Land and Environment Court of New South Wales CITATION : Betty v Ku-Ring-Gai Council [2007] NSWLEC 376 APPLICANT: Dorothy Elizabeth Betty PARTIES : RESPONDENT: Ku-Ring-Gai Council FILE NUMBER(S) : 40180 of 2007 CORAM: Biscoe J KEY ISSUES: Costs :- class 4 proceedings settled except as to costs – supervening event so removed or modified the subject of the dispute that no issue remained except as to costs – no order for costs made LEGISLATION CITED: Land and Environment Court Rules 1996, Part 15 rule 7 CASES CITED: Kiama Council v Grant (2006) 143 LGERA 441 DATES OF HEARING: 18 May 2007 EX TEMPORE JUDGMENT DATE : 18 May 2007 APPLICANT: Mr J Johnson, solicitor SOLICITORS Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT: Mr A Hudson, solicitor SOLICITORS Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 18 May 2007 40180 of 2007 DOROTHY ELIZABETH BETTY v KU-RING-GAI COUNCIL JUDGMENT 1 HIS HONOUR: These proceedings have settled except as to costs. By consent (1) The court notes that the respondent has revoked the order made by the respondent and served upon the applicant pursuant to item 21 in the Table to s 124 of the Local Government Act 1993 . (2) The proceedings are dismissed. 2 The applicant seeks, and the respondent council opposes, an order that council pay the applicant's costs of these proceedings, which are in class 4 of the Court's jurisdiction. Background 3 The substantive relief sought by the applicant in the proceedings was as follows: (a) a declaration that the document dated 6 February 2007, which purports to be an order made by the respondent council pursuant to item 21 in the Table to s 124 of the Local Government Act 1993 is void and of no effect. (b) in the alternative, an order that the respondent is restrained from taking any action in respect of the document. 4 The proceedings relate to the dropping of cones from a Bunya Pine on the applicant's residential property at 27 Braeside Street Wahroonga. It appears that the cones had dropped in the past onto adjoining residential premises owned by Mr and Mrs Adamski. 5 There was correspondence between the applicant and the respondent council in the last quarter of 2006 in which the council noted its understanding that removal of developing cones would occur in November that year. It appears that the removal in fact occurred in December 2006. On 15 December 2006, council wrote to the applicant saying that it had been brought to council's attention that not all of the cones were removed at that time. Council expressed potential concern in regard to remaining cones which would continue to increase in size and sought an indication of intentions concerning those cones. 6 On 23 January 2007, council wrote to the applicant stating that it was obliged to require her to ensure that the tree was made safe by removing all cones within fourteen working days. The letter commented on unsatisfactory de-coning of the Bunya Pine. The letter said that if the applicant did not think the order should be made, or if she was dissatisfied with the proposed terms or period for compliance, she was entitled to make representations to council concerning her reasons. 7 On 6 February 2007, council issued the document which is the subject of these proceedings. It purported to be an order under item No 21 of the orders table in s 124 of the Local Government Act 1993. It required the applicant to remove all pods from the Bunya Pine. The period for compliance with the order was stated to be thirty days. The document said that non-compliance with the order was an offence. 8 Two days later, on 8 February 2007, there was filed, in class 2 of this Court's jurisdiction, an application by the applicant's neighbours, Mr and Mrs Adamski, under s 7 of the Trees (Disputes between Neighbours) Act 2006 seeking orders for the removal of the tree, compensation in damages and costs. That application contained a chronology which alleged that there was a long standing problem with large cones falling on Mr and Mrs Adamski's property. That application was returnable on 16 March 2007. 9 On 19 February 2007, the applicant's solicitors, Bartier Perry, wrote to the respondent council demanding that the purported order of 6 February 2007 be revoked. It contended that council had no power to make the purported order for a number of reasons. 10 Council replied on 26 February 2007, stating that the matter had been referred to its lawyer for consideration and noting that as regards compliance with the order, it had been verbally advised that the Bunya Pine in question was further de-coned on or about 20 February 2007. 11 A letter of 1 March 2007, from Bartier Perry to council concluded by stating that a Mr Hill had been asked to write a report on the cone removal work done in February 2007 and that it was unlikely that the report would be available by 7 March 2007. The letter said that the applicant would agree to let council have a copy of the report as soon as it became available but only if council notified the applicant in writing no later than 5 March 2007 that the purported notice had been revoked. 12 On 6 March 2007, the applicant commenced these proceedings. 13 The class 2 proceedings brought by the neighbours, Mr and Mrs Adamski, against the applicant in these proceedings, was the subject of a judgment delivered by commissioners of this Court on 10 April 2007. The judgment refers in paragraph 52 to a supplementary cone removal exercise undertaken in February 2007 where a significant number of large cones were removed. The orders made by the commissioner included an order with respect to the Bunya Pine, that between 15 October and 15 December each year there should be a cone removal exercise undertaken by and on behalf of the owner of 27 Braeside Street. The applicant in the present proceedings is the current owner. An order was also made that the cones to be removed during that cone removal exercise were to be cones in excess of 100 millimetres in any dimension. The Costs Application 14 The application by the applicant for costs is made under Part 15 rule 7 of the Land And Environment Court Rules 1996 which provides: The Court may order the respondent to pay the costs of the proceedings where a respondent satisfies, or causes to be satisfied, the claim of the applicant after the proceedings have been commenced. 15 The applicant's submission is that by reason of the terms of consent referred to at [1] above, the respondent has satisfied, or caused to be satisfied, the claim of the applicant after the proceedings have been commenced. 16 In Kiama Council v Grant (2006) 143 LGERA 441 at [80], Preston CJ said: The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits: (a) where one party effectively surrenders to the other party by: (i) discontinuing without the consent of the other party; or (ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party; the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and (b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless: (i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or (ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action. 17 The applicant submits that the circumstances of the present case fall within subparagraph (a) in that passage. The respondent council, on the other hand, submits that sub paragraph (b) applies so that no order should be made as to costs. Council argues that the resolution of the class 2 proceedings was a supervening event which made council's further insistence on compliance with its order pointless. The applicant responds that that is just a convenient excuse to revoke the order. Council also submits that its action in issuing the order was reasonable and that the class 4 proceedings were premature, and that those are circumstances which should be taken into account in the exercise of discretion as to costs. 18 The fact that the proceedings have settled means that there has been no determination of the issue on the merits, which is the usual factor that guides the cost discretion in proceedings of this kind. It is for that reason that the courts have evolved other principles to guide the exercise of the discretion and which are relevantly expressed in Kiama. 19 In my view, the resolution of the class 2 proceedings was a supervening event which so removed or modified the subject of the dispute that no issue remains except that of costs. Further, when I look at the chronology of events, it seems to me that the class 2 proceedings (which were commenced on 8 February and returnable on 16 March) had strong potential to make proceedings such as this unnecessary. I do not mean to suggest that there was anything improper in the commencement of these proceedings. Nevertheless what I have said is, in my view, a factor which is relevant to the costs discretion. 20 For these reasons, in my view, there should be no order as to the costs of the proceedings. The respondent submits that the applicant should be ordered to pay the costs of today. In all the circumstances I do not accede to the submission. The exhibits on the costs application may be returned. 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.