Auburn City Council v Aamac Warehousing & Transport Pty Ltd [2011] NSWLEC 45

Land and Environment Court New South Wales

Medium Neutral Citation: Auburn City Council v Aamac Warehousing & Transport Pty Ltd [2011] NSWLEC 45 Hearing dates: 22 March 2011 Decision date: 22 March 2011 Before: Sheahan J Decision: The respondent is ordered to pay the reasonable costs of the applicant on a party-party basis, as agreed or assessed, and the Council is granted leave to otherwise discontinue the proceedings. Catchwords: COSTS: Class 4 proceedings resolved, save as to costs - principles to apply Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Jan Yee Australia Pty Ltd v Woollahra Council [1997] NSWLEC 33 Re Minister for Immigration and Ethnic Affairs and Another; Ex parte Lai Qin (1997) 186 CLR 622 Thomson v Mosman Council [1999] NSWLEC 86 Category: Costs Parties: Auburn City Council (Applicant) Aamac Warehousing & Transport Pty Limited (Respondent) Representation: Counsel: Mr A Hudson, Solicitor (Applicant) Solicitors: Wilshire Webb Staunton Beattie Lawyers File Number(s): 41054 of 2010

EXTEMPORE Judgment 1The Council appears today seeking an order for its costs of these proceedings. They were defended, but resolved without agreement on costs. That outstanding question was listed for hearing today, by agreement, but the respondent's solicitor Mr McKell filed on 15 March 2011 a notice of his intention to file a notice of ceasing to act today. 2No-one appeared on the respondent company's behalf today. Leave was granted to Mr Hudson, solicitor for the Council, to proceed ex parte, and he agreed to read the respondent's affidavits as well as the Council's, so that the court could satisfy itself that it is just, fair, and reasonable that Council should have an order for its costs. In doing so, the court must not try the case on a hypothetical basis, but must gain some impression of how it played out. ( Re Minister for Immigration and Ethnic Affairs and Another; Ex parte Lai Qin (1997) 186 CLR 622). 3It would appear that the respondent company operated a container freight moving depot on the subject site at Homebush Bay from about 2003. Neighbours and others complained about dust emanating from the operation, and, there being no development consent for the use, Council relevantly issued an order under s 121B of the Environmental Planning and Assessment Act 1979 in May 2009. An appeal dealt with by Commissioner Hussey resulted in a modified order on 9 December 2009, under which the respondent agreed (1) to vacate the site by 9 December 2010, (2) to forego any contention of " existing use " or " continuing use " rights, and (3) to operate in accordance with a Plan of Management. 4The respondent clearly sought alternative locations in Botany and Villawood. After complaints in February 2010 undertakings were given. However, the dust problems continued, and by November 2010 Council was of the view that the company was operating in breach of both the court-modified order and the undertakings, and that the dust problems were worsening. 5Council warned the company on 23 November 2010 that if it did not vacate by 9 December 2010, class 4 proceedings would be commenced immediately, seeking both interlocutory orders to close the operation, and final orders to vacate the site, cease the use, and pay Council's costs. 6On 20 December 2010, Mr McKell sought an extension, for total vacation of the site, to 31 January 2011, but Council issued the summons on 23 December 2010 without any prayer for interlocutory relief. The return date was 4 February 2011, but further complaints about dust during January 2011 resulted in Council inspecting the site and concluding that the respondent had not commenced any relocation activity including wind-down of operations. The company contests that conclusion. 7Council filed a Notice of Motion on 21 January 2011 seeking interlocutory relief, returnable on 28 January 2011. The respondent filed its appearance and its two affidavits on 27 January 2011. 8By consent, Pepper J made interlocutory orders on 11 February 2011, and they were complied with to Council's satisfaction by at least 24 February 2011, when Council indicated to the court that it was no longer seeking substantive relief. The respondent has apparently relocated to Botany. 9Adopting the terminology employed by Bignold J in Jan Yee Australia Pty Ltd v Woollahra Council [1997] NSWLEC 33, I have concluded that both the substantive and the interlocutory proceedings were " justifiably commenced, justifiably continued, justifiably settled and in all probability would have succeeded ". See also Thomson v Mosman Council [1999] NSWLEC 86. 10The respondent is ordered to pay the reasonable costs of the applicant on a party-party basis, as agreed or assessed, and the Council is granted leave to otherwise discontinue the proceedings.