> Land and Environment Court of New South Wales CITATION : Hutchison 3G Australia Pty Ltd v Waverley Council [2003] NSWLEC 449 APPLICANT: Hutchison 3G Australia Pty Ltd PARTIES : RESPONDENT: Waverley Council FILE NUMBER(S) : 10441 of 2002 CORAM: Bignold J KEY ISSUES: Costs :- Costs in class 1 proceedings LEGISLATION CITED: CASES CITED: DATES OF HEARING: 06/02/2003 EX TEMPORE JUDGMENT DATE : 02/06/2003 APPLICANT: Mr A Whealy, Solicitor SOLICITORS PriceWaterhouse Coopers Legal LEGAL REPRESENTATIVES: RESPONDENT: Mr I Hemmings, Barrister SOLICITORS McMahon and Associates JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 6 February 2003 10441 of 2003 HUTCHISON 3G AUSTRALIA PTY LTD v WAVERLEY COUNCIL JUDGMENT HIS HONOUR 1. This is an application for costs in Class 1 proceedings which were commenced by the Applicant on 31 July 2002 against the refusal by the Council of a development application to carry out development on a property known as 50 Botany Street Waverley. The proceedings were commenced following an exchange of correspondence between the parties' Solicitors. 2. That correspondence arose in circumstances where the Applicant had on foot in the Court existing proceedings against the Council in respect of the Council's decision on the development application to which I have earlier referred. Not only were the proceedings on foot at the time but they had been allocated a hearing date some eight or nine days after the commencement of the Class 1 proceedings, that is, they were allocated for hearing on 9 August 2002. 3. In a letter from the Applicant's Solicitor dated 24 July 2002 (a week before the Class 1 proceeding was commenced) certain assertions were made as to whether or not the Council's resolutions in respect of the Applicant's development application relevantly had yielded a determination of the application by the grant of development consent. That was a principal matter in contention in the Class 4 proceedings. The Applicant's Solicitor's letter proceeds and I quote the last two paragraphs: Your client, that is the Council should therefore issue a notice of determination by Friday 26 July and it is suggested that the indemnity condition provision at the very least be worded such that allows the consent to be released. Then it stated: If this does not occur we will lodge a Class 1 appeal in the Land and Environment Court to seize the Court of jurisdiction to deal with the matter as if it were a deemed refusal of the development application. Further, a Motion will be filed at the same time to have such Class 1 application heard with the Class 4 proceedings. And then the final paragraph: These actions are suggested to avoid any confusion that your client's actions may have created. 4. The Council's Solicitor responded to that letter two days later by facsimile transmission dated 26 July 2002. It dealt with and answered a number of the assertions contained in the Applicant's Solicitor's letter but responding to the notice of proposed Class 1 proceedings being launched by the Applicant, the Council's Solicitors stated, and I quote: An appeal in Class 1 of the Court's jurisdiction has always been available to your client on the basis of the deemed refusal of the application and these Class 4 proceedings were clearly unnecessary. We invite you to discontinue these proceedings and we will rely upon this letter for the purpose of costs. 5. It should be noted that when filing the Class 1 application the Applicant also filed a Notice of Motion returnable on 6 August 2002 (ie three days before the allocated hearing day) for the Class 4 proceedings which sought an order inter alia that the hearing of both proceedings occur on 9 August 2002, that being a reference to the Class 4 proceedings due to be heard on 9 August 2002, together with the Class 1 proceedings filed on 31 July. 6. On the hearing of that Motion, the Court made the following orders. The claim that the hearings of the two proceedings be combined and be heard on 9 August 2002 was refused and liberty was granted to the Applicant to apply, if desired, for an urgent hearing of the Class 1 appeal at the conclusion of the hearing of the Class 4 proceedings on 9 August 2002. I do not understand any action to have been taken pursuant to that leave. 7. In the event the Class 4 proceeding was heard on 9 August 2002 and by his judgment delivered on 3 September 2002, Cowdroy J granted declaratory relief, a mandatory order requiring the Council to issue a Notice of Determination in the terms expressed in the order and ordered the Council to pay the Applicant's costs of the proceedings. 8. The two declarations that his Honour made were that the Council's resolution dated 26 February 2002 and I quote: With Condition 2 excised, condition 2 being the condition which purported to require the indemnification of the Council by the Applicant for the carrying out of the development constitutes a valid development consent pursuant to s 80 Environmental Planning and Assessment Act. 9. At that point of time, (ie 3 September 2002) it was obvious to everyone that there was no further utility in prosecuting the Class 1 proceedings because by its success in the Class 4 proceedings, the Applicant had obtained in effect the development consent that it had sought from the Council stripped of the condition requiring the Applicant to indemnify the Council in respect of the consequences of carrying out the approved development. 10. Mr Whealy, on behalf of the Applicant today has found that his application for costs, a costs order in favour of the Applicant upon the basis that the Class 1 proceedings were unnecessary or putting it another way, that in bringing the Class 1 proceedings, the Applicant had been put to unnecessary expense and that that unnecessary expense had been caused by the Council's position in relation to its resolutions in respect of the development application and the position that the Council unsuccessfully, as it turned out, has sought to maintain in the Class 4 proceedings before Cowdroy J. 11. In my opinion, the Applicant has not made good its claim for costs in the present proceedings. 12. The proceedings in truth had a very short life. They were commenced on 31 July 2002. They came before me as the Duty Judge on 6 August 2002 when the Applicant was seeking an order that the proceeding be heard together with the allocated Class 4 proceedings in three days time. As I've indicated, that application was refused for the obvious reason that it would be singularly unreasonable to expect the Council to prepare a case for a hearing on the merits on the development appeal within the two days remaining before the Class 4 proceedings were heard. 13. The only other occasion upon which they came before the Court was on 14 August 2002 when it was simply noted that the parties were awaiting judgment in the Class 4 proceeding. All subsequent callovers (and there have been many since his Honour's judgment) in the Class 4 proceedings have been devoted to the only outstanding question in the case, namely the question of costs. 14. In those circumstances, my findings on the evidence are these, that the Applicant for its own, no doubt good reasons commenced the Class 1 proceedings of its own Motion unconstrained by anything done or not done by the Council, no doubt for strategic and proper legal purposes, all concerned with the interest of the Applicant. 15. That the proceedings would have required a determination of the development application by the Court on the merits was really the last thing that the Applicant was seeking because its case in the Class 4 proceedings was that the Council had granted development consent and therefore undertaken the requisite consideration of the merits of the case and that the decision of the Council ought to be stripped of a condition which the company did not accept, namely that it provide indemnification to the Council in respect of the consequences of carrying out the development. 16. As we have noted in the Class 4 proceedings, the Applicant was successful in its contention that such a condition was beyond the power of the Council. 17. In these circumstances, to further order the Council to pay costs in the Class 1 proceedings in addition to the order for costs made against them in the Class 4 proceedings would be to impose an unreasonable impost on the Council for its conduct in the Class 1 proceedings for which it is entirely innocent. 18. The Applicant voluntarily brought the Class 1 proceedings no doubt as an insurance policy against its failure in the Class 4 case. That the risk ultimately vanished within a matter of five weeks with the delivery of the judgment of Justice Cowdroy on 3 September 2002 in the Class 4 proceedings and the insurance policy did not require to be cashed in. 19. In the circumstances I am satisfied that, conformably with the practice of the Court in relation to not ordering costs in Class 1 proceedings planning appeals save in exceptional circumstances, there is no justification to order costs against the Council in respect of these Class 1 proceedings which otherwise have been formally disposed of by leave being granted by consent to the discontinuance earlier today. 20. In truth, there was no life in the proceedings once the Applicant succeeded on 3 September 2002 in the Class 4 proceedings. For those reasons, the Applicant's Motion for costs is dismissed. HEMMINGS: In accordance with the Court's normal practice, I'd seek the costs of the Motion. HIS HONOUR: Thank you Mr Hemmings. Mr Whealy? Anything in opposition? WHEALY: No, I'd simply oppose that order. 21. Consequent upon my decision dismissing the Applicant's Motion for costs for the reasons that I've articulated, Counsel for the Council asks for costs of today's hearing on the basis that the application having been refused, the Council should be compensated for having to defend the Motion. It has become customary practice of the Court when hearing Motions for costs in class 1 planning appeals to make an order for costs against the party unsuccessfully claiming costs by way of exceptional circumstances in accordance with the Court's Practice Direction and practice in planning appeals. No reasons have been advanced as to why that prevailing practice ought not be applied in the present case. Accordingly, in ordering that the Applicant's Motion for costs be dismissed, I order that it be dismissed with costs in favour of the Council on the hearing of the Motion in sum agreed, or failing agreement as assessed. 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