Land and Environment Court of New South Wales CITATION : Jarvie, Russell v Hawkesbury Shire Council [2006] NSWLEC 800 APPLICANT Russell Jarvie PARTIES : RESPONDENT Hawkesbury Shire Council FILE NUMBER(S) : 11350 of 2004 CORAM: Talbot J KEY ISSUES: Costs :- where proceedings discontinued Bankruptcy Act 1966 (Cth) LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 1996 DATES OF HEARING: 04/12/2006 EX TEMPORE JUDGMENT DATE : 12/04/2006 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr C J Leggat SC SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 4 December 2006 11350 of 2004 Russell Jarvie v Hawkesbury City Council EX TEMPORE JUDGMENT 1 Talbot J: The applicant in these proceedings lodged an appeal in response to a notice of determination issued by the council on 17 December 2004. The reasons for the determination were inter alia that documentation was inadequate to allow proper assessment under 79C of the Environmental Planning and Assessment Act and a number of issues were identified in that respect in reason number two. Reason number four was that the site does not have adequate or safe vehicular access. There was a specific reason for refusal number five that the proposal was likely to have an adverse impact on the existing water table and other bores and springs in the vicinity. 2 The applicant had already lodged an appeal to this Court in November 2004 as a consequence of the deemed refusal of the development application. Accordingly the notice of determination was no more than an indication of the decision that the council would have made (and did indeed subsequently make) if the matter had been determined by it prior to the appeal. The proceedings continued with a number of interlocutory steps being taken including assessment by various experts but in particular hydrological experts who investigated, in conjunction with a Court Appointed Expert, the potential impact on the aquifers of the site if the applicant was granted a development consent to install a commercial bore for the extraction of natural water from the site. The Court Appointed Expert indicated that the first test bore was inadequate to determine whether there would be impact on the upper aquifers in and adjacent to the site. A second bore was commenced. The council took action for interlocutory relief in relation to that second bore and obtained an injunction restraining its use 3 The applicant on further advice in March 2006 lodged an application by way of notice of motion whereby it sought the Court's permission to conduct a long-term pumping test from the second bore for at least two weeks in accordance with the recommendation made by the Court appointed expert. The making of such an order was opposed by the council and it became apparent during argument and no doubt during negotiations between the parties that in order to gain the necessary access to the property in order to carry out whatever pump tests were required not only would there be a need to obtain the consent of the RTA who own the road reserve along the frontage to the property but also a development consent for that activity itself would be required. Or at least that is how the argument went. 4 It was at that point, Mr Jarvie tells the Court, that the complications in respect of the current application were so manifest that he elected on advice to discontinue the proceedings thereby facilitating the saving of further costs but at the same time conserving the benefit of the expert advice and witness statements, so far as they'd gone at that stage, for future years in the event that the problem of gaining access to the property for the purpose of testing was resolved. The decision made by the applicant in March 2006 was inherently a reasonable one. 5 Pursuant to Pt 16 r 4 and Part 11 rule 5 Land and Environment Court Rules 1996 relating to the costs upon the filing of a notice of discontinuance there is a shifting onus from one party to the other. In the first place Mr Jarvie having filed the notice of discontinuance needs to show that not only was he justified in doing so but the filing of the notice of discontinuance was caused by the actions of the other party in some way or at least that there was some extraneous outside influence that justified him discontinuing the proceedings without the burden of a costs order. If the applicant fails to discharge that onus following the filing of the notice of discontinuance then the onus moves to the council to show that it is fair and reasonable in the circumstance of the case that the other party pay the costs incurred. 6 The difficulty for Mr Jarvie is that the problems he encountered in March 2006 were ever present particularly after 17 December 2004 when the council issued the notice of determination. Up to that date it is reasonable to assume he would not have been aware of the reasons for the council's failure to determine the matter in his favour. I think that having regard to the overall circumstances of the case and setting aside any issues that arise as a consequence of the initial point raised by Mr Jarvie regarding his recent bankruptcy referred to below that it is appropriate that there be no order as to costs between 3 November 2004 and 17 December 2004. Thereafter the applicant had been made aware of the difficulties that existed and were the catalyst for the notice of discontinuance. Ultimately, although in a slightly different context, those catalytic facts would have applied to the whole of the development application so that in the circumstances it is fair and reasonable that the applicant pay the council's costs after 17 December 2004 up to the date of notice of discontinuance. 7 I have been made aware of the fact that on 24 August 2006 a sequestration order was made against Mr Jarvie although that fact has not been proved. It is nevertheless not disputed. Mr Leggat SC, who appears for the council, makes a submission regarding the effect of s 60 subs 1(b) and s 82 of the Bankruptcy Act 1966 (Cth) to the effect that until such time as the Court makes a cost order it does not constitute a debt and therefore accordingly does not fall within the ambit of the sequestration order. I note however that a trustee has been appointed and the council has not notified the trustee that the notice of motion before the Court today seeking an order for costs against the applicant is to be proceeded with. Accordingly I propose to stay the order for payment of the costs and to make a direction that the council notify the trustee in bankruptcy that the Court has made a determination that the applicant is liable for the costs as I have indicated and to allow the trustee 21 days from the date of the notice to apply to this Court for any appropriate order. 8 I make the following orders: 1. The applicant pay the legal costs of the respondent from 17 December 2004 to 29 March 2006 including the costs of today, excluding the costs of the expert witnesses in the proceedings. 2. Order 1 is stayed until further order or a period of 28 days whichever is earlier. 3. The respondent council by 4pm on Wednesday 6 December 2006 notify the trustee in bankruptcy of the applicant's estate that the Court has made these orders including notification that it may apply to this Court for variation or dismissal of these orders by 4pm 3 January 2007. 9 There has been no address about the cost of the Court Appointed Expert. Before I make an order in relation to that I will need to be satisfied that there is not already an extant order either because of the way in which a Court Appointed Expert is appointed pursuant to the rules or because there was a formal order at the time the expert was appointed. The question of costs payable as fees to the court appointed expert is reserved. 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