Land and Environment Court of New South Wales CITATION : Gales-Kingscliff Pty Ltd v Tweed Shire Council (No. 3) [2007] NSWLEC 820 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Gales-Kingscliff Pty Ltd PARTIES : RESPONDENT Tweed Shire Council FILE NUMBER(S) : 10775 of 2007 CORAM: Preston CJ Development Consent :- conditions - condition that development consent does not authorise the clearing or removal of trees KEY ISSUES: Costs :- applicant seeks costs in relation to unsuccessful application by Council to amend its statement of facts and contentions to raise further issue that endangered ecological community exists on the subject land - applicant relies on finding that Council did not comply with Practice Note Class 1 - Development Appeals - applicant participated without objection in the preparation of the matter - applicant did not demur from the Court making directions for the further preparation of the matter or submit that there was a need to formally apply to amend the statement of facts and contentions - not fair and reasonable in the circumstances to order costs against the Council - no order for costs made LEGISLATION CITED: Land and Environment Court Rules 1996 Part 16, r 4(2) CASES CITED: Gales-Kingscliff Pty Ltd v Tweed Shire Council [2007] NSWLEC 683; Gales-Kingscliff Pty Ltd v Tweed Shire Council (No. 2) [2007] NSWLEC 817 DATES OF HEARING: 23 November 2007 EX TEMPORE JUDGMENT DATE : 23 November 2007 APPLICANT Mr T Robertson SC SOLICITORS Woolf Associates LEGAL REPRESENTATIVES: RESPONDENT Ms K Gerathy (Solicitor) SOLICITORS Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 23 NOVEMBER 2007 10775 OF 2007 GALES-KINGSCLIFF PTY LTD V TWEED SHIRE COUNCIL (No 3) JUDGMENT HIS HONOUR: Conditions of consent 1 In my principal judgment of 16 October 2007 in these proceedings, I determined the issues between the parties and concluded that development consent ought to be granted subject to appropriate conditions: Gales-Kingscliff Pty Ltd v Tweed Shire Council [2007] NSWLEC 683. I adjourned the proceedings for a period of time in order to enable the parties to exchange draft conditions of consent. 2 In my judgment given in relation to the Council's application for leave to amend the statement of facts and contentions and hence the issues in the proceedings, I set out the history of what occurred after I made those directions: Gales-Kingscliff Pty Ltd v Tweed Shire Council (No.2) [2007] NSWLEC 817 at [28] - [38]. 3 Through the exchange of draft conditions of development consent, two conditions have been agreed between the parties, being draft conditions 1 and 3 in the Council's draft conditions. Condition 4 was disputed. However, reluctantly the applicant would submit to the Court imposing a condition in terms of condition 4 suggested by the Council. 4 The issue that was substantially in dispute between the parties was condition 2 which concerned whether fencing should be erected around vegetation that follows the property boundary along the northern and western boundaries. Again, I have dealt with the issue in detail in the judgment in relation to Council's proposed amendment: Gales-Kingscliff Pty Ltd v Tweed Shire Council (No.2) [2007] NSWLEC 817 at [30], [31], [49] - [66]. 5 For the reasons I gave there, I determined that the Council should not be allowed to amend its statement of facts and contentions to raise the issue and hence the foundation for imposing a condition in terms of condition 2 proposed by the Council is removed. Nevertheless, there does seem to be an advantage in making clear that the development consent for the development application does not include any authorisation for the clearing or removal of the trees along the northern and western boundaries, or indeed on the property generally. 6 The development application is simply an application for use of the land for the purpose of livestock grazing. There has not been any proposal to remove or clear trees. Nevertheless, it probably is desirable that there be an express statement to that effect. 7 There are no other conditions suggested by the Council, or that the circumstances of the case give rise to. 8 Accordingly, I propose to grant development consent subject to the following conditions: 1. The development shall be completed in accordance with the Statement of Environmental Effects and Plan Nos Figure 1 - Subject Site prepared by Darren Gibson Planning and dated 6 February 2007, except where varied by the conditions of this consent. 2. The consent does not authorise the clearing or removal of trees on the land. 3. This consent authorises use of the land for livestock grazing for a maximum of 50 head of cattle and 20 head of horses at any one time. 4. This consent is time limited to a period of five years only. Costs 9 The applicant seeks its costs of the proceedings on and from 22 October 2007. It makes no application in relation to costs prior to that. That was the position it made clear at the conclusion of the substantive proceedings by my judgment on 16 October 2007. 10 The change in circumstances which prompts the applicant to seek its costs on and from 22 October 2007 is the ultimate determination by the Court not to grant leave to the Council to amend its statement of facts and contentions and hence the issues in these proceedings to litigate the question of whether the vegetation on the northern and western boundaries of the site is an endangered ecological community of Swamp Oak Floodplain Forest, or is otherwise of such significance as to warrant fencing. 11 The applicant has tendered a bundle of documents. The documents show that on 22 October 2007 the Council, through its solicitors, provided the draft conditions of the development consent. Those draft conditions of consent included the suggested condition 2 that fencing be erected surrounding the "Endangered Swamp Oak (Casuarina glauca) vegetation". 12 The next day there was a internal communication between the applicant's consultants and the applicant's solicitor and others which recorded a conversation between that consultant and an officer of the Council in which there was discussion about draft conditions 2 and 4 of the document forwarded the previous day. There apparently was some request as to whether there could be negotiation in relation to condition 2, however, the impression the applicant's consultant obtained was that there would be little "joy" in relation to condition 2 without further argument before the Court. 13 I note that the Council did not have the opportunity to take instructions or to call evidence from the Council officer involved in this conversation. Nevertheless, as will be seen from the subsequent chronology, it seems probable that something to that effect might have been discussed. 14 Immediately after that discussion, the applicant's solicitor e-mailed the applicant's consultant setting in train work to investigate whether the vegetation was endangered in some way and what might be the effect and how evidence could be prepared. 15 On 24 October 2007, the applicant's solicitors wrote to the Council's solicitors suggesting deletion of condition 2 and putting forward reasons why that might be so including that the species identified in condition 2, namely, swamp oak (Casuarina glauca), is not itself an endangered species. 16 On 25 October 2007, the Council's solicitors responded to the applicant's solicitors advising that the Council wished condition 2 to remain as proposed by the client. There still was an assertion that the species was an endangered species. 17 On 25 October 2007, there was a draft report from one of the experts the applicant had engaged, Mr Elks. There then followed some subsequent documents. The applicant submits that those documents show that the applicant was put to proof about an issue that had not been previously raised and engaged in discussion where there was still uncertainty as to what was the precise manner in which the Council put the issue. 18 The applicant also refers to the reasons I gave in relation to declining leave to the Council to amend the issues, particularly those which related to the failure to comply with the Practice Note of raising the issue if the Council had wanted to raise the issue at an earlier time and in the proper form required by the Practice Note. 19 The applicant submits that in the circumstances it is fair and reasonable that the applicant be compensated for the costs to which it has been put by preparing evidence on and from 22 October 2007 for an issue that ultimately the Court has not allowed to be litigated. 20 The Council submits that the proper order should be that each party pay their own costs. The Council points out that the relevant rule of the Land and Environment Rules 1996 governing this type of proceedings, namely, Part 16, rule 4(2) provides that the Court should not make an order for costs unless the Court is satisfied that it is fair and reasonable to do so in all the circumstances of a particular case. 21 The Council submits this involves looking at the conduct of both parties in the relevant period and the context in which those parties acted. The Council refers to events in the chronology other than those which I have described above and which are set out in the bundle of documents tendered by the applicant. The Council commences with my decision of 16 October 2007 and the directions I made. 22 Those directions included that the Council file and serve its draft conditions of consent by 19 October and the applicant file and serve an amended draft condition of consent by 24 October 2007 and the matter be re-listed for further hearing on 26 October 2007. 23 When the matter came back before me on 26 October 2007, the Council had filed its draft conditions of development consent, on 23 October 2007, and the applicant had responded with its draft conditions of consent, on 25 October 2007. That showed that there was an issue in relation to condition 2. 24 I made directions that the Council file and serve any evidence in relation to fencing of relevant vegetation by 2 November 2007, the applicant file and serve any evidence in relation to fencing of relevant vegetation by 5 November 2007 and the parties approach the Registrar for the purpose of fixing a hearing date as soon as reasonably practical after 5 November 2007. The Council submits that the applicant did not demur from those directions or submit that there was a need for the Council to make a formal application to amend its statement of facts and contentions. 25 The Council filed and served a report of Mr Parker by 2 November 2007. The applicant responded to that report, although four days later than the directions had required, on 9 November 2007, by filing and serving reports of Dr Smith, Mr Elks and Dr Hazelton. 26 The matter came back before me on 13 November 2007. The necessity for the matter to come back before me was that a hearing date had been fixed for 15 November 2007 by the Registrar after the parties had approach the Registrar pursuant to my orders on 26 October 2007. The Council had discerned that it would need to file evidence to respond to the evidence of Dr Smith, Mr Elks and Dr Hazelton and could not do so by the hearing on 15 November. 27 Accordingly, the Court vacated the further hearing on 15 November 2007, directed the Council to file and serve all evidence upon which it relies by 16 November 2007 and directed that the parties respective experts to confer on 19 November and to file and serve a report by 20 November and fix the matter for hearing on 21 November 2007. The Council submits that the applicant again did not demur from the Court making those directions and participating in the further preparation of the matter. The applicant did not submit to the Court that the Council should formally make application to amend its statement of facts and contentions. 28 The Court was obliged to vacate the hearing date on 21 November because of over-listing and the matter was re-listed today (23 November 2007) with the parties' co-operation. 29 The Council submits that when one looks at that chronology it can be seen that the applicant participated in the directions made by the Court and the preparation of the matter for a contested hearing in relation to the Council's suggested draft condition 2. 30 The Council finally submits that the real cause which brought the matter to a head was the Court expressing concern as to the evidence that had been filed not meeting the statement of facts and contentions that hitherto had governed the conduct of the proceedings. The Court stated to the Council that, if it wished to pursue the issues raised by its suggested condition 2, it could only do so if it sought leave to amend the statement of facts and contentions and hence the issues in these proceedings. The Council did so in the terms that I have discussed in the earlier judgment: Gales-Kingscliff Pty Ltd v Tweed Shire Council (No.2) [2007] NSWLEC 817 at [1]. 31 In these circumstances, the Council says that it would not be fair and reasonable to order the Council to pay the applicant's costs on and from 22 October 2007 for the preparation of this matter up until date because both the applicant and the Council participated without objection in the preparation of the matter. 32 In my opinion, there is some force in what the Council says. It is certainly true that the matter was brought to a head today by my expressing concern that the evidence that had been filed and, upon looking at that evidence, the further evidence that would need to be filed, was way beyond the boundaries of the issues that hitherto had been raised in the proceedings. The issues in the proceedings are raised by reason of the statement of facts and contentions filed by the Council and responded to by the applicant. 33 As I have set out in the reasons for judgment on the Council's application to amend the issues, at no time had the issue in relation to the endangered ecological community and the impact the proposed development might have on that community been raised squarely in the proceedings and it did not form part of the hearing that has been conducted and led to the judgment of 16 October 2007. 34 Perhaps it is unfortunate that it did not occur to either the Court or the parties earlier than today that the matter was straying far from the issues that have been articulated in the proceedings. The directions made by the Court and participated in by the parties led to the preparation of evidence that was far beyond what had previously been the issues in the proceedings. 35 Nevertheless, it cannot be said that the Council alone was the cause of this state of affairs. Clearly the Council, by proposing draft condition 2, put in issue whether the vegetation on the land was part of the endangered ecological community. Nevertheless, as the Council submits, the applicant responded to that without demurrer either in terms of the scope of the issue or the need for leave to amend the statement of facts and contentions. 36 I am not satisfied in the circumstances that have been set out above, that it would be fair and reasonable to order costs in relation to these events and accordingly, under the rule, no order for costs should be made. Orders 37 The formal orders of the Court, will be: 1. The appeal is upheld. 2. Development consent is granted to use Lot 1, DP1075645, Tweed Coast Road, Chinderah for the purpose of livestock grazing subject to the following conditions: 1. The development shall be completed in accordance with the Statement of Environmental Effects and Plan Nos Figure 1 - Subject Site prepared by Darren Gibson Planning and dated 6 February 2007, except where varied by the conditions of this consent. 2. The consent does not authorise the clearing or removal of trees on the land. 3. This consent authorises use of the land for livestock grazing for a maximum of 50 head of cattle and 20 head of horses at any one time. 4. This consent is time limited to a period of five years only. 3. There be no order as to costs of the proceedings. ********** 21/12/2007 - Orders referred to did not reflect oral reasons - Paragraph(s) Paragraphs 8 and 37 and Order 2 21/12/2007 - formatting - Paragraph(s) orders 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.