Reported Decision : (2002) 120 LGERA 80 Land and Environment Court of New South Wales CITATION : Fast Buck$ & Anor v Dudley Pastoral Co Pty Ltd & Anor No. 2 (costs) [2002] NSWLEC 16 APPLICANTS Fast Buck$ and Anor FIRST RESPONDENT PARTIES : Dudley Pastoral Co Pty Ltd SECOND RESPONDENT Byron Shire Council FILE NUMBER(S) : 40064 of 2001 CORAM: Cowdroy J KEY ISSUES: Costs :- conduct disentitling a successful party to an order for costs LEGISLATION CITED: Land and Environment Court Act 1979 s 69 Fast Buck$ & Anor v Dudley Pastoral Co Pty Limited [2001] NSWLEC 183; CASES CITED: Hamill v Byron Shire Council & Anor (1998) 98 LGERA 400; Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72 DATES OF HEARING: 8/11/01; 22/02/02 DATE OF JUDGMENT: 03/14/2002 APPLICANTS In person SOLICITOR N/A FIRST RESPONDENT Mr J Maston (Barrister) LEGAL REPRESENTATIVES: SOLICITOR Wroth Wall Solicitor SECOND RESPONDENT Mr K Webber (Solicitor) SOLICITOR Wilshire Webb JUDGMENT: IN THE LAND AND MATTER No. 40064 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 14/03/02 Fast Buck$ & Terrence Hamill Applicants v Dudley Pastoral Company Pty Limited First Respondent Byron Shire Council Second Respondent JUDGMENT No. 2 (Costs) 1. In these proceedings judgment was delivered on 24 August 2001 in which the Court determined that the application be dismissed. By Notice of Motion filed on 28 September 2001 the first respondent moves the Court for an order that the applicants pay its costs of these proceedings. The second respondent seeks a similar order. Background 2. On 14 March 2000 Byron Shire Council ("the council") resolved that a condition ("condition C6") attached to the development consent ("the consent") granted by the council to the first respondent had been satisfied ("the resolution"). Condition C6 required a report to be submitted from a "suitably qualified person" concerning "the risk of land contamination due to past use of chemicals". A series of reports had been prepared by Mr Alan Kennedy ("the Tricend reports") in satisfaction condition C6 and were monitored by Mr Joseph Hogan, the Senior Environmental Assessment Officer of the council. 3. In the proceedings the applicants challenged the resolution on four principal grounds. The applicants asserted that the resolution was unreasonable either in the Wednesbury sense (see Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) or by operation of s 91(3B) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") (now s 80A(4) of the EP&A Act). The applicants also asserted that the resolution was void because the council acted in bad faith when passing the resolution. The applicants also asserted that condition C6 had not been satisfied because Mr Kennedy was not a "suitably qualified" person to prepare the reports. It was alleged that Mr Kennedy had a conflict of interest because he was associated with the first respondent. 4. In Fast Buck$ & Anor v Dudley Pastoral Co Pty Limited & Anor [2001] NSWLEC 183 the Court dismissed the claim of the applicants for judicial review. The Court held at [2001] NSWLEC 183 par [51] as follows:- Based upon the Tricend reports, Mr Hogan's knowledge of the site and Mr Kennedy's experience, council was entitled to regard condition C6 as having been satisfied. The resolution was made in the face of serious contention concerning alleged contamination of the site and litigation which was resolved in favour of the council. The evidence of the applicants does not establish that the council acted unreasonably in adopting the resolution . Costs: the usual rule 5. In Oshlack v Richmond River Council (1998) 193 CLR 72 Gaudron and Gummow JJ stated three propositions to assist the Court in determining a claim for costs made pursuant to s 69 of the Land and Environment Court Act 1979 ("the LEC Act") as follows at 87:- (i) that the court must determine the matter from the perspective of the successful party, (ii) that the successful party ordinarily should be compensated by the unsuccessful party for the expense of the litigation, and (iii) that the successful party will be deprived of costs only by disentitling conduct… (see also at 75 per Brennan CJ; at 97 per McHugh J; and at 120-123 per Kirby J). Accordingly a successful party is prima facie entitled to its costs in the absence of any disentitling conduct. 6. The applicants submit that they were drawn into the proceedings. In their submissions they claim that they were "hobbled from the outset by the inherent ambivalence of Mr Hogan's evidence given in the earlier hearing [see Hamill v Byron Shire Council [1998] NSWLEC 45; Bignold J] and by the resulting ambiguity of Judge Bignold's findings, and accordingly do not feel that they should incur the level of costs that [they] otherwise might." Costs: the first respondent 7. An award of costs operates by way of indemnity for the successful party (see Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J). The first respondent met the case brought against it by the applicants and has engaged in no conduct that unnecessarily prolonged the litigation or inequitably increased the costs incurred. None of the grounds alleged by the applicants against the first respondent were proved. Accordingly the first respondent is entitled to be compensated for its costs. Costs: the second respondent 8. In their final submissions dated 22 February 2002 the applicants state:- All we the Applicants ever wanted was a credible site investigation by an independent party. We persuaded the Council that such was the wisest course, but the developer refused access to the site. This Court effectively upheld the developer's refusal. Under the circumstances we do not see why we, having come up with a simple common-sense and low-cost solution which the Council was willing to underwrite should bear the Respondent's costs. The affidavit of Council's planning director Chris Pratt (attached) confirms at (para's 10 & 11) Council's shared view that this was an approach that might avoid further litigation. 9. By 14 March 2000 the council was aware that contamination on the site was a matter of great contention. The issue of contamination of the development site had been raised by the applicants on 30 June 1997, prior to council's resolution to approve the development application. Whilst the council argues that it was entitled to rely upon the judgment in Hamill v Byron Shire Council to authorise it to proceed with the granting of consent for development of the subject site, the agitation by the applicants continued. 10. Accordingly prior to the adoption of its resolution on 14 March 2000 that condition C6 of Development Application No. 95/0428 had been satisfied, the council was placed on notice that the applicants vehemently challenged the adequacy of the soil testing. However having granted development consent, and having determined that condition C6 had been satisfied, council resolved to apply to the Court for an order that further soil testing be undertaken. 11. By Notice of Motion dated 26 July 2000 the council sought an order from the Court permitting it to enter onto the land of the first respondent for the purpose of carrying out a contamination audit. The affidavit of Christopher Pratt, Director of Local Approvals and Compliance Services of the council sworn on 10 August 2000 and filed in support of such application, relevantly states:- 8. At its Meeting of 26 April 2000 the Council resolved: 'That Council adopt the suggestion in EPA guidelines and in reference to the Development Application 95/0428 ( Dudley Pastoral Co .) and obtain an independent contamination audit with specific reference to: (a) The effluent holding pond area, the former dairy area and the former dip site at the entrance to the property. (b) Heavy metals, arsenic and other contaminants not addressed in previous audits. A copy of this resolution is annexed hereto and marked "B". 9. In about June 2000 I received verbal advice from Mr Wroth Wall Solicitor for the first Respondent that his client was unwilling to allow any further soil testing on the subject land. 10. The Council is prepared to fund a further contamination audit of the first Respondent's land. 11. I am of the opinion that the granting of the Orders sought in this Notice of Motion thus allowing the subsequent independent contamination audit of the subject land to occur may resolve most or all of the issues which have given rise to these proceedings. 12. The application was made subsequent to the grant of development consent. The Court had no power to grant the application and it was dismissed (see Fast Buck$ & Anor v Dudley Pastoral Co Pty Limited & Anor 27 October 2000: unreported). However the application may well have succeeded if it had been made prior to council's resolution of 14 March 2000. 13. It is inexplicable that within six weeks of deciding that the soil testing was adequate council should decide otherwise and make the application for further soil testing. Council's conduct justifiably created the perception that the council, having resolved to accept that condition C6 was satisfied, was resiling from its decision. To apply to this court for an order for further soil testing after the litigation commenced only served to confuse the issues. If council harboured any doubts it should have required the first respondent to undertake further soil testing prior to adoption of its resolution of satisfaction of condition C6. Had such step been undertaken this litigation may well have been avoided or at least the issues confined. 14. The Court is therefore satisfied that the council has generated doubt and uncertainty which has encouraged the applicants to engage in this litigation. It has thereby disentitled itself to any order for costs. 15. The Court therefore orders:- 1) The applicants are to pay the costs of the first respondent as agreed or assessed. 2) That no order for costs be made in favour of the second respondent. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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