence, preferring the evidence of one expert over the evidence of the other. Such an outcome in litigation, it may be generally accepted, would not constitute "exceptional circumstances" justifying a departure from the Court's usual practice of not awarding costs in class 1 proceedings.

In support of such an appreciation of the Assessor's adjudication, Counsel for the Council took me to the detail of the expert evidence that had been advanced in support of the Council's case. This somewhat unusual course in proceedings such as the present, was adopted, I assume, to show that the competing expert evidence relied upon by the Council was both substantial and significant and credibly justified the decisions taken by the Council (i) to refuse the modification application; and (ii) to defend the appeal proceedings.

Although the evaluation of the competing cases (including in particular the competing expert evidence) was a matter entirely for the Assessor, it appears to me to be relevant to my adjudication on the Applicant's claim to costs based upon the "exceptional circumstances" ground in the Court's Practice Direction, to consider whether the expert evidence relied upon by the Council in the appeal proceedings was both credible and substantial and significant. In saying this, of course, there can be no suggestion in the present proceedings that Assessor Hussey's factual findings are open to review in any manner whatsoever.

Rather, in circumstances such as the present where those factual findings do not in terms indicate any evaluation of the Council's evidence as lacking in credibility or in substance, it appears to me to be a legitimate forensic purpose and end, for the Council to invite me to examine the nature of the expert evidence upon which it had relied to satisfy myself whether it is credible and substantial and significant evidence supporting the Council's case.

So regarded, I would accept that the expert evidence relied upon by the Council was both credible and substantial and significant. I do not propose to discuss that conclusion in any depth save to say that it is obvious that the Council's experts were relying heavily upon the precautionary principle to support the opinions they had proffered. The "precautionary principle" has been applied by this Court--see in particular the decision of Stein J in Leatch v National Parks and Wildlife Service (1993) 81LGERA 270 especially at 281 and 282. It has adopted by environmental legislation--e.g. s.6 of the Protection of the Environment Administration Act 1991. It has been adopted by local government legislation e.g. s.8(1) of the Local Government Act 1993 and the Dictionary to that Act in the definition of "principles of ecologically sustainable development". See also the Article by Charmian Barton in Vol. 22 of the Harvard Environmental Law Journal at 509--"The Status of the Precautionary Principle in Australia: Its Em ergence in Legislation and as a Common Law Doctrine"."

It is clear from his reasons for judgment that Assessor Hussey did not accept the application to the facts of the present case of the "precautionary principle". His reasons for so concluding appear to be:

(i.) the absence of evidence of fauna surveys of lands contained within the "high conservation" zone; and

(ii.) the absence of evidence that predation by dogs of native fauna was a problem in the Jamberoo Valley.

However that may be, it is to be noted the precautionary principle operates on the basis of "threats of serious or irreversible environmental damage"....in circumstances where there is a "lack of full scientific certainty".

That is not to say that the precautionary principle is founded on a whim or a chance. Rather, it is founded on a "threat" of serious environmental circumstances in cases where there is no "full scientific certainty".

It is, I believe, sufficient for me to say that whereas the decision reached by Assessor Hussey concerning the precautionary principle was perfectly open to him, a different conclusion on that issue was also realistically open.

There are two other related aspects of Assessor Hussey's judgment upon which the Applicant principally relies, which I believe should be explored. These are his findings (i) that the Council's decision reflected an "across the board" wholesale application of its Biodiversity Policy instead of a selective application to the appeal site in particular (or Jamberoo Valley) based upon local investigation justifying that selective application and (ii) that the application of the Council's Biodiversity Policy operated in a discriminatory fashion vis a vis the Applicant compared with the great majority of neighbouring land owners/occupiers who kept dogs and cats on their properties.

Again, with respect, I would conclude that whereas these findings were perfectly open to Assessor Hussey, different findings were also open and available.

I so conclude, principally for the reason that the implementation of any new policy in an existing situation will inevitably create a division between cases decided when the policy was not in force and those decided by reference to the new policy. To take an example, removed from the planning environment, if sales tax on new motor vehicles is radically reduced, later purchasers may enjoy the benefit of corresponding reduced prices compared with purchasers who have purchased when sales tax was higher. This would not normally be regarded as unfair discrimination. Similarly with new planning policies, they may either relax or tighten existing planning controls which have been applied to existing situations. Again, it is difficult to describe this consequence of the adoption and implementation of the new policy as involving "unfair discrimination".

Moreover, I do not think that aspect of the Council's Biodiversity Policy restricting the keeping of dogs was ever intended to apply "across the board". Rather (and I am here referring to Chapter 5 "Introduced Animal Management" of the Council's Biodiversity Policy) it is expressed to apply to minimise impacts on "wildlife and wildlife habitat areas in Kiama, particularly areas of High Conservation Value...." The appeal site involved areas of High Conservation Value. Although it is obvious that the approved development was modest in scale and correspondingly modest in environmental impact, those facts did not in themselves negate the application of the Policy. Nor is it to be forgotten that the Council was concerned with cumulative environmental impacts.

Having carefully considered the Assessor's judgment and each of the circumstances relied upon by the Applicant to show "exceptional circumstances" I have not been persuaded that exceptional circumstances have been demonstrated either in relation to the Council's decision to refuse to grant the Applicant's modification application or in relation to the Council's decision to defend the appeal.

Although I am left in no doubt that Assessor Hussey was firmly (and perhaps even emphatically) of the view that `the Council had not demonstrated that this modified condition 16(f) is unreasonable in the circumstances of this case" (p.9 of his judgment) I do not read his judgment as indicating that the Council's case lacked substance or was hopeless or doomed to failure etc.

This impression I have formed is reinforced by my own consideration of the nature of the case advanced by the Council, and particularly the reliance placed upon "the precautionary principle" by the Council's two expert witnesses.

The present case, in my opinion, comes nowhere near the case of Raiti v Leichhardt Municipal Council (1991) 72LGRA 333 where Hemmings J held the council had not properly discharged its duty under s.90 of the EP&A Act and had continued to resist the appeal "...merely going through the motions..." (at 335/6). Nor is it to be overlooked that the Applicant was seeking to modify a development consent that it had accepted and implemented. In a practical sense, it had the onus of justifying the modification sought to that development consent cf. Progress and Securities Pty Ltd v. North Sydney Council (1988) 66LGRA 236 and Seaforth Services Pty Ltd v. Byron Shire Council (1991) 72LGRA 44.

For these reasons I would hold that no exceptional circumstances have been demonstrated such as would justify a departure from the Court's usual practice in relation to costs in class 1 proceedings. Accordingly, I order that the Applicant's Notice of Motion be dismissed. The exhibits may be returned.

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.