Land and Environment Court of New South Wales CITATION : Oosthuizen v Sutherland Shire Council [2001] NSWLEC 137 APPLICANT Oosthuizen PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10236 of 2001 CORAM: Cowdroy J KEY ISSUES: Costs :- class one proceedings - application for costs order or alternatively costs in respect of one issue - whether issue was unreasonably pursued by council - issue supported by expert evidence - conduct of council justified - no exceptional circumstances - no order for costs LEGISLATION CITED: Land and Environment Court Act 1979 s 69 Practice Direction 1993 Berk v Woollahra Municipal Council [No 2] (1992) 78 LGERA 180; Cretazzo v Lombardi (1975) 13 SASR 4; CASES CITED: Hughes v Western Australian Cricket Association (Inc.) (1986) 8 ATPR 40-478; Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; McDonald Industries Limited v Sydney City Council (1979-81) LGRA 428; Oshlack v Richmond River Council (1998) 193 CLR 72 DATES OF HEARING: 25/06/01 DATE OF JUDGMENT: 07/19/2001 APPLICANT Mr P Tomasetti (Barrister) SOLICITORS Gregory J Halpin LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan (Barrister) SOLICITORS Sutherland Shire Council JUDGMENT: IN THE LAND AND MATTER No. 10236 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 19/7/01 Ardea Oosthuizen Applicant v Sutherland Shire Council Respondent JUDGMENT 1. By notice of motion dated 10 April 2001 the applicant seeks an order that the Sutherland Shire Council ("the council") pay its costs of the proceedings or alternatively that the council pay the applicant costs in relation to one issue ("issue eight") of the Amended Statement of Issues filed on 20 July 2000 in the proceedings. 2. On 6 May 1999 the applicant submitted development application DA993136 ("the application") to the council for a cluster housing development at No 672-674 Port Hacking Road Dolans Bay ("the site"). On 6 December 1999 a council officer prepared a report in which he recommended approval of the application. However approval was refused on 13 March 2000 and on 17 March 2000 the applicant instituted class one proceedings in this Court. 3. The matter was set down for hearing on 26 July 2000. On 13 July 2000 the hearing date was vacated because the council's solicitor formed the opinion that the matter was not ready for hearing and because of a foreshadowed amendment by the applicant to its plans. 4. On 20 July 2000 an amended statement of issues was prepared by the council. Such statement eliminated certain issues that had been indicated as relevant but included, as a new issue, issue eight which stated:- 8. Unacceptable loss of potentially significant fauna due to loss of habitat. 5. On 1 August 2000 Mr Nicholas Skelton, a flora and fauna expert retained by council, prepared a report in which he referred to a visit to the site on 26 July 2000. He reported that using an 'Anabat ultrasonic bat call detector' he was able to record certain bat calls on the site. The species could not be determined and the results were inconclusive. Mr Skelton found no evidence of bats roosting on the site but recommended that further call recordings be made to determine whether the site was inhabited by a threatened species of bat. He suggested that if the test proved that there might be a significant impact to a threatened species, the application should be changed or a species impact statement be provided. Mr Skelton's report also indicated the presence of a vulnerable native species of flora known as Syzygium paniculatum (or Magenta Lillypilly) on the site. 6. By letter dated 28 July 2000 the applicant's solicitor wrote to the council's solicitor requesting particulars of issue eight. By letter dated 28 July 2000 the council's solicitor replied inter alia as follows:- Our fauna expert has advised that ultrasonic calls from a microbat have been detected on the site. Further, a small tree of the species Syzygium paniculatum (Magenta Lillypilly) (a species identified as threatened under the Threatened Species Conservation Act) was identified. Considering such response inadequate, the applicant's solicitor protested by letter also dated 28 July 2000 pointing out that when new hearing dates had been fixed on 13 July 2000 issue eight had not been foreshadowed. 7. The report of Nicholas Skelton was received by the applicant's solicitor on 1 August 2000. A report prepared by another expert retained by council, namely Mr Glenn Alexander Hoy, was subsequently provided to the applicant on 3 August 2000. On the ensuing day tape recordings of bat sounds made on the site were also provided to the applicant. 8. As a result of this additional evidence the applicant engaged an environmental consultant namely Mr F Dominic Fanning to prepare a report at short notice. He considered that the application was unlikely to have a significant effect on threatened species on the site, namely Microchroachiropteran bats. Further, in respect of the threatened flora he observed that the specimen of Magenta Lillypilly was an introduced species as part of the landscaping on the site. Mr Fanning said that the Magenta Lillypilly was regularly used in gardens and horticultural landscapes in Sydney. 9. The hearing of the appeal took place before Commissioners Bly and Murrell on 8, 9, 10, 11 and 18 August 2000. In their judgment the Commissioners determined that the appeal should be upheld subject to conditions. 10. As to issue eight of the amended statement of issues the Commissioners found that the Magenta Lillypilly, if planted afresh, would thrive on the site and that the species would not be threatened with the planting of more specimens propagated from local genetic stock. As to the threatened fauna, the Commissioners noted that there was no evidence of the site being a known habitat for bats and that there was 'no real impact' on the 'large Bent Wing Bat' from the application. When Mr Skelton visited the site he had not positively identified any of the five species of bats although there had been a sighting of the Bent Wing Bat in the Royal National Park nearby. 11. The Commissioners observed that the issue of a species impact statement had only been obliquely referred to in the statement of issues but that 'the respondent pursued the matter with some vigour' during the hearing. Applicant's submissions 12. The applicant submits that issue eight was devoid of merit and should never have been pursued. Further the applicant submits that when analysed, the content of the reports show no valid basis for the allegations that the application was likely to impact adversely upon fauna or flora. 13. The council submits that issue eight was properly raised in view of the expert opinions it had received. It also says that at the hearing the applicant did not oppose the council relying upon issue eight. Costs 14. The Court has an unfettered discretion to award costs pursuant to s 69(2) of the Land and Environment Court Act 1979 ("the LEC Act") which relevantly provides:- (2) Subject to the Rules and subject to any other Act - (a) costs are in the discretion of the Court; (b) the Court may determine by whom and to what extent costs are to be paid; and… 15. The Practice Direction 1993 ("the Practice Direction") relevantly provides that in class one and class two applications:- The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional. 16. In Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78 Handley JA determined that the Practice Direction in relation to an application for costs could not inhibit the discretion of the Court conferred by s 69(2) of the LEC Act. 17. The Practice Direction originated from the traditional practice of the Local Government Appeals Tribunal which is followed in this Court. In McDonald Industries Limited v Sydney City Council (1979-81) 43 LGRA 428 McClelland CJ said at 445:- Under s 69 of the Land and Environment Court Act a discretion is conferred on the Court to award costs but the general rule established by the Local Government Appeals Tribunal that, in appeals from decisions of local councils the parties should meet their own costs is one that the Court proposes to adopt. I refer to it as a general rule because the Court would not want the conclusion to be drawn that there would never be an occasion on which costs would be awarded. Some exceptional circumstances would need to be established to attract an order for costs. Such principle was confirmed by Pearlman J in Berk v Woolhara Municipal Council [No 2] (1992-1993) 78 LGERA 180 at 184 wherein Her Honour said:- The Practice Direction does not lay down an inflexible guideline, but allows the Court to exercise its discretion to award costs in cases where it is appropriate to do so. It applies only in planning and building appeals in classes 1, 2 and 3 of the Court's jurisdiction (but not in classes 4 and 5, where costs ordinarily follow the event). It was brought into force to formulate a long-standing policy of the Court, based on a philosophy of encouraging parties to seek review rather than discouraging them by burdening them with the risk of an award of costs against them. I see no reason, in principle or authority, to depart from the practice. Her Honour confirmed the need to exercise an unfettered discretion when considering costs in any application as follows (at 184):- Nor should I be constrained to fit the facts of this case to the facts in previous decisions of this Court where costs have or have not been awarded. That would be to fetter the Court's discretion, which must remain unfettered, except that there may be a guideline or principle to assist the Court to exercise it, which the Practice Direction amounted to: cf Latoudis v Casey . Each case must be examined on its merits. 18. In summary, the power to award costs is absolute and unfettered and subject only to such power being exercised judicially (see Oshlack v Richmond River Council (1998) 193 CLR 72). The practice of this Court is that costs do not ordinarily follow the event in planning and building appeals unless there are 'exceptional circumstances' to warrant an order for costs. Findings 19. The applicant in effect seeks an apportionment in respect of issue eight. However apportionment of costs against a successful applicant should only be made in exceptional circumstances, otherwise the ultimate ends of justice might be prevented because a party is dissuaded by the risks of costs from canvassing all issues 'however doubtful' (see Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J; see also Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 per Toohey J). 20. It could not be said that the council acted unreasonably in pursuing issue eight in view of the expert advice it had received. The evidence was ultimately not accepted by the Commissioners but this does not lead to the conclusion that the conduct of the council in pursuing such matters, even with 'vigour', was unjustified. The Commissioners did not suggest that such issue should never have been raised. 21. In these circumstances the Court concludes that the conduct of the council was not unreasonable as alleged and that no exceptional circumstances exist to warrant a departure from the practice of this Court to make no order for costs in planning and building appeals. For these reasons the Court concludes that no order for costs should be made. Orders 22. The Court therefore orders that:- 1) The notice of motion be dismissed. 2) The exhibits be returned. 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