Land and Environment Court of New South Wales CITATION : Donald Crone & Associates v Bathurst City Council & Ors [1988] NSWLEC 37 APPLICANT Donald Crone & Associates FIRST RESPONDENT Bathurst City Council PARTIES : SECOND RESPONDENT Woolworths Limited THIRD RESPONDENT Kenlinda Pty Ltd FOURTH RESPONDENT Minister For Planning and Local Government FILE NUMBER(S) : 10152 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act CASES CITED: Woolworths Limited v. Bathurst CIty Council, 63 LGRA 55 DATES OF HEARING: DATE OF JUDGMENT: 12/01/1988 RESPONDENT LEGAL REPRESENTATIVES: Miss Blackman Mr. Masterman QC JUDGMENT: His Honour: On 19 October 1988, I ordered that development consent be granted subject to certain conditions. I refer to my reasons for judgment published on that day. No application was made for costs and no order was made by the Court. On the same day, I dismissed associated proceedings No: 40184/88 brought by Woolworths Limited and Kenlida Pty. Limited against the Council of the City of Bathurst and Donald Crone & Associates Pty. Limited (the Developer) and ordered that the applicants pay the respondents' costs of the proceedings. On 28 November 1988, the applicant in matter No: 10152/88, Donald Crone & Associates Pty. Limited (the Developer) made an application that Woolworths Limited and Kenlida Pty. Limited pay its costs of the Class 1 proceedings. Upon the matter coming on for hearing, Miss Blackman, on behalf of Woolworths and Kenlida Pty. Limited, submitted the Court had no jurisdiction to make any order for costs in the matter because having granted development consent subject to conditions, the Court was "functus officio" and could not thereafter entertain any application for costs. She also submitted that should the Court have jurisdiction to make such an order, it ought not, in the exercise of its discretion, make one. Section 69 of the Land and Environment Court Act provides that costs of or incidental to proceedings in the Land and Environment Court are in the discretion of the Court. It is the practice of the Court in planning and building appeals not to order the unsuccessful party to pay costs. However, that general practice is subject to "exceptional circumstances", such as late withdrawal or discontinuance, putting matters in issue having no prospect of success etc. I trust I do no disrespect to the argument advanced by Ms. Blackman when I present short reasons why her submission that the Court is "functus officio" is doomed to fail. The power of the Land and Environment Court to award costs is to be found in s.69 of the Act. The Court was not asked to determine the question of costs in matter No: 10152/88 until 9 December 1988. So far from being "functus officio", the Court never considered the question of costs until the present application was made to the Court. In my opinion, an order for costs may be made by the Court at any stage of the proceedings on or after their conclusion. Miss Blackman could point to no case establishing the proposition that a superior court of record, having the power to order costs in proceedings was deprived of the jurisdiction to make an order because an application for costs was not made at the time the Court either upheld or dismissed the proceedings. Accordingly, I am of the opinion that I have the jurisdiction to entertain the applica tion. In the judgment referred to above, a short history of the planning application by the Developer is set out. The subject matter of the litigation was also before the Court in 1987 (see Woolworths Limited v. Bathurst CIty Council, 63 LGRA 55). The Developer sought planning permission for a retail shopping centre and car park station in the Bathurst CBD. The Council supported the Developer but the application was opposed by Woolworths Limited and Kenlida Pty. Limited. Woolworths has a supermarket and a Big W department discount store in Bathurst. If the proposed development goes ahead, it will be exposed to competition from Coles which proposes to establish Franklins Supermarket and the K Mart discount department store. As I have noted in the judgment, the Council would have granted its consent were it not for an order of Bryson J in the Equity Division of the Supreme Court on March 16, 1968, restraining the Council from determining the application. In obedience to that order, the Council did not determine the m atter and the Developer appealed to the Land and Environment Court. Woolworths and its subsidiary applied for leave to be joined as parties. The application was granted by the Registrar who accepted an unsolicited and voluntary undertaking by Woolworths and Kenlida that their participation would be limited to Kenlida's interest under the covenant the subject of the equity proceedings. However, when the appeal came on for hearing, the Council and the Developer announced that they did not oppose full participation by Woolworths and Kenlida. Thereafter, the matter proceeded as if Woolworths and Kenlida (who I shall hereafter call "Woolworths") were full parties. Woolworths had obtained an opinion from an expert planner, Tasman F. Dalley, concerning the economic viability of Franklins Supermarket and K Mart discount store. Previously, it had forwarded a copy of Mr. Dalley's report to the Council. The Council presented Mr. Dalley's report to the Court but did not call him. Woolworths did not call him and his evidence remained untested. Mr. Masterman QC, on behalf of Woolworths, on the other hand, cross examined Mr. Hunt, the expert called on behalf of the Developer, and the Council's planning officer. At page 12 of the judgment I refer to the circumstance that Woolworths, by its subsidiary, acquired a parcel of land for the stated purpose of preventing or delaying Coles' entry into the Bathurst CBD. I will not repeat the findings I made in this regard beyond noting that Woolworths acquired Lot 1 believing that either its ownership of the land would frustrate the development ambitions of Coles or, if the development went ahead, the value of the acquired land would increase because of the major commercial complex next door. As is made clear from the judgment, although Woolworths was entitled to participate fully in the proceedings and was given the opportunity to cross examine all witnesses, it called no independent planning evidence itself (although, as I have said, the Council tendered the report of Tasman Dalley, the planner retained by the Developer). Much of the time taken in the proceedings was concerned with legal issues, all of which were resolved unfavourably to Woolworths. Although it was urged upon me that I had the benefit of hearing the Council's planner cross examined and the Developer's witnesses cross examined, I am bound to note that the cross examination of these witnesses did little to illuminate the planning issues. On behalf of Woolworths, Miss Blackman has submitted I should make no order for costs in the exercise of my discretion because the application was not made until after Woolworths appealed against my decision in the Class 1 matter. I had some difficulty in understanding this submission. It was not suggested that Woolworths were misled by the Developer by any promise that if Woolworths appealed, it, the Developer, would not ask for costs. Nor is it suggested that if an order for costs had been made, Woolworths would not have appealed. In these circumstances, it is difficult to see what relevance I should attach to the circumstance that the application for costs was not made until after Woolworths appealed. It is also submitted that an order that Woolworths pay the costs of the present proceedings would be tantamount to determining that the interlocutory decision of Bryson J in the Supreme Court was incorrect. That proposition, with the greatest respect, must be totally rejected as a reading of His Honour's judgment makes clear. Bryson J made an order restraining the Council from determining the matter because, inter alia, there was a possibility that the Council might have a conflict of interest. It is submitted that if Woolworths had not appeared in the proceedings before me there would have been no proper contradictor and that time would be taken by the Court itself considering the propriety of granting development consent because the Council and the Developer were of one mind about it. It is true that the order of Bryson J made it almost certain that there would be an appeal to the Land and Environment Court. But the appeal would not have taken five days or anything like that had it not been for the interven tion of Woolworths. I am of the opinion in the present case that exceptional circumstances have been established. I am not overly impressed with the submission made on behalf of the Developer that I should have regard to Woolworths' stated motive to stifle competition in the Bathurst CBD. I am more concerned with the nature of the case made by Woolworths in the proceedings. If Woolworths had presented acceptable planning material or had successfully impugned the Developer's case, its motives would have been of little concern to the Court. The circumstance that Woolworths had a commercial interest in keeping Coles out of the CBD would not of itself lead to an order being made against it for costs. It was possible, theoretically at least, for the commercial interests of Woolworths and the interests of the citizens of Bathurst to have coincided. As I have found in the judgment, although Woolworths might have a commercial interest in keeping Coles out of the CBD, planning merit dictated that Woolworths' commercial interest should st and behind the interests of the citizens of Bathurst. All the planning evidence upon which I placed any reliance was that development consent should be granted. Woolworths were wholly unsuccessful in the proceedings. Its intervention protracted the hearing and its contribution to the resolution of the planning merit issues was insignificant. The Class 4 proceedings and the Class 1 proceedings were heard together. The Class 4 proceedings were dismissed and Woolworths was ordered to pay costs. In all the circumstances, I am of the opinion that exceptional circumstances have been established and the order of the Court is that Woolworths Limited and Kenlida Pty. Limited pay Donald Crone & Associates' costs of the proceedings. I was informed by the Council of the City of Bathurst that it asked for no order for costs. As between the Council and Woolworths Limited and Kenlida Pty. Limited, there will be no order for costs. 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.