Bailey v Oberon Shire Council

Land and Environment Court Act 1979 s56A LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 16 r 4(2) Oberon Development Control Plan 2001 Oberon Local Environmental Plan 1998

ACM Landmark Pty Ltd v Cessnock City Council [2006]; NSWLEC 256; CASES CITED: Aldi Food Pty Ltd v Holroyd City Council (2005) 142 LGERA 141; Bailey v Oberon Shire Council [2006] NSWLEC 815; Grant v Kiama Municipal Council [2006] NSWLEC 70; Telstra Corporation Ltd v Hornsby Shire Council (2006) 148 LGERA 124

APPLICANT Mr C McEwen SC SOLICITOR LEGAL REPRESENTATIVES: Wilshire Webb Staunton Beattie RESPONDENT Mr M Baird SOLICITOR McIntosh McPhillamy & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT ON COSTS 1 Her Honour: In Bailey v Oberon Shire Council [2006] NSWLEC 815 Moore C upheld the Applicant's appeal in these Class 1 proceedings and granted development consent subject to numerous development consent conditions. His ex tempore judgment was delivered on 14 December 2006 and a written judgment was provided to the parties on or about 12 January 2007. 2 The Applicant has filed a Notice of Motion seeking his costs of the proceedings. Costs sought include legal costs, the costs of the court appointed planning expert and the noise expert retained by the Applicant, Mr Cooper. The Council opposes the application. An affidavit of Mr Staunton, solicitor, dated 30 March 2007 was filed which annexed a number of documents referred to by both parties in argument. His affidavit sworn 18 April 2007 was also relied on. 3 Part 16 r 4(2) of the Land and Environment Court Rules 1996 (the Court Rules) provides: No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable. 4 Clause 10 of the Practice Direction 1993 (as then in force) refers to Pt 16 r 4 of the Court Rules and includes: Where in any such proceedings that have been determined by a Commissioner, a party seeks an order for costs pursuant to Part 16 Rule 4, the application should be made by Notice of Motion filed within fourteen days of delivery of judgment. Preliminary objection 5 A preliminary objection has been raised by the Council that the Practice Direction was not complied with. The Notice of Motion seeking costs is dated 30 March 2007, outside the fourteen day period nominated in the Practice Direction from the delivery of judgment on 14 December 2006. 6 In the affidavit of Mr Staunton, solicitor, sworn 18 April 2007 correspondence from the Applicant's solicitors to the Council's solicitors in relation to the negotiation of costs was attached, dated 13 February 2007, 20 February 2007 and 5 April 2007. The Council's solicitors were also advised prior to the hearing in a letter dated 1 August 2006 that the Applicant would seek costs in the event that development consent was granted by the Court because the Council granted development consent to another development application, DA 163/06 on 13 June 2006 which Council staff stated should be considered in the same light as Mr Bailey's DA 170/06. 7 The Applicant argued that no prejudice has been caused to the Council by the delay in filing the Notice of Motion and the circumstances of such delay had been adequately explained. The Applicant's intention was to avoid an unnecessary further hearing. 8 The Council argued there had been insufficient or no explanation as to why the Council failed to file its motion for costs on 30 March 2007. I do not agree. 9 The Council argued that there was prejudice caused to the Council because the period for an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) had expired before the motion for costs was filed. Consequently any challenge to the legal basis of the Commissioner's determination had expired. One of the objectives of the Practice Direction is to achieve finality in the proceedings, including costs before the expiration period of any appeal rights. 10 My understanding of the nature of the prejudice is not that there is a direct legal connection between a decision to appeal under s 56A of the Court Act and the commencement of a costs application by the Applicant. Clearly there is no connection between the two in a legal sense. Rather it is a practical "prejudice" which arises because the Council's decision whether or not to appeal under s 56A in relation to an issue of law was determined on the basis that the proceedings were final including costs. I do not accept that that is a real prejudice in the context of this costs application. 11 As the Applicant has provided adequate explanation for the delay in the commencement in the filing of the Notice of Motion for costs I consider that strict compliance with the Practice Direction is not necessary on this occasion. I will now determine the motion on costs.

Do the circumstances justify a costs order? 12 The subject land was located in the 2(v) "Village zone" within the township of Oberon and the development was permissible with consent and complied with the provisions of the Oberon Local Environmental Plan 1998 (the LEP) and the Oberon Development Control Plan 2001 (the Oberon DCP 2001). The minimum subdivisible area for residential lots pursuant to cl 17(1)(a) of the LEP was 600m2 and each proposed vacant lot exceeded 3000m2 with the lot which was to contain the existing dwelling being 6934m2. 13 The proposal complied with cl 5.4 of the Oberon DCP 2001 which set a minimum 750m2 buffer zone from existing major industry (the Oberon Timber Complex - OTC). The buffer was described as aimed at minimising land use conflicts and avoiding undue interference with the living amenity of residents. 14 On 27 April 2006 the Council's staff recommended approval of the application subject to conditions. On 9 May 2006 the Council refused the development application stating the reason was: There is a potential for land use conflict which could undermine the local and state economy. 15 The Applicant commenced this Class 1 appeal which was heard by Moore C. In his decision granting conditional development consent, Moore C held as follows: The council refused the application, essentially, on the basis of concerns as to whether or not there would be a significant economic impact at some future time if a regulator [such as the Environment Protection Authority (the EPA)] were required to act on complaints from residents (of the new residences which would arise from this subdivision) complaining about noise or airborne particulate emissions from an industrial complex known as the Oberon Timber Complex (the Timber Complex) which is located to the northwest of the site. … I have in evidence an aerial photograph marking the required buffer zones from the Timber Complex - which were adjusted in early 2006 by the council from the previous broad descriptor of a numerical radius to one which now follows a series of property boundaries.

It is clear from that photograph that two matters of relevance arise in these proceedings.

The first is that the site is entirely outside that designated buffer zone. … It is this buffer zone described in the DCP that is called into play as the then council's resolved position with respect to what the development control plan describes as "the objective of minimising land use conflicts and avoiding undue interference with the living amenity of residents by providing a minimum buffer zone around the various elements that are described in the table". … One matter that is clearly relevant in considering whether I should depart from the DCP or not is that discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 where at paragraph 92. One of the matters to which his Honour adverts to [sic] as being relevant in the consideration of development control plans and council policies is consistency in prior decision making.

In that regard, I note from the aerial photograph which I have mentioned as part of the buffer delineation, when coupled with an aerial photograph which was part of the statement of evidence of Mr Nicholas Veale, the manager of Carter Holt Harvey's MDF plant in the Timber Complex, that land in the very near vicinity of the present site has had - at least in the past two or three years at the longest - new residential development permitted on it. In particular, there is new residential development which fronts Parkes Street which falls - as I will turn to shortly - within an area which, subject to the noise limits of various of the elements operating in the Timber Complex, would have greater noise restrictions for receptors at those premises than would be the case for receptors at premises proposed to be erected on the proposed subdivision. In that regard, I am satisfied that there would be, if I am to refuse this appeal, no consistency in the relevant element of the decision making process. … On the issue of noise, I am therefore being asked by the council to reject this subdivision on the basis of a fear of complaint from the three new residences which would be erected on it or, at very worst - as the council would invite me to find, some further re-subdivision being permitted either by the council or by this Court - multiple more residences on that subdivision would lead to the closure of the Timber Complex or significantly contribute to it with a catastrophic impact on the local economy. There are a number of matters with respect to noise that I should address in assessing that probability. The first is that the noise about which complaint would be made is noise which, at least in some of its disaggregated parts, is being unlawfully emitted. The second is that the complaint register shows that over the period that I have referred to, the total number of noise complaints which have been registered through that process is 12. … However, of the 12 noise complaints during the period which is the subject of this analysis, I am unable to find any complaint about noise which appears to arise from any premises located in the near vicinity of the proposed subdivision. Indeed, all of the noise complaints appear to come from the more settled area generally located directly to the south of the complex. It is now appropriate to restate the general proposition that has been used in a number of other proceedings of varying different kinds, that for the Court to be obliged to take account of a fear there has to be some rational likelihood that that fear will be realised and that the consequences of such realisation will be as the person fearing them expects. … I am satisfied that the likelihood of there being complaint is so de minimus as not to warrant consideration - that is complaint with respect to noise. The noise presently generated which gives rise to present complaints is noise which is in breach of operating licences of the EPA. I am of the view that it would be entirely improper for a member of this Court to rely on an unlawful activity to sustain an objection and use such objection to warrant or contribute to the refusal of an otherwise lawful application. Mr Hughes gave evidence that he and his wife experienced no concerns whatsoever about particulate deposition, they having lived at their property since its construction after the 2005 approval was given.

I am satisfied that there is no significant likelihood of complaints about deposition of particulate material arising from this subdivision and the residences which will follow from it. … It follows from all that I have set out that I am satisfied that, although it is in my assessment unlikely that there will be significant complaints of noise or particulate fallout occasioned if this subdivision were to be approved, I am satisfied that those who are afraid of the consequences of such complaints have no reasonable basis upon which to expect that the dire consequences they fear would follow from such complaints would, in fact, occur. Applicant's submissions 16 The Applicant submitted that in this case it is both fair and reasonable that the Council should pay his costs on the following established grounds: (i) that the defence of the appeal was continued in circumstances where the Council, properly advised, should have known that it had no or very poor prospects of success (ii) that the Council acted unreasonably in the conduct of the proceedings (iii) that the defence of the proceedings was in dereliction of the Council's duty as a statutory body and was not conducted on a rational basis 17 These grounds are based on [15(f)], [15(d)] and [15(g)] in Grant v Kiama Municipal Council [2006] NSWLEC 70. 18 The Applicant's counsel submitted that the fear expressed about the potential impact of complaints from residents on the future operation of the OTC by the Council was both irrational and without evidentiary foundation and the findings of Moore C support that submission. 19 The Council's reliance on the evidence of Mr Veal of the OTC in which he claimed that the establishment of additional residential development in proximity to the OTC would lead to complaints which might affect the viability of the OTC, was unsubstantiated. Similarly the statement of Mr Thomas Murphy, economics expert, that a land use conflict may occur which might threaten the viability of the OTC, which was critical for the economic sustainability of Oberon and the state economy was not a matter given any weight by Moore C. It is clear from Moore C's judgment (see par 15 above) that he did not consider there was any substantiated issue in relation to noise or dust. 20 The Council did not challenge the evidence of Mr and Mrs Hughes, whose home is adjacent to the subject land and who obtained approval to erect their dwelling in August 2005 without any requirements for special acoustic or other environmental treatment to the dwelling being imposed by the Council. They made no complaint in relation to noise or dust. 21 The court appointed town planning expert, Mr Fletcher, who supported the proposal subject to the imposition of certain conditions to ameliorate noise and dust, was not cross-examined or challenged by the Council. No contrary planning evidence was presented by the Council. 22 Another failure by the Council was its non-disclosure that prior to the receipt of the Applicant's development application and up to the date of the hearing it was negotiating with the Department of Lands to purchase Crown land immediately adjacent to the subject land for the purpose of residential subdivision. That land was subject to greater noise restrictions than the land owned by the Applicant and was more likely to result in a breach by the OTC of the licence requirements as it was not adjacent to a main road and was therefore subject to a 5 dB penalty (see affidavit of Mr Staunton sworn 30 March 2007). 23 The Applicant submitted the Statement of Issues filed by the Council did not contend that the subject land was unsuitable for residential development by reason of noise or dust impacts. In response to a request for particulars, the Council subsequently asserted to the contrary but stated that its evidence would comprise the following: Council relies upon the representations and submissions made by and on behalf of the operators of facilities within the Oberon Timber Complex. Council has not, itself, taken levels. 24 The Council did not call any acoustic evidence against the proposal until such time as the Applicant sought to adduce evidence from Mr Cooper regarding suitability of the site. The Council then relied upon Mr Sleeman, who agreed that: (i) Existing dwellings were more affected than the subject land (ii) The basis for complaint was related to breach of licence controls by OTC (iii) The land proposed to be acquired by Oberon Council was more affected than the subject land (iv) The noise giving rise to complaint is noise which is in breach of operating licences of the Environment Protection Authority 25 Numerous dwellings (more than 100) were located within the major industry buffer zone, and in the three year period prior to 9 May 2006 the Council had approved residential dwellings adjacent to the buffer zone in circumstances indistinguishable from the subject development application. 26 On 13 June 2006 the Council approved a four lot subdivision in proximity to the buffer zone in circumstances where almost identical objections had been raised and where the Council's attention was drawn to the similarity with the circumstances of the subject application. 27 In light of the above, the Applicant argued that the Council, properly advised, should have known it had no or very poor prospects of succeeding on the appeal against its refusal to grant consent (Grant [15(f)] and Telstra Corporation Ltd v Hornsby Shire Council (2006) 148 LGERA 124 at [41] and [43]). Moore C found that the adverse effects claimed by the objectors (OTC) were unsubstantiated and without reasonable evidentiary foundation, see Telstra [41], [43]. The Council had a statutory responsibility to evaluate the reasonableness of objections received by it and failed to undertake that task (Telstra [42]). The Council was on notice from at least 13 November 2006 that the court appointed planning expert entirely supported the proposal and consequently should have entered into consent orders. In doing so this still would have provided to the objectors the opportunity to be heard in any hearing about whether consent orders ought be issued. 28 The fears expressed by the OTC objectors were without rational or justified foundation and this would have been apparent to the Council if it had objectively analysed the submissions made by OTC as it was obliged to do. The Council should have been aware from its own approvals of similar development applications prior and subsequent to the refusal of the subject development application that it would be likely to result in a finding of inconsistent conduct. For these reasons it is both fair and reasonable that the Council should pay the costs of the Applicant including the costs of this motion.

Council's submissions 29 Talbot J in Aldi Food Pty Ltd v Holroyd City Council (2005) 142 LGERA 141 at [5] was relied on. 30 The Council argued that the circumstances of this case were unlike the circumstances of Telstra. In Telstra the Court held: "that the adverse effects claimed by the objectors were unsubstantiated and without reasonable evidentiary foundation. The absence of probative evidence must have been known to the Respondent. The objectors' concern related to measures which were capable of measurement and testing against established standards. 31 The Court held that the expert evidence in relation to the actual impacts of electromagnetic emissions was all one way, namely that, that there would be no adverse health or biological effects caused by exposure to electromagnetic emissions from the proposed mobile base station. The Court held that there was no probative evidence of such effect and thus (at [37]: The Respondent's conduct in maintaining opposition in the face of this expert evidence was unreasonable: see ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256 at [93]. Costs were awarded against the Council in those circumstances. 32 In ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256 (ACM) the Applicant successfully appealed against the Council's deemed and actual refusal under s 96(1A) of the Environmental Planning and Assessment Act 1979 of an application for modification of a development consent for a crematorium. Preston CJ noted that all "the expert evidence was one way, and that was in support of the modification application", at [61]. The Council was invited to agree to consent orders, but chose to continue its opposition to the appeal. Further, all issues raised in the Council's Statement of Issues were ultimately resolved against it, [62]. 33 The Council had raised the issue of residents' concerns relating to a heightened sense of morbidity that would be caused by an increase in use of the crematorium. However, Preston CJ noted that this issue was not precisely set out in the Council Statement of Issues, see [80] - [82], [89]. Preston CJ noted that this contravened the Land and Environment Court Rules 1996 and Practice Directions and that "the manner in which the issues were articulated does not enable the applicant in this case to know that the primary issue that it had to meet on this appeal was the issue of morbidity", [83]. 34 Further, the Pre-hearing Practice Direction required that the nature and extent of alleged adverse environmental impact upon amenity "must be clearly identified and, where practical, quantified". The impact on amenity caused by the morbidity issue was not clearly articulated, see [85]. Also, "Commissioner Watts found the residents' concerns did not have a real or sufficient basis in fact", see [69]. Preston CJ found the Council had acted unreasonably and ordered it to pay the Applicant's costs. 35 The Commissioner's findings and consideration of the evidence in relation to noise and dust is not determinative of whether costs are payable. The issues in the case are not ones of scientific evidence as identified in Telstra, rather these reflect different perceptions of potential consequences of approval of the development. ACM was also distinguishable on its facts. Costs were awarded against the Council in that case because the Council's case ultimately relied on an issue that was not raised in its Amended Statement of Issues, inter alia. In this matter, the issue of land use conflict was clearly identified from the outset. 36 The Council had the benefit of the lengthy submissions on behalf of Jeld-Wen Fibre of Australia (dated 21 March 2006) and Moray and Agnew, solicitors, on behalf of Carter Holt Harvey Wood Products Australia Pty Ltd (dated 23 March 2006). These are two of the businesses operating in the OTC. These submissions identified two significant issues being: (i) concern about the long-term viability of the business operation and in turn the greater public interest in terms of sustainable employment and economic benefits, and (ii) concern for the wellbeing of prospective purchasers of the property and residents on the land. 37 Specific issues raised in the submissions were the role of buffer zones, noise and dust. Buffer zones were not the complete answer to any land use conflict issues between OTC businesses and residential areas because they can never stop noise and dust intruding beyond the buffer zone. 38 The Council planning report which dealt with these matters stated as follows: The issue of conflicting land use and appropriate planning is becoming increasingly important as incompatible development in close proximity to the industry creates greater difficulties for industry in meeting legislative requirements and pollution licence conditions in regard to industrial emissions. The Department of Environment and Conservation (DEC), in previous submissions to Council, have stated that the encroachment of residential development could make their role of regulating noise from existing industry much more difficult and may limit potential for further industrial expansion. 39 The development application came before the Council from its planning department with a recommendation for approval as a deferred commencement approval. It was refused on 9 May 2006 for the reason that there was potential for land use conflict. 40 On 13 November 2006, Lindsay Fletcher provided a report as court appointed expert dealing with planning matters. It should be noted that his preliminary conclusion was in the following terms: Having regard to all of the above, it is my preliminary view, based on the information available to me, that the proposal is generally acceptable from a town planning viewpoint. However, I do consider that a precautionary approach should be adopted in the absence of specific data and specific expert analysis of the noise, dust and odour nuisance likely to be experienced at the proposed residential property. Accordingly, I would support conditions of approval aimed at both alerting future owners/occupants of the potential for adverse amenity impacts arising from its proximity to the existing and future industrial development, and in mitigating those impacts for construction measures for future dwellings as outlined in the conditions recommended by council officers. 41 With respect to the current application for costs the Council submitted the Court should find: (a) The clear issue was the potential impact that increasing residential density would have on the OTC as a result of potential noise and dust complaints; (b) This issue was clearly raised in the Statement of Issues and during the hearing; (c) The Council at the time of its determination had the extensive submissions of two of the OTC operators which included a map showing that dust emissions from the OTC fell on the area the subject of that subdivision application; (d) Noise and dust emissions were both identified as problems; (e) The court appointed expert also recommended conditions of consent to deal with these matters (these were opposed by the Applicant); (f) The evidence from Mr and Mrs Hughes and the concurrent evidence of the experts led to the Commissioner forming his conclusion on the merits; (g) The issue was the potential impact of the development on the OTC and as a consequence the community of Oberon. 42 The Council submitted that because the objectors were businesses within the OTC who had actual experience of the operation of the facilities, the grounds for the issue identified in the Statement of Issues was rational and reasonable. In particular exhibit G in the Veale report included a plan showing dust spreading over the subject site. There was a meeting with Council and OTC business representatives on 5 April 2005 concerning noise issues. The minutes of that meeting record there were occasional non-compliances with licence and development consent conditions at some locations. The buffer zone specified in the DCP is the focal point of consideration but is not necessarily determinative. There was evidence about land use conflict which meant this issue had a rational basis. There can be no suggestion that there were no, or very poor, prospects of success or that there was any dereliction of the Council's duty. Nor had the Council acted unreasonably in the conduct of the proceedings. It did not cause delay or act in any way that prolonged the proceedings; Grant v Kiama [15(d)(i) and (ii)].

Finding 43 Part 16 r 4(2) is set out above. As stated by Talbot J in Aldi Foods at [5]: The Rules make it plain that the approach to an application for an order for costs in class 1 proceedings is fundamentally unchanged from the historical position to the extent that the underlying principle is that there will generally be no order as to costs. Accordingly, unless it is in the circumstances of the particular case otherwise fair and reasonable, the Court will approach the exercise of its discretion on the basis that parties are to remain confident they may commence or defend proceedings without the onerous threat of incurring liability for costs other than their own, even if they are not the successful party. In other words costs will not be awarded in the proceedings referred to in Part 16, rule 4 unless it is fair and reasonable to depart from the underlying assumption in the circumstances of the particular case. Reasonableness is to be determined according to the ordinary sense of the word. The award of costs has to be fair as well as reasonable. Thus not only must it be reasonable for costs to be awarded but it must also be just and equitable. 44 The Applicant has raised a number of bases on which he argues costs ought be payable contrary to the usual practice and rules of this Court in Class 1 proceedings. There is some overlap between these arguments. Dealing firstly with whether the proceedings were not conducted on a rational basis and in dereliction of the Council's responsibility as a statutory body, the issue of land use conflict between residential development and the OTC is clearly a relevant planning matter for the Council to consider in the context of this case. That is clear from the planning report of the Council staff for the 9 May 2006 Council meeting particularly in relation to the role and operation of the buffer zone around the OTC. The operation of the OTC and properties immediately outside the buffer around the OTC is a matter which could be legitimately raised as a planning issue in the context of the economic impact on the Oberon community if greater complaint resulted from residential properties which did impact on the OTC's long term viability. The buffer is a minimum distance and is not a physical barrier able to stop noise and dust emissions passing beyond it. 45 There was an uncontradicted statement of evidence of Mr Tom Murphy, CEO of the Western Research Institute, Charles Sturt University, concerning the likely economic harm to the Oberon community if the concerns of the OTC operators were realised and increasing complaints led to increasing compliance costs and possibly long term plant closure. The Council's reliance on the issue of land use conflict was not irrational. I do not consider the Council raising this issue in these proceedings is in dereliction of its statutory duty in relation to the Oberon community. These circumstances are not analogous to those in Telstra which concerned lack of any scientific data to support the residents' views the Council presented in that case, inter alia. Nor are they similar to ACM as they are not concerning an irrational fear not identified in the Statement of Issues.

46 The Applicant also argued that the Council, properly advised, should have known that it had no or very poor prospects of success. This is also linked to the ground raised that the Council acted unreasonably and I will consider these together. The issue is encapsulated by asking as the Applicant did in submissions whether the Council had an argument or an arguable case on the issue of land use conflict. It is clear from the judgment of Moore C, set out in part above in par 15, that the Council did not succeed in demonstrating by its evidence there were any incompatible land use effects in relation to noise and dust likely to arise in the future if this development application was approved. That evidence at the commencement of the Class 1 appeal was solely based on OTC businesses' submissions. These submissions were not from independent experts but industry representatives raising concerns about potential dust and noise impacts beyond the buffer. There was a plan showing dust dispersion outside the buffer zone which included the Applicant's land. Only once proceedings had commenced and the court appointed planning expert had provided a report was a noise expert engaged, but that was by the Applicant. The Applicant sought to rely on a noise expert to respond to the court appointed expert's report recommendation that conditions related to noise attenuation were needed as a precautionary measure. The Council then also called a noise expert. Ultimately those experts agreed that noise issues were not a concern, see par 24, in summary of Applicant's outline of submissions. 47 The nub of the issue is whether it was reasonable for the Council to rely solely on OTC business submissions and evidence on the issues of noise and dust. The objections of Jeld-Wen dated 21 March 2006 and Carter-Holt Harvey Wood Products Australia Pty Ltd written by their solicitors Moray & Agnew dated 23 March 2006 were relied on by the Council in argument. The solicitor's letter while lengthy and detailed essentially sets out instructions received by the solicitor. After proceedings were commenced, the Applicant's solicitor asked whether the Council contended that existing noise or dust levels suggested that development ought not be granted. The Council's solicitor's response dated 11 October 2006 stated that "objections raised by the representatives of businesses within the OTC including industry experience" were relied on and that Council had not itself taken any levels. At the hearing the Council relied on an affidavit of Mr Veale, facility manager of MDF Plant owned by Carter Holt Harvey Wood Products. Little weight was attributed to that evidence by Moore C as identified above in par 15. 48 The Council did not undertake its own independent analysis or have before it any independent data about noise and dust impacts at the time it made its decision on 6 May 2006. That is clear from the planning report by the Council's staff prepared for that meeting, which refers on page 5 to not having received from the OTC an independent acoustic report. The report also refers to the fibre fallout issue (dust) as not being quantified and states that it is the responsibility of the OTC to effectively manage and control. There is no evidence that the Council checked the OTC complaint register which was before Moore C and which he analysed in relation to twelve complaints finding that none came from the area near the Applicant's land. 49 The Court appointed expert considered that the proposal was generally acceptable from a town planning viewpoint, see par 37 above for the passage relied on in the Council's submissions. He also noted that there was no specific data or expert analysis of noise and dust. He supported conditions aimed at alerting future owners/occupants of the potential for adverse amenity impacts and measures aimed at mitigating measures in relation to impacts which might arise. The parties and the Court are not bound by the views of a court appointed expert, whose role is to assist the Court in its deliberations, not to be a substitute for the Court. The fact that the court appointed expert so concluded does not alone suggest the Council acted unreasonably. That is a matter to consider in the overall circumstances of the conduct of these proceedings.

50 Related to the failure to undertake an independent assessment is another issue raised by the Applicant, that the Council has acted inconsistently and unreasonably because it refused consent for the development application in these proceedings yet approved a number of similar development applications for residential development just outside the buffer zone. The Council's planning report for another DA for residential development on land immediately outside the buffer zone, assessed by the staff on the same basis as the Applicant's DA and approved by the Council, is attached to Mr Staunton's affidavit of 30 March 2007. The Applicant's next door neighbours, Mr and Mrs Hughes, gave evidence at the hearing that they had no complaints about noise and dust. They were granted approval to build a house by the Council in August 2005 without any requirement for special measures in relation to noise or dust. Moore C stated in his judgment that "land in the very near vicinity of the present site has had at least in the past two or three years at the longest new residential development on it." 51 A council is not always bound to follow previous planning decisions and can act in a way that may appear inconsistent. For example, it may become aware of additional information/data or adopt new policies which means it is a responsible decision to change the exercise of its planning discretion. Inconsistency alone does not suggest unreasonable behaviour by the Council unless there is no clear policy reason, supported if necessary by data/information, to confirm and justify that change. In this case that date/information was lacking. Close scrutiny of the evidence by Moore C resulted in a conclusion that there was no likelihood of noise complaints resulting from this development and that the fear of such complaints was not justified. In relation to dust, Moore C concluded that there was no significant likelihood of complaints about deposition of dust from this subdivision. Overall he considered that there was no reasonable basis for the fear of increased complaints. Inconsistency is a matter to consider in the overall context of these proceedings. 52 I do not consider it is relevant to this costs matter that the Council was negotiating to purchase nearby Crown land, possibly for residential zoning. 53 In conclusion, I must consider whether the usual rule that each party pay its own costs be varied in this matter. I have broad discretion, to be exercised judicially, to determine if and how costs ought be paid. The findings of Moore C suggest that the Council's case had poor prospects of success in the absence of any independent data and analysis about noise and dust impacts undertaken on behalf of the Council or the OTC. In light of those findings I consider the circumstances of inconsistency of decision-making and the conclusion of the court appointed expert justify the Council paying some costs, but not all the costs of the proceedings, and that such an order is fair and reasonable in the circumstances of this case. I have held at par 45 that the Council has not acted irrationally or in dereliction of its statutory duty, but consider it should have done more to validate the OTC businesses' claims in relation to impacts of noise and dust beyond the buffer zone in order to ensure it had good prospects of success rather than depending on the OTC evidence before the Commissioner. 54 Once the report of the court appointed planning expert dated 17 November 2006 was received it appears that consent orders could and should have been considered by the Council at that point. If there were objectors who wished to give evidence in relation to whether or not the Court should accept and make those consent orders, such as objections from businesses in the OTC, that could have been dealt with in the consent order process. I therefore consider that the Council should pay the Applicant's costs from the date of that report, and so order. As the Applicant has been partially successful in his motion, he should have his costs of the motion also paid by the Council.

Orders 55 The Court orders that:

1. The Respondent Council is to pay the Applicant's costs of these proceedings from 17 November 2006.
2. The Respondent Council is to pay the Applicant's costs of the Notice of Motion dated 30 March 2007.

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