Adams & Anor v Great Lakes Council & Anor

Adams v Great Lakes Council [2010] NSWLEC 14 Adams v Great Lakes Council & Anor (No 2) [2010] NSWLEC 37 CASES CITED: Adams & Anor v Great Lakes Council & Anor (No 3) [2010] NSWLEC 224 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

FIRST APPLICANT Mr S Brockwell SOLICITOR Adams Rave Marsh & Co

SECOND APPLICANT Mr A Monzo SOLICITOR Land and Property Management Authority LEGAL REPRESENTATIVES:

FIRST RESPONDENT Mr I Hemmings SOLICITOR Mallik Rees

SECOND RESPONDENT Submitting appearance SOLICITOR Sattler & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40288 of 2009 Adams & Anor v Great Lakes Council & Anor (No 4)

EX TEMPORE JUDGMENT 1 Her Honour: In Adams v Great Lakes Council & Anor (No 2) [2010] NSWLEC 37 (Adams No 2) I made a preliminary finding that a triangle of land adjoining Kinka Road Seal Rocks was transferred to the Great Lakes Council (the Council) by gazette notice dated 5 June 2009 when Kinka Road, a Crown road, was transferred to the Council. The Minister administering the Crown Lands Act was then joined as a party in the proceedings and a further hearing held. In Adams v Great Lakes Council & Anor (No 3) [2010] NSWLEC 224 (Adams No 3) having received more evidence and further submissions I changed my preliminary finding and determined finally that the triangle of Crown land was not transferred to the Council and remained Crown land in the ownership of the State of New South Wales. As the Minister would not provide owner's consent for the development of the triangular portion of land adjoining Kinka Road the development consent granted to the Second Respondent in relation to it was void. I made that declaration on 12 November 2010.

2 Costs between the Second Applicant and the Council and the Second Respondent have been agreed. The Second Respondent and the First Applicant have agreed that there should be no order as to costs as between them. The only costs remaining for determination are those of the First Applicant who seeks an order that his costs be paid by the Council on a party party basis. The Council argues that each party ought pay its own costs or alternatively that the First Applicant should not be awarded all of his costs. Chronology of events leading up to and during the proceedings 3 A chronology follows: 24 March 2009 - development consent granted by the Council for DA 37/2009 to the Second Respondent, the Council having granted owner's consent for the triangular parcel of land 7 May 2009 - Class 4 summons filed by the First Applicant seeking order that development consent granted by the Council to the Second Respondent was void because there was no relevant owner's consent, inter alia 5 June 2009 - Minister for Lands transfers Kinka Road to the Council 16 December 2009 - Class 4 hearing While judgment was reserved the First Applicant filed a Notice of Motion to reopen the case to adduce into evidence a s 177 certificate under the Crown Lands Act 1989 5 February 2010 - motion was granted 10 March 2010 - hearing on whether s 177 certificate under the Crown Lands Act could be relied upon to prove ownership of the triangular portion and the Court held that it could not ( Adams v Great Lakes Council [2010] NSWLEC 14 ( Adams No 1 )) 25 March 2010 - Adams No 2 handed down with preliminary finding in the Council's favour 22 April 2010 - Minister joined as the Second Applicant 2 August 2010 - hearing on additional evidence and submissions of the Minister, the First Applicant making brief submissions 20 October 2010 - Adams No 3 handed down holding the triangular portion of land was owned by the Crown 12 November 2010 - declarations made that the development consent granted by the Council to the Second Respondent was void and that the State of NSW was the owner of the triangular portion of land. First Applicant's submissions 4 The First Applicant submits that it was the successful party and the usual rule is that costs follow the event, as found in r 42.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). The event for costs purposes is that the Second Respondent's development consent was declared void. These are judicial review proceedings in which the First Applicant was challenging the grant of development consent by the Council on the basis that it could not grant owner's consent in relation to the triangular portion of the land. The consent has been declared void. There is no disentitling conduct of the First Applicant suggesting it should not be awarded its costs. The Council has acted to defend the development consent in seeking to invoke the Court's discretion under s 25B of the Land and Environment Court Act 1979 (the Court Act) having granted development consent when it was not able to give owner's consent in relation to the triangular portion of land.

5 There was no failure of the First Applicant in not joining the Minister from the outset. It is appropriate to limit parties wherever possible to avoid costs. Nor should the Council be awarded its costs of the First Applicant's Notice of Motion in relation to reliance on the s 177 certificate to prove ownership. While the application was unsuccessful that was the catalyst for the Minister to become involved, resulting in the First Applicant being successful in the proceedings.

6 The Council was on notice from mid June 2009 (as per evidence in Adams No 2 at par 7 (vi, vii, viii)) when correspondence from the Department of Lands identified that the land was not in Council ownership but belonged to the Crown. The Council should not have defended the consent so actively in the proceedings, an inappropriate role given its statutory duties as a consent authority as held by Gummow and Gaudron JJ in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 77-78. Council's submissions 7 The Council argues the appropriate order is that each party pay its own costs. The First Applicant did not join the Second Applicant, yet submitted it was appropriate to hear from the Crown in the course of the first hearing. The preliminary finding in Adams No 2 was an event for costs purposes. The First Applicant was unsuccessful in that hearing. 8 Further the First Applicant's involvement in the second hearing was limited. The Minister as the Second Applicant was successful in circumstances where the First Applicant was not. The First Applicant should not have its costs of the second substantive hearing. The fact the Minister does not seek costs is a guiding factor.

9 If the Court does not order that each party pay its own costs, the Council should have its costs of the Notice of Motion dated 21 January 2010 in which the First Applicant was unsuccessful. That evidence could have been obtained before the substantive hearing on 16 December 2010 and should have been dealt with then. Finding 10 The principle that generally the successful party ought be awarded its costs in the absence of disentitling conduct on its part suggests the First Applicant should be awarded its costs as the declaration of invalidity of the development consent it sought was made. As held in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 542 the object of costs orders is compensatory not punitive. The difference between the arguments presented by the respective parties is that the First Applicant asks the Court to look generally at the outcome of the litigation which has resulted in the declaration being made. Conversely, the Council argues the particular steps in the proceedings ought be assessed as in Adams No 1 the First Applicant was not successful and in Adams No 2 the success was that of the Minister.

11 This is a matter where a broad overview of the proceedings should inform the costs discretion of the Court. The First Applicant was a private citizen seeking to challenge a consent which the Council argued hard to maintain on the basis that it was the owner of the triangular portion of land. The observations of Gummow and Gaudron JJ in Oshlack at 77-78, 90 raising concerns about the Council acting as protagonist spring to mind particularly in light of correspondence from the Council's solicitor dated 15 June 2009 seeking the Minister's consent as owner of the land in relation to DA 37/2009 and letters from the Department of Lands asserting Crown ownership in June 2009. This correspondence was generated after proceedings had been commenced by the First Applicant. 12 At the time that development consent was granted by the Council on 24 March 2009, the Council was not the owner of the land on any view despite it purporting to give its consent as the owner of the triangular portion of land.

13 The Council was asking the Court to exercise its discretion under s 25B of the Court Act in circumstances where it was only subsequent to the grant of development consent on 24 March 2010 that the Council could maintain an argument that it became the owner of the triangular portion by virtue of the gazette notice transferring Kinka Road dated 5 June 2009. That gazette notice was after the First Applicant commenced these Class 4 proceedings in May 2009. While the First Applicant was not successful in the preliminary finding made by me in Adams No 2 he was successful overall in the proceedings. 14 The Council's argument that the First Applicant's success was a result of the Minister intervening after the preliminary finding of the Court in Adams No 2 does not undermine the successful outcome of the proceedings from the First Applicant's point of view. He participated to a limited extent in the second hearing and made submissions outlined at [49]-[53] of Adams No 3. I applied some of those arguments in my finding at [92].

15 It is appropriate to consider the First Applicant was successful overall in the proceedings including in light of the intervention of the Minister giving rise to the second hearing. There is no disentitling conduct in the First Applicant not joining the Minister from the outset of the proceedings. Limiting the number of parties in order to reduce costs is an important consideration in litigation of this kind.

16 The Court has wide discretion to craft appropriate costs orders in relation to discrete parts of the case. The Council seeks its costs of the First Applicant's Notice of Motion seeking to reopen the case after judgment was reserved in the first hearing in relation to the s 177 certificate under the Crown Lands Act. The First Applicant was unsuccessful on that motion. That certificate could have been brought forward as part of the substantive hearing in December 2009 as s 177 of the Crown Lands Act has been in place for some time. It is appropriate that the Council's liability for costs be reduced by the amount of costs it incurred in relation to that Notice of Motion as I consider unnecessary costs were incurred as a result of the filing and argument on the Notice of Motion after the substantive hearing had been concluded. A modified costs order in the First Applicant's favour ought be made. 17 Further, the First Applicant's costs of the costs argument ought be paid by the Council as he has been largely successful in that application. Orders 18 The Court makes the following orders: 1. The First Respondent must pay the First Applicant's costs of the proceedings but for the costs incurred by the First Respondent in relation to the First Applicant's Notice of Motion dated 21 January 2010 including the costs of 5 February 2010 and 10 March 2010. 2. The First Respondent must pay the First Applicant's costs of this costs hearing.

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.