Land and Environment Court of New South Wales CITATION: Robinson and Ors v Pittwater Council [1999] NSWLEC 200 PARTIES APPLICANTS: Robinson and Ors RESPONDENT: Pittwater Council NUMBER: 20128 of 199 CORAM: Talbot J Costs :- appeal pursuant to s 178 Local Government Act against decision to revoke an approval pursuant to s 109 KEY ISSUES: Costs:- Application of Practice Direction to proceedings not involving building or planning appeal Land and Environment Court Act s 69 LEGISLATION CITED: Land and Environment Court Practice Directon 10 DATES OF HEARING: 11/21/1998 EX TEMPORE JUDGMENT DATE: 11/26/1998 APPLICANTS: Mr P R Graham QC SOLICITORS: Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT: Ms S A Duggan (Barrister) SOLICITORS: Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND Matter No. 20128 of 1998 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 26 November 1998 John Robinson and Jennifer Robinson and Timothy Moon & Partners Pty Ltd Applicants v Pittwater Council Respondent EX TEMPORE REASONS FOR JUDGMENT ON COSTS 1. HIS HONOUR: These proceedings relate to an appeal pursuant to s 178 of the Local Government Act 1993 (the LG Act) against a decision by the respondent council to revoke an approval to the construction or erection of a building, pursuant to s 109 of the LG Act on the ground that the approval was obtained by misrepresentation. 2. Practice Direction 10 issued by the Chief Judge of the Court states that: The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional. 3. The historical background to the making of the Practice Direction needs to be understood for the purposes of making a determination in regard to the applicants' seeking an order for costs. In the course of the application Mr Graham QC has submitted that the Practice Direction should be regarded as being an invalid exercise of the Court's power. 4. The practice note is to put parties on notice that, in determining an application for costs in building and planning appeals, regard will be had to the peculiar nature of the proceedings. This practice has been recognised over a long period extending right back to the time when such appeals were heard by the Local Government Appeals Tribunal or the Land and Valuation Court. It was recognised as long ago as 1969 by Else-Mitchell J in Rio Pioneer Gravel Co Pty Limited v Warringah Shire Council (1969) 17 LGRA 153. There his Honour acknowledged the disinclination to saddle a council, (the relevant party in that particular case) with an appellant's costs, where the council, as the responsible authority under a planning scheme, had acted reasonably by refusing development consent in a novel or unusual case and then contesting the subsequent appeal. 5. The principle has been applied subsequently on many occasions in favour of both parties to an appeal. This Court and its predecessors has recognised that in merit appeals parties should feel free to appeal to the Court without the threat of having a costs order made against them, provided that their actions in so doing are responsible and based on some proper motive and reasonable grounds. 6. The Practice Direction is no more than notice that this Court proposes to follow that principle of practice by paying due regard to the nature of those proceedings, except in exceptional circumstances. 7. It is appropriate to note that the wording of the Practice Direction is specifically directed to building and planning appeals. When one has regard to the history of the practice which is reflected in the formal Practice Direction it is apparent that the intention is to cover those circumstances where the Court is called upon to re-hear an application made to a consent authority for an approval of some kind. 8. It is pertinent to note also that s 109 of the LG Act or any power akin to it has existed only since 1993. The Practice Direction pre-dates that power. The practice pre-dates it even further. 9. I am not satisfied that the Practice Direction is aimed at the type of appeal in these proceedings. Therefore it is not necessary for me to make a formal determination of the issue raised by Mr Graham in respect of the validity of the Practice Direction. I do say nevertheless that, having regard to the history referred to above and, the status of the Practice Direction as a non-binding provision, it cannot be regarded as a fetter on the Court's clear discretion provided in s 69 of the Land and Environment Court Act 1979. I find Mr Graham's argument unappealing. 10. Section 69(2)(a) places the determination of costs in the discretion of the Court. Section 69(2)(b) allows the Court to determine by whom and to what extent costs are to be paid. 11. Section 69(1)(b) expressly recognises the prospect that costs may be awarded following an appeal to the Court, such as the present proceedings. It provides for costs to include costs of or incidental to the proceedings giving rise to the appeal as well as the costs of or incidental to the appeal. 12. I am satisfied that in this case the Court has the normal discretionary power to determine whether a party is entitled to an order for costs. In an appeal under s 109 that power should be exercised judicially and on the basis that the party entitled to the costs order receives only an indemnity by way of compensation for legal expenses incurred. It is not an order intended to punish the respondent. It is compensatory in form and in substance. 13. I can see no distinction between an appeal under s 109 and any other litigation in the Court (apart from building and planning appeals) notwithstanding that in effect it is a re-hearing of the council's determination to revoke the existing approval. However, in my view such an appeal should be distinguished from the re-hearing of an application following a refusal of an application. What is involved in proceedings arising out of a decision made pursuant to s 109 is an abrogation of existing rights already created pursuant to a statutory power. The grounds for the decision are specifically identified in the section. 14. Accordingly I am brought to the point where the Court is required to determine whether the appellant is entitled to an order for costs in the exercise of the Court's discretion. 15. The hearing extended over many days. It was necessary for the Court to hear evidence and to adjudicate upon a number of hotly contested factual matters. There were many aspects of the case that required particular address, either as questions of law or in respect of the factual events which occurred. 16. However, by standing back and looking at the litigation and the real context of it, it becomes apparent that there was really only one issue. That issue was whether or not the approval obtained from the council was obtained by misrepresentation. The Court had to determine what type of misrepresentation was contemplated by s 109. On the way through, the appellant was successful on some issues. It is equally true that the council was successful on some issues, of fact and on parts of the legal argument. However I am unable to discern and separate out in a relevantly determinative way particular issues of fact or law which would entitle the Court to make an apportionment for the purposes of making a costs order which reflects the Court's determination of the various substratum of facts or legal issues that arose in the course of the proceedings. 17. It is not necessary for the Court to sit in judgment on the actions of the council, or what motivated the council to make the decision, in particular whether there were political or other pressures brought to bear by third parties. Nor is it necessary to be judgmental about the actions of the applicants except to the extent required to resolve the issue of whether there was relevantly a misrepresentation within the meaning of s 109. The latter has been done. Following the analysis set out in my reasons for judgment, published on 22 October 1998, it is clear that, after having regard to the whole of the facts and circumstances and the way in which s 109 should be construed for the purposes of these proceedings, I reached a conclusion that the council was in error. 18. I am satisfied therefore that the applicants have been successful in the proceedings. There being no particular or exceptional circumstances to persuade the Court to make an order other than an order for costs in favour of the successful party, I propose to make such an order. 19. The order of the Court is that the respondent pay the costs of the applicants in the proceedings. 20. GRAHAM: I wonder whether or not because of s 69(2)(c) where it's provided the Court may order costs to be assessed on one basis or another basis it's actually necessary for your Honour to nominate the basis. Curiously the section is expressed in a rather difficult way because Div 6 of Pt 11 both embraces party and party basis and indemnity. 21. HIS HONOUR: I'll make this observation, Mr Graham; there's been no submission made to me today in support of your notice of motion that costs be assessed on an indemnity basis, and accordingly it must follow that they are not to be assessed on an indemnity basis. I'll exclude that possibility so that you don't proceed along-- 22. GRAHAM: I knew your Honour didn't intend it, I just thought it should be clarified in the order. 23. HIS HONOUR: Yes, thank you. 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. 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