Buckland v Blue Mountains City Council (2) [2005] NSWLEC 88

Land and Environment Court of New South Wales

CITATION : Buckland v Blue Mountains City Council (2) [2005] NSWLEC 88

Applicant: Buckland Convalescent Hospital PARTIES : Respondent: Blue Mountains City Council

FILE NUMBER(S) : 10962 of 2004

CORAM: Roseth SC

KEY ISSUES: Costs :-

DATES OF HEARING: 03/03/2005

DATE OF JUDGMENT: 03/08/2005

Applicant: Mr N Howie, solicitor of wilshire Webb LEGAL REPRESENTATIVES: Respondent: Mr A Seton, solicitor of Marsden Law Group

JUDGMENT: - 3 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

8 March 2005

10962 of 2004 Buckland Convalescent Hospital v Blue Mountains City Council (No2)

JUDGMENT 1 Senior Commissioner: This is an application for costs by the applicant against the council in respect of proceedings Buckland v Blue Mountains City Council [2004] NSWLEC 590, for which judgment was published on 18 November 2004 in the applicant's favour. In the proceedings two Court-appointed experts have concluded in favour of the proposal. One was an ecologist, Dr P Smith, who said that the proposed pathway could be constructed with minimal environmental impact, though he suggested conditions of consent to modify the pathway as it was shown in the application. The second was Mr N Kennan, a town planner, who concluded that, on the basis of Dr Smith's evidence, there was no reason to refuse the application. 2 In the submission of the applicant's advocate, Mr N Howie, the council should pay for the applicant's costs from the time that it received the reports by the Court-appointed experts. This is because at that point a council, acting reasonably and fairly, would have decided not to defend the case and to seek consent orders. Mr Howie's main reason for seeking costs is not that the council did not accept the Court-appointed experts' opinion, but that it failed to accept their opinion without bringing any expert evidence to rebut it. 3 I do not think that the above submission is valid, for the following reasons. First, the council's advocate, Mr A Seton, did not challenge Dr Smith's opinion and did not cross-examine him. Thus he did not waste the Court's time on unnecessary evidence. Mr Seton did cross-examine Mr Kennan, but his was because the council's major issue was that the objectives of the zone did not permit a development even with a minimal impact on the environment. In the event I did not accept that this was a valid issue, but the matter had sufficient substance to require two pages in my judgment to refute it. 4 I do not think that, in challenging Mr Kennan's opinion, it was necessary for the council to bring expert evidence from another planner about the meaning of the zone objectives. Cross-examination of Mr Kennan was sufficient to assist the Court in coming to a conclusion. The fact that the Court had appointed Mr Kennan does not mean that either party, or the Court, must accept what he said. Nor does it mean that not accepting his opinion must be supported by additional expert evidence. On the contrary, the Court aims to reduce the cost of expert evidence as much as possible. 5 Second, in addition to the issue about environmental impact, the council raised an issue about night surveillance of the path. While I do not think that it was a major issue or had a lot of substance, I cannot say that it was either frivolous or spurious. Raising it probably drew the minds of those involved in the proceedings towards the best way to light the pathway at night. 6 Third, even if I accepted that a reasonable council would have agreed to consent orders on the receipt of the Court-appointed experts' reports, I would not find that the applicant suffered unnecessary costs as a result of the council defending the case. The first day of hearing took place on site in the Blue Mountains. It was necessary regardless of the council's position, since the Court was required to hear the evidence of three objectors and visit their properties. If the council had agreed to consent orders, the time of the hearing may have been shorter, but it is likely to have taken more than half a day. 7 The second day of hearing was the result not of the council's refusal to agree to consent orders, but of the Court's requiring the applicant to produce drawings showing the precise location and construction of the footpath that was acceptable to Dr Smith. This avoided the imposition of lengthy and complicated conditions that would have probably led to disputes of interpretation. While Mr Seeton made a short submission on the second day, this added only marginally to the time of the hearing. 8 I do not think that it would be fair or reasonable to require the council to pay the applicant's costs following the receipt of the reports by the court-appointed experts. The application for costs in this matter is therefore dismissed.