> Land and Environment Court of New South Wales CITATION : Byron Shire Council v Archibald [2003] NSWLEC 48 revised - 4/03/2003 APPLICANT Byron Shire Council PARTIES : RESPONDENT Kevin Archibald FILE NUMBER(S) : 40109 of of 1999 CORAM: Cowdroy J KEY ISSUES: Costs :- consent orders - whether costs order should be made when proceedings are settled following negotiated agreement LEGISLATION CITED: Land and Environment Court Act 1979, s 69 CASES CITED: Oshlack v Richmond River Council 1998 193 CLR 72 DATES OF HEARING: 07/08/2002 EX TEMPORE JUDGMENT DATE : 08/07/2002 APPLICANT Mr A Hudson (Solicitor) SOLICITORS Wilshire Webb Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr J Atkin (Barrister) SOLICITORS Walters Solicitors JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40109 of 1999 Cowdroy J. 07/08/2002 BYRON SHIRE COUNCIL Applicant v KEVIN ARCHIBALD Respondent Judgment 1 In matter number 40109 of 1999 the Court notes that parties have been able to resolve their differences and have embodied their arrangement in the form of draft consent orders which have been produced to the Court today. The Court has considered the proposed declaration and orders and regards them as appropriate. 2 Accordingly, the Court makes declaration 1, 2, 3 and 4 of the document entitled Declarations and Orders which are initialled by me and dated today. The Court makes orders 1, 2, 3, 4, 5, 6, 7, 8 and 9 contained in the same document. The Court orders that the exhibits be returned. 3 The Court delivered its judgment on 13 December 2001 in which it made findings that the area of the respondent's quarry had increased beyond the area in respect of which any existing use rights applied. The Court also determined that there had been intensification of the use of the quarry as a result of the operation of crushing and screening equipment. 4 The proceedings have been adjourned since that time to allow the parties an opportunity to reach an agreement concerning the future operations of the quarry. Those negotiations have resulted in consent orders being made today. The only remaining issue is the question of costs. 5 Prima facie the council as a party which succeeded in obtaining declarations contained the Court's judgment delivered on 13 December 2001 should be entitled to an order for its costs. Such order would be granted on the principle that costs are intended to be compensatory: see Oshlack v Richmond River Council 1998 193 CLR 72. There is no question of punishment involved in an order for costs. Council now seek such order which is opposed by the respondent. 6 The respondent has submitted that certain issues raised during the hearing were not the subject of any adverse findings by the Court, namely the extent of the expansion of the quarry and the question of noise emanating from the quarry activities. 7 The respondent also submits that it has been the subject of special attention by the council which has not been paid to other quarry operators, including the council. 8 Whether there is any merit in the last submission cannot be determined. There is no evidence before the Court which would support such submission. Even if true, the Court is required to apply the law to the subject site, irrespective of any other site. 9 The history of the matter shows that the respondent was given a warning from the council in very clear terms that the quarry operations would require the submission of a development application to council. Such letter, which is dated 28 May 1999, was the precursor to the institution of any litigation. 10 No steps were taken by the respondent as a result of that letter and no development application was lodged. The respondents submit that they had previously prepared a management plan which was submitted to the council on 21 September 1998 and that no steps were taken by council until the letter of 28 May 1999. Such letter was written as a result of complaints arising out of the re-activation of the quarry at about that time. 11 In these circumstances, it is irrelevant that findings were not made in relation to noise nor the precise increase in area of the quarry. The Court found, as a fact, that the area of the quarry had increased and that there was an impact of noise caused by the screening and crushing from the new plant. 12 In the exercise of its discretion pursuant to s 69 of the Land and Environment Court Act 1979 the Court considers that an order for costs should be made in favour of the council against the respondent as a result of the findings contained in the judgment delivered on 13 December 2001. 13 The council seeks an order for its costs in respect of the negotiations that have continued since that date. The council was entitled to seek a restraining order in view of the Court's findings on 13 December 2001 but it chose not to do so. There have been several mentions before the Court and negotiations on both sides to reach the resolution which was embodied in the Court's declaration and orders today. The submission is made that council should not be penalised because it has attempted to co-operate with the respondents in reaching a final resolution. 14 Mr Atkin has made both written and oral submissions which have carefully dealt with the issue of costs. He opposes any order for costs being made from the date of the Court's judgment on 13 December. He submits that in view of the resolution reflected in the orders made today, the Court should treat this matter as a class 1 application and that no order for costs for that portion for the proceedings should be made. 15 Had the respondent filed a development application as originally sought, it is obvious that the cost of the litigation would have been avoided. It may also have resulted in the matter being dealt with outside of the Court system, thereby avoiding the involvement of lawyers and the attendant costs. However, that did not happen. For that reason, the Court will make the order that the respondent pay the costs of the hearing up to 13 December. 16 The subsequent negotiations have been conducted in the same manner as if a development application had been lodged. For that reason, the Court considers that the appropriate order for costs incurred since 13 December 2001 is that each party is to bear their own costs, except for the costs of the appearances at court. In respect of those costs, they are to be paid by the respondent. Orders 17 The Court orders that:- 1. The respondent pay the costs of the proceedings up to and including 13 December 2001. 2. As to costs incurred from 14 December 2001 to date, each party is to pay their own costs with the exception of the costs incurred by council in respect of court appearances during that period. The costs relating to the council's court appearance in this period are to be paid by the respondent. 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