Brennan v Leichhardt Council (No 2) [2013] NSWLEC 199

Land and Environment Court New South Wales

Medium Neutral Citation: Brennan v Leichhardt Council (No 2) [2013] NSWLEC 199 Hearing dates: 19 November 2013 Decision date: 19 November 2013 Jurisdiction: Class 1 Before: Pepper J Decision: The applicants' notice of motion is dismissed with costs. Catchwords: COSTS: whether fair and reasonable to make a costs order in a Class 1 tree appeal - no costs order made. Legislation Cited: Environmental Planning and Assessment Act 1979, s 97

Land and Environment Court Rules 2007, r 3.7 Cases Cited: Brennan v Leichhardt Council [2013] NSWLEC 1172 Category: Costs Parties: Mr Sean Brennan (First Applicant) Ms Deborah Soden (Second Applicant) Leichhardt Council (Respondent) Representation: Mr S Brennan (Applicants) Mr J Fan (Solicitor) (Respondent) N/A (Applicants) Pikes & Verekers Lawyers (Respondent) File Number(s): 10388 of 2013

Ex tempore Judgment

Mr Brennan and Ms Soden Seek their Costs in a Class 1 Tree Appeal 1By notice of motion filed 1 October 2013, Mr Sean Brennan and Ms Deborah Soden, the applicants, seek an order that Leichhardt Council ("the council") pay their costs in respect of a partially successful appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EPAA") against an initial determination made by the council rejecting their application to remove a tree from their rear garden. 2Because the appeal was filed in Class 1 of the Court's jurisdiction, costs do not follow the event. Rather, pursuant to r 3.7 of the Land and Environment Court Rules 2007 ("the Rules") the position is that the Court is not to make an order for payment for costs unless the Court considers that the making of an order is fair and reasonable in the circumstances. 3Rule 3.7 of the Rules relevantly provides: 3.7 Costs in certain proceedings (1) This rule applies to the following proceedings: (a) all proceedings in Class 1 of the Court's jurisdiction, ... (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable. 4The application for costs is consequential upon the decision of a Commissioner of this Court partially upholding Mr Brennan's and Ms Soden's appeal by ordering the removal of a tree, but subject to a condition, opposed by them, requiring the planting of a replacement tree (Brennan v Leichhardt Council [2013] NSWLEC 1172). 5As will be apparent from the description of the relevant background facts below, the orders made by the Commissioner were in precisely the same terms as those offered by the council to resolve the matter prior to the hearing of the appeal. Although Mr Brennan and Ms Soden allege unmeritorious conduct on the part of the council such that an order for costs is justified, no evidence whatsoever was put before the Court demonstrating any wrongdoing by the council. Further, there was nothing about the substance of the issues raised in the appeal that appropriately engages the jurisdiction of this Court to order costs pursuant to r 3.7 of the Rules. 6In short, in circumstances where the only issue upon which Mr Brennan and Ms Soden were successful was a matter with respect to which the council was prepared to agree, Mr Brennan and Ms Soden are fortunate that the council is not seeking its costs of the appeal. If it had done so, the Court would have had little hesitation in ordering Mr Brennan and Ms Soden to pay the council's costs.