Land and Environment Court of New South Wales CITATION : MCC Energy Pty Limited v Wyong Shire Council & Others [2006] NSWLEC 678 APPLICANT MCC Energy Pty Limited FIRST RESPONDENT PARTIES : Wyong Shire Council SECOND RESPONDENT Scott James Ford THIRD RESPONDENT Lorraine Gayle Ford FILE NUMBER(S) : 40083 of 2006 CORAM: Jagot J KEY ISSUES: Costs :- costs in judicial review proceedings LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 123 Land and Environment Court Act 1979 s 69 DATES OF HEARING: 20/10/2006 EX TEMPORE JUDGMENT DATE : 10/20/2006 APPLICANT Mr K Muir (in person) SOLICITORS N/A FIRST RESPONDENT Mr P Tomasetti SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: SECOND RESPONDENT Submitting appearance SOLICITORS Aubrey Brown Partners THIRD RESPONDENT Submitting appearance SOLICITORS Aubrey Brown Partners JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 20 October 2006 40083 of 2006 MCC ENERGY PTY LIMITED Applicant WYONG SHIRE COUNCIL First Respondent SCOTT JAMES FORD Second Respondent LORRAINE GAYLE FORD Third Respondent JUDGMENT Jagot J: 1 On 20 September 2006 I gave my principal judgment in these proceedings in which I determined that the applicant's challenges to the validity of development consent 1370/02 could not be upheld. I ordered that the Class 4 application be dismissed. As the applicant was not present on the occasion that I published my reasons and made that order, I did not deal with the issue of costs at that time in order to ensure that the applicant would have an opportunity to be heard in relation to costs. 2 The matter has come before me today on the issue of costs. Mr Reilly for the Council, first respondent in the proceedings, submits that the usual order as to costs should be made, and that there is no circumstance in this matter which would displace the ordinary principle that in these type of proceedings the Council has a reasonable expectation that it will be compensated by an order for costs in its favour. 3 Mr Muir for the applicant has raised five principal points that he submits supports the position that each party should pay its own costs of these proceedings. As he said during the hearing, he offered to the Council that there should be no orders as to costs of these proceedings irrespective of the result; an offer which the Council did not accept. 4 The five principal matters relied upon by the applicant are first that the applicant was represented by Mr Muir who is not legally qualified. Mr Muir says that in circumstances where the Council was always aware that he was a non-legally qualified litigant there is both an imbalance of power and that the Council's approach of obtaining counsel to represent it at the hearing was over-cautious. 5 Secondly, Mr Muir says that his claim was not vexatious or frivolous. I should say that, in circumstances where the notion of vexatious or frivolous claims has a particular legal meaning, nothing in my judgment should be understood as suggesting that the claims were vexatious or frivolous in that sense. I determine that the claims should not be upheld but that is quite different. 6 Thirdly, Mr Muir says that the decision provides substantial clarity of particular assistance to lay people about the distinction between judicial and merits review. This raises the question – is it reasonable that one ratepayer should bear the burden of all of the costs associated with obtaining that clarity? Mr Muir emphasises that the applicant was seeking to clarify Council's exact legal obligations, the applicant is not a large entity, had itself spent money and time in prosecuting these proceedings and perceived that its property had been decreased in value by a significant amount by reason of the grant of the consent. 7 Fourthly, Mr Muir sought legal advice and brought the proceedings on the basis of the principles of law that he understood applied. 8 Fifthly, Mr Muir emphasises that there is a distinction between legal principles about the review of Council's decisions in these types of proceedings and the reasonable expectations of residents about fair development and the way in which Councils deal with development applications. 9 The Court has a wide discretion in relation to the issue of costs under s 69 of the Land and Environment Court Act 1979 which provides that subject to the rules and subject to any other Act, costs are in the discretion of the Court and that the Court may determine by whom and to what extent costs are to be paid. 10 I understand Mr Muir's submissions. Nevertheless, I do not consider that the circumstances to which he points make it an appropriate exercise of discretion to order that each party its own costs of the proceedings. These were Class 4 proceedings in which the applicant challenged the validity of the development consent. The second and third respondents filed a submitting appearance with the consequence that the Council took up the burden of defending the validity of the development consent. As my principal reasons disclose, the Council was successful in that defence. 11 In the circumstances, it seems to me that the appropriate order is the usual order with respect to costs; namely that the applicant pay the respondents' costs as agreed or as assessed. As Mr Reilly said, the purpose of the costs order is not to punish an applicant for bringing proceedings to the Court. Section 123 of the Environmental Planning and Assessment Act 1979 enabled these proceedings to be brought, heard and determined. But in all the circumstances, I consider that the ordinary principle that underlies the usual costs order, that is to compensate the successful respondents, should be applied in this case. 12 Therefore I order that the applicant is to pay the respondents' costs of the proceedings as agreed or as assessed. **************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.