Land and Environment Court of New South Wales CITATION : Walker v Kempsey Shire Council and Anor. [2001] NSWLEC 84 APPLICANT: Walker PARTIES : RESPONDENTS: Kempsey Shire Council and Anor. FILE NUMBER(S) : 10853 of 2000 CORAM: Bignold J KEY ISSUES: Costs :- in class 1 proceedings disposed of by consent orders (save as to costs). No exceptional circumstances justifying departure from Practice Direction. Costs awarded in respect of hearing on costs LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 98 CASES CITED: Tenstat Chullora No 2 Trust v The Valuer General (2000) 110 LGERA 227; MacDonald v Mosman Council (No 2) 107 LGERA 211 DATES OF HEARING: 10 April 2001 EX TEMPORE JUDGMENT DATE : 04/10/2001 APPLICANT: Mr S Berveling, Solicitor SOLICITORS Abbott Tout FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr G E Underwood, Barrister SECOND RESPONDENT: Mr D Brigden, Solicitor SOLICITORS: FIRST RESPONDENT: Howard Sheridan Cooney Harvey SECOND RESPONDENT: Freehills JUDGMENT: IN THE LAND AND Matter No. 10853 of 2000 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 10 April 2001 ELLIS WALKER Applicant v KEMPSEY SHIRE COUNCIL First Respondent JOHN PHILLIPS Second Respondent JUDGMENT Bignold J: 1. There are before the Court two competing Motions claiming costs in class 1 proceedings which were settled and disposed of, save for the question of costs, by orders made by the Court by consent on 5 March 2001. The appeal proceedings comprise an Applicant appeal pursuant to the Environmental Planning and Assessment Act, s 98 filed in Court on 5 September 2000 appealing against a decision of the first Respondent, the Kempsey Shire Council, to grant development consent in accordance with its Notice of Determination notified to the second Respondent on 10 August 2000. 2. In support of his appeal the Applicant, through his Solicitors, filed in Court in November 2000 a Statement of Issues sought to be raised by the Applicant. These were three in number, the first one being the absence of the owner's consent in respect of access across land (not owned by the applicant for development consent). The second issue seems to have been related to the first issue, namely the absence of arrangements in place for the preservation and maintenance of a suitable access from lot 1321 to the existing public road. This appears to raise very much the same issue dealing with internal access arrangements to the land the subject of the development consent, that land being separated from the road frontage of the existing public road. The third issue was concerned with adverse impacts arising from the proposed development by dint of quarry traffic. (Accordingly, the issues raised legal questions and one issue raised town planning merit questions.) 3. The Applicant owns land in the vicinity of the development site. In the consent orders made by the Court on 5 March 2001, which had the effect of granting a deferred commencement development consent, deferred commencement conditions were imposed contemplating the construction of necessary internal road arrangements and the prior acquisition by the Council of necessary lands to achieve the internal road access contemplated by the deferred commencement condition. 4. Soon after the Statement of Issues was filed and served, the Solicitors for the second Respondent, by letter dated 13 December 2000, put forward a suggested solution to the case by way of the grant of a deferred commencement consent subject to a deferred commencement condition which would adequately deal with the question of access to the development site from the existing public road. Thus, as early as 13 December last year, the second Respondent's Solicitor had in fact drafted the suggested deferred commencement condition and it is to be noted that in the consent orders made by the Court on 5 March of this year the deferred commencement condition, originally sponsored by the second Respondent's Solicitor, has been substantially adopted by the parties as providing the agreed solution to the case. 5. The Applicant's claim for costs against the Respondents indiscriminately, as the argument has been developed, has focussed upon a claim against the Council, and the basis for that claim is that exceptional circumstances have been demonstrated in the present case concerning the conduct of the Council both prior to, and in the course of, the proceedings which is claimed to constitute "exceptional circumstances" within the established Court Practice in relation to costs in class 1 and 2 proceedings. In particular, the Applicant, being the Applicant, seeks to establish that the history of the Council's dealings with the development application reveals some contrariety, or contradiction of position, and as such this constitutes relevant "exceptional circumstances". 6. The evidence before the Court of the Council's dealing with the matters is very brief and is not very comprehensive. However, it does indicate that the development application which was ultimately approved by the Council on 10 August 2000 had been before the Council for more than three years (having been lodged in June 1997). More than two years later, whilst the application remained undetermined, the Council on 7 September 1999 passed a resolution to take all necessary steps to provide legal access to the development site and other land in the hinterland, I shall call it from the public road Belmore River Road. 7. On 14 March 2000 the Council passed a further resolution in following terms "that the Council agree to issue a deferred commencement consent for the proposed development subject to the construction of the proposed access road to nominated lots and other conditions as required by the Council." 8. The evidence in the case does not reveal what happened with the Council's resolution of 7 September 1999 in terms of implementation. Nor does the evidence in the case indicate with any precision what happened in relation to the Council's resolution of 14 March 2000. But clearly, the evidence reveals that on 10 August 2000, the Council issued its Notice of Determination of the development application by granting development consent. 9. The attempt to drive a wedge (revealing contrariety or contradiction in decision-making) between the Council's earlier resolution and the decision issued by the Council on 10 August 2000, in my opinion fails. It fails for factual reasons inasmuch as there is no suggestion in the notice of determination that the decision of the Council to grant development consent, subject to conditions in that case, derives from the decision of 14 March 2000. The Applicant's attempt to establish contrariety in the Council's decision-making as the basis for demonstrating exceptional circumstances simply does not get off the ground. In terms, the Notice of Determination indicates that the determination was made on 10 August 2000. In the absence of evidence as to the existence of an appropriate authorising resolution or requisite delegation, the Court must apply the presumption of regularity and find that the consent issued on 10 August 2000 was regular on its face and there simply is no basis in seeking to impugn it, based upon the resolution of the Council passed on 14 March 2000. 10. In short, I am not satisfied that any contrariety in decision-making by the Council has been demonstrated. On the contrary the evidence provided by the Notice of the Determination invites, if not necessitates, the drawing of the inference, aided by the presumption of regularity, that the consent issued on that occasion was regular and valid. 11. Accordingly, no exceptional circumstances in relation to the Council's decision-making has been demonstrated by the Applicant. 12. The suggestion that the Council's conduct in the course of the case, once the litigation had been commenced, somehow or other constitutes exceptional circumstances in my opinion also fails. It fails when considered in isolation and it fails even when considered in conjunction with the allegation of misconduct in terms of the multiplicity of resolutions that the Council may have passed in relation to this development application. My consideration of the history of the litigation leads me to the following findings— (i.) the suggestion for settlement that fell from the second Respondent's Solicitor was self-evidently meritorious and was ultimately vindicated by the consent orders made on 5 March 2001; (ii.) no demur was ever raised by the Applicant to the matter being so settled; (iii.) that the parties were able to settle the matter without a hearing on the merits is a matter of credit and not a matter of demerit on the question of costs; and (iv.) the Council's participation in those settlement negotiations incurs no adverse comment, on the contrary, the Council must be taken to have acted responsibly in participating in those discussions and settlement arrangements which brought the matter to completion by the Court making consent orders on 5 March 2001. 13. Accordingly, I am satisfied that no exceptional circumstances have been demonstrated against the Council either in respect of its decision-making processes relevant in this case or in respect of its conduct in the litigation. 14. Moreover, the suggestion that the Applicant has been successful in the litigation as resolved by the consent orders is not, in my opinion, sustainable. The suggestion seemed to fall from the Applicant's Solicitor that, because deferred commencement consent was granted ultimately by the consent orders, somehow or other that is to be traced back to the Council's earlier decision and vindicates the Applicant in taking the stand that the Council should have adhered to its decision on 14 March 2000. However that argument, as I hope I have already demonstrated, completely fails to come to terms with the fact the Council issued the regular consent on 10 August 2000 without reference to the earlier resolution, and I draw no adverse inference from that plain fact. On the contrary I apply the presumption of regularity in finding that the development consent issued on 10 August 2000 was regular on its face. 15. Accordingly, there is simply no substance in the Applicant's claim that the settlement result achieved by the consent orders made on 5 March 2001 either vindicated his position in the proceedings or delivered him victory in the proceedings. I simply do not know how the parties to the litigation respectively regard the consent orders, but in my view it does not emerge with any clarity as to who was victorious other than to say that a victory was obtained by virtue of the good sense that prevailed in the settlement negotiations, because one inference that I do draw is that the solution in terms of a deferred commencement consent completely answered the issues that appeared to have been raised by the Applicant in the appeal as to the question of the validity of the consent by dint of the absence of his consent to access road arrangements, a position that once being presented with suggested solution, the Applicant readily accepted and readily abandoned his case in terms of the legal issues that he had earlier raised in the proceedings. 16. Accordingly, the result in the proceedings does not decisively indicate victory for the Applicant. Rather, it indicates that the parties agreed to a result whereby development consent was granted, albeit a deferred commencement consent. In these circumstances, the Applicant's claim against the Council has simply failed to demonstrate any "exceptional circumstances" which the Applicant concedes is the relevant standard or criterion to apply in the determination of his costs application. In those circumstances, the application against the Council fails and is dismissed. 17. No realistic claim could be, or has been, made against the second Respondent and, accordingly, the claim for costs against the second Respondent fails likewise. 18. This leaves consideration of the Council's claim for costs, which I see to be somewhat a defensive Motion rather than a Motion in its own right, but I must consider it for what it is. The fact that the Council has successfully resisted the Applicant's claim for costs of course does not automatically translate into a victory for the Council on its Motion for costs for it too must establish exceptional circumstances in accordance with the Court's established Practice as its Counsel freely conceded. 19. For the reasons that I have given in my analysis of the facts of the case, both before the litigation commenced and during the course of the litigation, I am not persuaded by the Council's submission that exceptional circumstances have been shown such as to warrant an award of costs in favour of the Council. It is true that the legal issues as to the apparent absence of owner's consent in respect of land which might form the passageway of the internal road system quickly dissipated upon the suggestion falling from the second Respondent of a solution by way of deferred commencement condition, but that of itself does not constitute exceptional circumstances. The legal issues raised by the Applicant in support of his objection (in addition to the merit issues which were never explored in the case and no evidence seems to have been garnered in that respect) simply has not been adjudicated upon and whether they were sound or unsound is not for me to comment upon. I have already indicated that the parties acted sensibly in resolving the matter in the way they collectively did. No exceptional circumstances exist such as to warrant a costs order in favour of the Council. 20. In my judgment, and for the foregoing reasons, both costs Motions are dismissed with no order as to costs in either. 21. Following the hearing of the two competing Motions for costs (that is the Applicant's application for costs against the Respondents and the Council's application for costs against the Applicant) both Motions being dismissed with no order as to costs, the Solicitor for the second Respondent has sought an order for costs on the Applicant's Motion by dint of his success in resisting the order for costs sought against him by the Applicant. The Applicant's application for costs was an order for costs against both Respondents, that is, the Council and the second Respondent and upon the opening of the case today, I inquired as to whether relief was claimed against the second Respondent by the Applicant and the Applicant answered affirmatively. As the case was argued, virtually no case was sought to be made, or was made, against the second Respondent, and the second Respondent has been entirely successful in resisting an order for costs that had been sought against him. 22. In those circumstances, and conformably to decisions of this Court where a motion for costs which is resisted and fails has led to an order for costs in favour of the successful party on the hearing of the costs Motion (and I refer to my recent decision in Tenstat Chullora No 2 Trust v The Valuer General (2000) 110 LGERA 227 and to the decision of Lloyd J in MacDonald v Mosman Council (No 2) 107 LGERA 211 where in each case costs were awarded on the disputed costs motion and where it was held that such costs were regarded as being not covered by the Court's Practice Direction, that is a Motion for costs in a planning appeal is not covered by the Court's Practice Direction), in the circumstances of this case, having regard to the outcome of the Motion for costs brought by the Applicant against both Respondents the second Respondent, having been entirely successful in his resistance of that order, should be entitled to his costs and I order the Applicant to pay the costs of the second Respondent on the Motion in the sum agreed, or failing agreement, as assessed. 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