Parkes v Byron Shire Council [2004] NSWLEC 722

Land and Environment Court of New South Wales

CITATION : Parkes v Byron Shire Council [2004] NSWLEC 722 PARTIES : John Parkes (Appl) Byron Shire Council (Resp) FILE NUMBER(S) : 11050/01; 10897 of 2001 CORAM: McClellan CJ Costs :- Class 1 proceedings Motion determining preliminary questions KEY ISSUES: Questions raised in the nature of ordinary litigation going to the permissibility of the development No questions of merit Quantification of costs sought LEGISLATION CITED: CASES CITED: Gee v Port Stephens Council (2003) 131 LGERA 325 DATES OF HEARING: 22 November 2004 EX TEMPORE 11/22/2004 JUDGMENT DATE :

J Kildea (Appl) Walkers (Solicitors - Appl) LEGAL REPRESENTATIVES: C J Leggat (Resp) Abbott Tout (Solicitors - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

MONDAY 22 NOVEMBER 2004

11050/01; 10897/01 PARKES v BYRON SHIRE COUNCIL

JUDGMENT 1 HIS HONOUR: There are two motions before the Court for orders for costs. The motions are brought in separate class one proceedings which relate to adjoining properties within the area of Byron Shire Council. The two applications were for consent to develop what was described as tourist facilities upon adjoining properties. 2 As I understand the position, commercial enterprises have been conducted on both properties for some time and there have been issues between the parties as to whether or not the existing activities were lawful. In part, the class one proceedings were made necessary because of the Council's concern that the existing enterprises were unlawful. 3 The proceedings have been infected by a multiplicity of motions both in relation to questions of adjournment and also in relation to separate questions which were identified going to the lawfulness of each application. 4 Both proceedings came before Lloyd J in relation to a motion raising a question of law as to the definition of "tourist facility" and accordingly, the permissibility of the applications as then defined. 5 His Honour determined both motions in favour of the Council, with the consequence that in proceedings 11050/01 the motion which had been brought by the applicant for development consent was dismissed, the question of costs reserved and the proceedings otherwise dismissed. 6 Although it is not clear from his Honour's judgment, I infer that the costs reserved were the costs of the motion rather than the costs of the whole proceedings. Not only do I infer this to be his Honour's determination, but it seems to me to accord with principle which I shall refer to in a moment. Apart from the costs of the motion, the application was properly brought as an application for merit review of the Council's decision in relation to the matter. 7 With respect to matter 10897/01, the applicant for development consent's motion was dismissed. The Council had also brought a motion which was dismissed, allowing the application for development consent to continue before a commissioner so that a determination on the merits could be made. 8 As I understand it, it was understood by the parties that following his Honour's determination, the application was prohibited, if properly described as "tourist facilities." However, it could be permitted if it met the description of "bed and breakfast" establishment. 9 His Honour indicated that the question of costs was reserved. Again I infer that his Honour was referring to the costs of the motion that his Honour had heard. 10 The parties are also at issue in relation to the costs of a motion brought before Cowdroy J seeking the adjournment of proceedings 10897/01. That application, although filed and brought before his Honour was not pursued, his Honour identifying it as being withdrawn. I understand that the application was brought in order to protect the applicant's commercial position having regard to a prospective sale of the property, and in order to suit its personal convenience the application was withdrawn. Council now seeks an order for costs in relation to that motion, his Honour having expressly reserved the question of costs. 11 In Gee v Port Stephens Council (2003) 131 LGERA 325 I identified the principles which to my mind are appropriate to the making of an order for costs in class one and two proceedings. Since my decision in that case, the Land and Environment Court Rules 1996 have been modified so that Pt 16 r 4(2) now provides: "No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable." 12 In Gee I said (at LGERA 339): "I have already indicated that there will be many cases in class 1 and 2 where it is appropriate that there be no order as to costs. In my opinion this is likely to be the case where the issues in dispute are confined to merit considerations. However, a different approach may be required where a preliminary question is raised. If it happens that the determination of the preliminary question will assist the commissioner who hears the merits of the matter by defining the content or limits on his or her discretion it is likely that no order for costs should be made. For example, the interpretation of provision of a local environmental plan containing height or floor space controls may be a circumstance where no order should be made. There will be others. However where the preliminary point raised is said to preclude consent at all, proceedings cease to have the character of merits review and different considerations arise." 13 Later in my reasons for judgment I said (at LGERA 340): "As I have indicated, in my opinion in circumstances where a council chooses to put in issue the capacity for approval either by raising a preliminary question of law or as here a preliminary question involving matters of both fact and law, the usual approach to costs in class 1 appeals is inappropriate. By raising the question of capacity to grant an approval the council raises matters appropriate for ordinary litigation, and seeks to avoid consideration of the merits of the application. In such a case, in my opinion, the usual order should be that costs follow the event." 14 The motions that were brought before Lloyd J in both cases raise the question of whether or not the application in the form as then advanced by the applicant for consent was permissible. Consistent with what I had to say in Gee, the questions raised were questions in the nature of ordinary litigation going to the permissibility of the development. The questions litigated before Lloyd J did not raise any question of the merits of the particular application. 15 In those circumstances I am satisfied that it is appropriate for an order for costs to be made. 16 Notwithstanding the submissions advanced by the applicant, Lloyd J determined that the application in the form advanced was not permissible. This allowed the applicant an opportunity to re-cast its application in matter 10897/01, but it accepted that this could not be done in relation to 11050/01 and accordingly, the applicant consented to that application being dismissed. 17 In my opinion, any order which is appropriate should be confined to the costs of the motions before Lloyd J. Nothing which I said in Gee should be understood as necessarily contemplating that an order should be made for the cost of the whole proceedings when a separate question is identified. Although there may be circumstances where a motion brought which determines preliminary questions should carry with it an order for costs which extends to the costs of the whole proceedings, I am not persuaded that that would be appropriate in the present case. 18 The applicant draws attention to the fact that the strength of the Council's case was enhanced by an amendment to the Byron Local Environmental Plan 1988 of which the applicant was given notice on 8 February 2003. It is said that accordingly, the applicant was placed in a position where it had to determine whether or not to pursue the application. 19 It is submitted that it was legitimate for a decision to be made to seek to pursue it by pressing the motion before Lloyd J. 20 In my opinion, whatever may have been the impact of the amendment, it is nevertheless appropriate for the applicant for development consent to pay the costs of the motion. 21 Notwithstanding the amendment, a decision was made to seek to pursue an argument in relation to the permissibility of the project before his Honour. That argument having failed, in my opinion an order for costs is appropriate. 22 With respect to the motion before Cowdroy J, I am of the opinion that the Council is entitled to an order for costs of that motion. The motion was brought by the applicant for consent to suit its own commercial purposes and the expense which the Council was put to was ultimately entirely wasted when the application was withdrawn. In those circumstances I am satisfied that it is fair and reasonable that an order for the costs of that motion to be made. 23 I have discussed with the parties the claim which the Council would make in money terms if an order for costs is made. A figure has been mentioned but, as I understand it, no attempt at detailed quantification has been made. 24 When a court makes an order for costs, in many cases, if the quantum of the order is not identified when the order is made, many further costs will be incurred in litigating over the quantum of those costs. In my opinion, that is an entirely inappropriate manner in which costs orders made by this Court should be quantified, except in exceptional cases. 25 In my opinion, in the ordinary case if a party seeks an order for costs it should be in a position to quantify the amount which it seeks so as to enable the opposing party to immediately respond as to reasonableness of the costs and thereby enable the court to make a decision which quantifies the sum which may be payable. 26 As I have determined in this case that orders for costs are appropriate, I will also proceed to determine the quantum. However, I will give the parties an opportunity to discuss between them an appropriate sum and, if possible, reach an agreement. If an agreement is not possible, I will invite the Council to indicate the sum it seeks and for the applicant for development consent to respond so that I can make an informed decision. 27 At this stage I merely indicate that in my opinion, it is appropriate that the Council have an order for the costs of the motion before Lloyd J in both proceedings and also an order for its costs of the motion before Cowdroy J. I will defer making formal orders until the parties have come before me in relation to the quantum, at which stage the formal orders including the identified sum will be made. 28 Council seeks an order for the costs of the motions brought before me today. That application is opposed, it being submitted that the Council has not achieved all which it sought in the motions, and it is also indicated from the bar table that perhaps if the Council had confined its application to the extent reflected in the orders which I have indicated will be made, these proceedings may have been unnecessary. 29 It is apparent that the Council has not achieved orders as broad as the motions advanced before this Court. However, it has succeeded in obtaining relevant orders for costs in both proceedings. 30 There is no evidence before me which suggests that the applicant for consent has previously made any offer to pay any part of the Council's costs. Accordingly, for the Council to have obtained the relief which I have determined to be appropriate, it was necessary to bring these proceedings before the Court. 31 In those circumstances I am satisfied that it is appropriate that the Council obtain an order for costs of the proceedings before me today and I will incorporate such an order in the ultimate orders which I make. **********