Land and Environment Court of New South Wales CITATION : Knox v. Wingecarribee Council [1998] NSWLEC 91 APPLICANT Knox PARTIES : RESPONDENT Wingecarribee Council FILE NUMBER(S) : 10316 of 1997 CORAM: Lloyd J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act 1979, s 69(2) CASES CITED: Laguillo v Haden Engineering Pty Limited (1978) 1 NSWLR 306 CA).; Allied Container Services Pty Limited v Sutherland Shire Council (Land and Environment Court, Pearlman J, 7 March 1997, unreported) DATES OF HEARING: 05/05/98 DATE OF JUDGMENT: 05/06/1998 APPLICANT S B Austin QC Solicitors Knox Wight & Strickland, Mosman LEGAL REPRESENTATIVES: RESPONDENT D P Wilson B Bilinsky & Co, Bowral JUDGMENT: 1. This is an application for costs by Wingecarribee Council, which was the successful party in proceedings in Class One and in Class Four of the Court=s jurisdiction and which were heard together. 2. On 2 June 1997 the Council commenced proceedings in Class Four of the Court=s jurisdiction in which it sought a declaration that the respondent in those proceedings, Mrs J Knox, had carried out development without consent having been obtained therefor, contrary to the provisions of s 76 of the Environmental Planning and Assessment Act 1979 and for consequential relief including demolition of the development which had been carried out. 3. On 4 June 1997 Mrs Knox appealed under ss 96(1) and 97(1) of the Environmental Planning and Assessment Act against the deemed refusal by the Council of a development application for the development which is the subject of the Class Four proceedings. 4. On 23 July 1997 both proceedings were set down for hearing on 24, 25 and 26 November 1997. On 19 August 1997 a notice of motion was filed on behalf of the Council that the hearing dates be vacated. On 29 August 1997 the notice of motion was dismissed with costs. On 2 September 1997 a further notice of motion was filed on behalf of the Council that the hearing dates be vacated. On 10 September 1997 the hearing dates were vacated and the Council was ordered to pay the costs thrown away by the adjournment including the costs of the motion. On 9 December 1997 both proceedings were again set down for hearing and orders were made that the proceedings be heard together and that the evidence in one matter shall be evidence in the other. 5. Both proceedings were heard together before me from 2-6 February 1997. In a judgment delivered on 3 March 1997 I dismissed the appeal in the Class One proceeding and granted the relief sought by the Council in the Class Four proceeding. 6. The making of an order for costs is, of course, entirely discretionary (s 69(2) Land and Environment Court Act 1979). In exercising its discretion, however, the Court must act judicially. That is to say, the Court must exercise its discretion in accordance with established principles. It is a cardinal principle when a court is exercising a judicial discretion in making an order for costs that, except in special circumstances, a successful party should have its costs (Laguillo v Haden Engineering Pty Limited (1978) 1 NSWLR 306 CA). 7. The exceptional circumstance relied upon by Mr S B Austin QC, who appears for Mrs Knox, is that the two proceedings were heard together and are therefore governed by the Court=s Practice Direction 1993, which provides (in cl 10): AThe practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional.@ 8. Mr Austin also submits that a major part of the case involved the determination of a question of law raised in the Class One proceeding, namely whether development consent was required for the development which was the subject of the proceedings. It is not the practice of the Court to make orders for the costs of a preliminary question of law in proceedings in Class One of the Court=s jurisdiction. Mr Austin relied upon Allied Container Services Pty Limited v Sutherland Shire Council (Land and Environment Court, Pearlman J, 7 March 1997, unreported), a case in which there were both Class One and Class Four proceedings in which a preliminary question of law was heard and determined in the Class One proceeding. Pearlman J held that in those circumstances there should be no order for the costs of the hearing of the preliminary question of law. Mr Austin further submits that the evidence in the present case was directed to the Class One proceeding. Finally, Mr Austin submits that an order for costs would defea t the intention of the Practice Direction. 9. Mr D P Wilson, who appears for the Council, submits that one cannot dissect any part of the evidence as being solely attributable to the Class One proceeding and not to the Class Four proceeding. All of the evidence, he submits, was equally relevant to the Class Four proceeding. I accept this submission. The purpose, or purposes, of the works and the relevant planning controls were clearly relevant to the determination of both proceedings, including the question of law raised in the Class One proceeding. The question whether, on merit, development consent should be granted raised the same kind of discretionary considerations of relevance to the exercise of the Court=s discretion in deciding whether to grant or withhold relief in the Class Four proceeding. These considerations suggest that the Acardinal principle@ relating to costs described in Laguillo should be applied here. 10. There is a further reason, however, which suggests that an order for costs should be made in this instance. It seems to me that there is an exceptional circumstance which would justify the making of an order for costs notwithstanding the general practice which applies in Class One proceedings and to which the Practice Direction refers. It is the fact that the development had already been carried out and completed before the development application was lodged and before the proceedings were heard. In the usual and expected course of events, a development application is made and determined, either by the Council or the court on appeal, before the development is carried out. 11. Accordingly, for the reasons described in pars 9 and 10 hereof I make the following orders: (1) Subject to the orders for costs made on 24 August 1997 and on 10 September 1997, the respondent, Jacqueline Patricia Knox, pay the applicant=s costs of and incidental to matter No 40128/97. (2) Subject to the orders for costs made on 24 August 1997 and on 10 September 1997, the applicant, Jacqueline Patricia Knox, pay the respondent=s costs of and incidental to matter No 10316/97. (3) That the respondent to this notice of motion, Jacqueline Patricia Knox, pay the applicant=s costs of and incidental to the notice of motion. 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.