Lake Macquarie City Council v Australian Native Landscapes (No 3) [2015] NSWLEC 118

Land and Environment Court New South Wales

Medium Neutral Citation: Lake Macquarie City Council v Australian Native Landscapes (No 3) [2015] NSWLEC 118 Hearing dates: 23 July 2015 Date of orders: 23 July 2015 Decision date: 23 July 2015 Jurisdiction: Class 4 Before: Biscoe J Decision: Respondent to pay applicant's costs. Catchwords: COSTS – civil enforcement proceedings – whether costs should be apportioned. Cases Cited: Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70 Brown v Randwick City Council (No 2) [2012] NSWLEC 28 F&D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 Lake Macquarie City Council v Australian Native Landscapes (No 2) [2015] NSWLEC 114 Oshlack v Rous Water (No 3) [2012] NSWLEC 132 Category: Costs Parties: Lake Macquarie City Council (Applicant) Australian Native Landscapes Pty Ltd (Respondent) Representation: COUNSEL: P Larkin SC and T To (Applicant) J Robson SC and H El-Hage (Respondent)

SOLICITORS: Long Legal (Applicant) TressCox (Respondent) File Number(s): 40453 of 2014

EXTEMPORE Judgment 1. Last week I published reasons for judgment concluding with proposed orders on which I invited the parties to address the Court: Lake Macquarie City Council v Australian Native Landscapes (No 2) [2015] NSWLEC 114. They have done so today and, except for the issue of apportionment of costs, I have indicated the orders that I will shortly make. 2. Council succeeded but not on all its claims. This is the springboard for the respondent's (ANL's) submission that costs be apportioned so that it only has to pay 90 percent of Council's costs. In a costs apportionment case preparation time as well as hearing time should be taken into account. The principles governing apportionment of costs were reviewed by me in F&D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 and Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70 at [13]-[20], in Brown v Randwick City Council (No 2) [2012] NSWLEC 28 at [7]-[11] by Preston CJ of LEC, and in Oshlack v Rous Water (No 3) [2012] NSWLEC 132 at [63]-[64] by Pepper J. Ordinarily, costs follow the event and the successful litigant receives his costs in the absence of special circumstances justifying some other order. The mere fact that a successful applicant does not succeed on all issues is not sufficient of itself for the Court to depart from the usual rule and instead award costs only with respect to the issues on which he succeeded. However, circumstances may make it reasonable that he bear the expense of litigating issues upon which he has failed. The present case involved multiple issues. In considering apportionment of costs in such cases, a distinction is commonly drawn between those in which there are clearly discrete or dominant issues for determination and those in which the issues are inseparable. 3. Council failed on its land pollution claim, but that claim was a relatively minor part of the case and overlapped with its successful water pollution claim such that it did not in my view raise clearly discrete issues. In the case of its native vegetation clearing claim, Council was successful not to the spatial extent that it earlier claimed but to the much smaller spatial extent that it ultimately claimed, which corresponded with that which ANL ultimately conceded. My impression is that, by and large, it was necessary for Council's evidence to canvass the history of the clearing on the Land prior to as well as after ANL's occupancy in order to work out that for which ANL was responsible, given ANL's pleading that it did not admit to any unlawful clearing. As the evidence unfolded and the parties' experts came to a consensus concerning what clearing should be sheeted home to ANL, the issue of the extent of ANL's native vegetation clearing resolved. Council succeeded on its planning claim but not entirely. There was overlap between the successful and unsuccessful parts. I do not think that the discrete part of the latter was sufficiently substantial relative to the entire case as to warrant a costs apportionment. 4. ANL criticised Council for its 14 year delay in commencing these proceedings following Council's representations in 2000 to the effect that ANL's operation was authorised by the 1986 Consent. Council criticised ANL for not acceding to Council's pre-trial proposal for a stay of orders for a time. I do not consider that either of those criticisms should bear on whether there should be an apportionment of costs. I have earlier indicated I will grant a stay or orders for a time and in reaching that conclusion I have taken into account Council's 2000 and subsequent conduct. 5. Taking into account everything that has been put to me, I am not persuaded that there should be a departure from the usual order as to costs by way of an apportionment. I therefore propose to order ANL to pay Council's costs.