Beilby v Viney Pty Ltd & Anor

Land and Environment Court (NSW)|1997-03-26|Before: Sheahan J, Bignold J, Mr P, Cowdroy J

These proceedings were the second case brought in Class 4 of this court's jurisdiction by this applicant against the respondents. In both sets of Class 4 proceedings, the issues concerned the state of repair of the access road and the construction of the dam .

During an inspection by Hornsby Council on 24 November 1997, it was discovered that the respondents had placed some fill on their land, with the consequence " that a dam/lake had been established . No consent had been granted for either the fill or the dam ".

A development application was submitted on behalf of the respondents in respect of the construction of " a dam " in December 1997.

On 18 May 1998, the Mayor of Hornsby wrote to Epov requiring him to provide the necessary environmental assessment of the " unauthorised landfill and dam construction " said to have been carried out (p64 of Exhibit A1 ): without regard to relevant environmental and planning legislation … Council will not allow the landfill to remain in any location on the land without the necessary environmental assessment and determination. As previously advised by Council officers, you are required to provide the necessary environmental assessment of the landfill in order for Council to assess DA636/97, and in particular, any environmental impacts of your unauthorised dam construction.

Matter 40037 of 1998 was commenced by the applicant in March 1998, and resolved between the parties on 29 July 1998. By consent, the court ordered that the proceedings be dismissed , but went on to note an agreement between the parties in the following terms: A. The respondents agree, within two months of the date hereof, to restore the right of carriageway created by registration of DP 856350 to a good and workmanlike standard to the reasonable satisfaction of Mr R M McCotter of ERM Mitchell McCotter to be undertaken at a cost of no more than $4,000. B. The respondents to pay the applicants costs assessed and agreed in the sum of $2,000 within 28 days. C. These terms are not to be disclosed by either party. D. The respondents shall instruct ERM Mitchell McCotter to prepare a Management Plan for the remediation and stabilisation of the dam wall and the adjoining land below the dam wall on lot 2 DP 856350 for submission to Hornsby Council as soon as ERM Mitchell McCotter is able so to do. E. The respondents shall lodge the Management Plan with Hornsby Council and shall undertake any approved works as directed and or agreed between Council and themselves within a reasonable time or such time as is agreed between council and the respondents.

Following that settlement, the respondents engaged Georgette Constructions Pty Ltd as " works manager ", and Gough sent to Rigg on 8 October 1998 " various quotations for the rectification works relating to the right of way ". Georgette advised Epov that there were four options to bring the right of way up to an acceptable standard and recommended option 3. Georgette approached 12 suitably qualified contractors, and suffice it for present purposes to note that none of the quotations was close to the specified figure of $4,000. Those abstracted in the documents range from $6,500 to $12,500.

Rigg proposed, in response to Gough, a variation to what he consistently refers to as the " consent orders ", but communicated his instructions that the applicant was " prepared to accepted responsibility for the restoration work subject to your client providing a cheque in the sum of $4,000 ".

Gough advised Rigg on 19 October 1998 that the respondents were agreeable to that proposal " as long as the driveway is rectified to the standard required by Bob McCotter ".

Rigg responded on 23 October suggesting that McCotter be required to sign off at completion of the works that the work carried out by Rigg's client is a " restoration carried out in a workmanlike standard ". The applicant wished to remain responsible for normal wear and tear, but would look to the respondents for contribution only to damage beyond that.

McCotter provided a preliminary report on the road on 25 November 1998.

These proceedings were commenced during November 1998, claiming the following substantive relief: 1. A declaration that the First Respondent and Second Respondent herein have failed to comply with the Consent Order Agreement in proceedings 40037 of 1998 made on 29 July 1998 in this Honourable Court. 2. An order that the First and Second Respondents herein comply forthwith with the terms of the Consent Order Agreement made in proceedings no 40037 of 1998.

On 30 November 1998, Gough wrote to Rigg, in response to the originating Class 4 application, submitting that: …the Land & Environment Court has no jurisdiction to enforce the Agreement referred to in your Application. Unless we receive advice from you of your intention to discontinue these proceedings, we are instructed to move the Court to strike out your client's Application . (emphasis added)

On 30 November 1998, Gough also provided Rigg with an advising from McCotter of the work that would be required to rectify the right of way, and commented: It would appear that the work required to rectify this area is substantially greater than originally anticipated.

Would you please confirm your client is agreeable to such works being undertaken with our client's contribution of $4,000.00 to enable the appropriate arrangements to be made.

On 4 January 1999, Hornsby Shire Council approved the respondents' development application for the dam.

The consent for the dam (636/97) included a deferred commencement condition, pursuant to the then s 91AA of the Environmental Planning & Assessment Act 1979 (" EP&A Act "), requiring that a " suitably qualified Chartered Civil Engineer " complete a report " indicating the proposed dam is or will be structurally stable for the materials, batter slope and anticipated surcharges… The report is to include a plan indicating dam materials, long sections and cross sections. The report shall also address trees planted within the dam embankment and provide advice as to whether the trees may affect current and future stability ".

It is to be noted that this deferred commencement condition did not state that such report had to be submitted to Council, but it was to be completed within 3 months of the date of approval, otherwise the consent would lapse. In the event, the respondents chose to submit to Council a report from McCotter. The other conditions of the consent are to be found at pp 35-36 of Exhibit A1 .

There was then some correspondence between Gough and Rigg about amending the Class 4 application, and Gough consented on 10 March 1999 to the filing of an amended application claiming the following substantive relief: 1. A declaration that the First Respondent and Second Respondent herein have failed to comply with the Consent Order Agreement in proceedings 40037 of 1998 made on 29 July 1998 in this Honourable Court. 2. An order that the Respondents be restrained from acting on the development consent to Development Application No 636/97, granted by Hornsby Shire Council on 4 January 1999. 3. An order that the Respondents lodge with Hornsby Shire Council a Plan of Management prepared by a suitably qualified Chartered Civil Engineer with respect to the remediation and stabilisation of the dam wall and the adjoining land below the dam on Lot 2 DP 856350. 4. An order that the Respondents lodge the Plan of Management with Hornsby Shire Council and undertake any approved works as directed and/or agreed between Hornsby Shire Council and the Respondents within a reasonable time or such time as is agreed between the Respondent and Council.

On 30 March 1999 an application was made pursuant to s 96 of the EP&A Act to amend the dam consent, and an amended consent issued on 17 May 1999, the only material amendment being an increase in the period stipulated in condition 1, from 3 months to 6 months .

McCotter submitted his report on the dam wall stabilisation on 18 June 1999 ( Exhibit A1 , fol 82ff). It concluded that: Once the remedial measures, described above are undertaken, the dam stability would be adequate for this type of structure.

The report was signed by ERM Mitchell McCotter's Senior Hydrogeologist, Peter Beck.

The solicitor for the Council (" McKee ") had an on-site meeting with the applicant, and then wrote to Gough, indicating that he had been " provided " with a copy of McCotter's report of 18 June 1999, and that he would have it reviewed by Council's environment officer.

On 29 June 1999, the McCotter report on the dam was submitted to Council's Environmental Scientist (Water Quality), who was asked to " advise whether this is satisfactory as a management plan or, if not, what additional information should be provided e.g. time frame ".

On 1 July 1999 the development engineer at Hornsby Council expressed little difficulty with the McCotter report of 18 June 1999 and suggested some details. On 5 July 1999 the Environmental Scientist raised a couple of queries, but no serious difficulties, with the McCotter report.

However, McKee provided no further feedback to Gough until 1 October 1999 when he sent copies of the two memos from those Council Officers.

Epov swore an affidavit in October 1999, saying that prior to the receipt of those memos by his solicitors, Hornsby Council had not indicated to him that any additional information was required with respect to the Report (or Plan of Management) prepared by McCotter.

McKee's letter of 7 October to Gough referred to " Council's concerns " in respect of the construction and use of the dam, in view of McCotter's identification of a potential risk ( Exhibit A1 , fol 22): Should [the dam] fall it would cause significant sedimentation flows through the Tall Open Forest and into the Tunks creek. This is likely to introduce exotic species into relatively pristine parts of the Tall Open forest.

Our client has identified certain works which should be carried out in the short term (within 21 days) to minimise the risk of any dam failure.

In the short to medium term we understand your client can provide Council with a remediation plan, specifying works and a timetable within which those works will be carried out in approximately 12 weeks. On the completion of the remediation works DA636/97 will operate.

McKee's letter also said that the McCotter report of 18 June 1999 could not be considered a " report completed by a suitably qualified Chartered Civil Engineer. …", as required by condition 1 of the s 91AA consent, but it went on to detail some short term or immediate works. The letter noted that a substantial part of the dam had been constructed without Council approval.

On 13 July 1999, Gough wrote to Rigg saying, inter alia ( Exhibit R1 , fol 80): Our clients are and have always been agreeable to your client rectifying the right of way in accordance with Mr McCotter's reasonable requirements and in accordance with the agreement reached between the parties.

We note also that our clients have now received approval of the Application to complete construction of the dam. In accordance with that Consent, our clients have lodged with Council a Report from Mitchell McCotter and shall undertake the approved works within a reasonable time as provided in the agreement.

As previously indicated to your Mr Rigg, we do not understand your client pursuing this action either at its inception or at the present time. We would strongly recommend that your client discontinue these proceedings as we are satisfied that at the hearing, the Orders sought will not be made having regard to the action that has been taken by our clients.

Rigg replied on 28 July 1999 ( Exhibit A1 fol 25ff) proposing a resolution of both the dam and road matters. In respect of the dam, Rigg complained that the respondents failed to retain McCotter until after they received the development consent in 1999, and that the so-called " Plan of Management " proposed works which related only: …to the dam wall and nothing is said about the remediation of the land below the dam wall. Even though a development consent was granted in January this year, no work of any stabilisation or remediation of any kind has commenced. It appears that the Council's development consent may or may not be acted upon. Without orders of the Court, our client believes nothing will be done by your client. Our client will also wish to obtain his costs in relation to the current proceedings and we look to your confirmation such is agreed.

If your client is prepared to enter into a consent order of some kind to ensure that such work will be done within a certain time, we anticipate being able to get instructions to such a course. If a consent order is unacceptable to your client, we see no alternative other than to proceed to a hearing in this matter.

On 29 July 1999 ( Exhibit R1 , fol 86f), Gough expressed the view to Rigg that the respondents had " always been of the opinion that the dam and its environs are a matter between our client and Hornsby Council ". In that letter Gough also expressed concern that there was no timetable for the work required.

Gough's letter again recommended that these proceedings be discontinued, and indicated the respondents were not prepared to pay the applicant's costs. He even suggested that he had been instructed to seek an order for costs if the matter went to a hearing. He outlined that he would be making the following general submissions:

The agreement between the parties is not an order of the Court. 2. The Land & Environment Court has no jurisdiction to deal with your client's application. 3. Our client for all intents and purposes has complied with the terms of the agreement. The cheque for $4000 referred to above is available to be forwarded to you or your client immediately upon your request.

In the event, these proceedings were resolved on 11 October 1999 with the making of the following consent orders: 1. The Respondents shall pay the sum of Four Thousand Dollars ($4,000.00) within fourteen (14) days into the trust account of the Applicant's solicitors. Such money shall not be released from the said trust account to the Applicant until the Applicant has restored the right of carriage created by registration of DP 856350 in a good and workmanlike standard to the reasonable satisfaction of ERM Mitchell McCotter and in the event of any dispute concerning such 'reasonable satisfaction' that matter be referred to the President of the Institute of Engineers or the President's nominee for determination. The Applicant shall carry out the restoration work to the right of carriage to the above standard within a reasonable time. 2. The Respondent's shall complete the development of the dam and associated environ works in accordance with the Development Consent 636/97 granted by Hornsby Shire Council on 4 January 1999 and any reasonable directions issued by the Council associated with the said Development Consent within six (6) month of these orders.

On 25 October 1999, McCotter wrote to Gough, disagreeing with the suggestion that his company's letter of 18 June 1999 " did not constitute the report required to satisfy condition one ". He went on to review the short term and permanent works requested, and concluded that Council's requirement for two phase construction was unreasonable, and the projected length of time to carry out interim works was manifestly impractical. He advised that the Council's solicitor (McKee) be provided with a copy of the letter and that a meeting be held with Council staff to finalise details of the spillway works.

On 26 October 1999 Gough sent that letter on to McKee, noting that: the Consent issued by your client Council did not contain any periods in which the works were to be undertaken other than advice that the Consent would lapse after five (5) years.

Having regard to the comments of Mr McCotter we are of the opinion that the additional requirements of your client Council fall outside the consent issued.

It would appear that the suggested on-site meeting was held, the matter was resolved, and all works were completed by 1 February 2000.

When Class 4 proceedings are concluded, costs usually " follow the event ", with the " event " which determines entitlement to costs being one party's " success " in the proceedings.

The power to order costs is a discretionary power normally exercised after a hearing on the merits, with the general rule that the successful party is entitled to costs. When there has been no hearing on the merits, the court is necessarily deprived of the factor which usually determines whether or how it will make a costs order. In circumstances where there has been no hearing on the merits, and there remains no will to proceed with the action, the court, in determining the question of costs, cannot embark on a hypothetical trial of the action between the parties. ( Latoudis v Casey (1990) 170 CLR 534, Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, Re Minister for Immigration & Ethnic Affairs v Ex parte Lai Qin (1997) 186 CLR 622).

If it appears that both parties have acted reasonably in commencing and defending the proceedings, and the conduct of the parties continued to be reasonable until the litigation was settled, or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings. ( Lai Qin at 625).

The Court Rules, in Part 15, Rule 7, provide as follows:

The Court may order the respondent to pay the costs of the proceedings where a respondent satisfies or causes to be satisfied the claim of the applicant after the proceedings have been commenced.

In Hayden Theatres Pty Ltd v Penrith City Council & Anor (1998) 105 LGERA 230, Bignold J found no unreasonable conduct by either the applicant or the respondents, and analysed closely the terms of the orders. His Honour determined that it was impossible for him to conclude that the outcome had " satisfied " the applicant's claim within the meaning of the Rule.

In Leichhardt Municipal Council v Jeffrey & Ors [1998] NSWLEC 143, on the other hand, His Honour found that the circumstances enlivened the power in Rule 7.

In Port Stephens Shire Council v Grivas & Ors [1999] NSWLEC 135, Bignold J dealt with a claim by the Council that it had been (par 3):

entirely successful in the proceedings inasmuch as relief granted to it by the consent orders, being the prohibitory injunction, entirely vindicated the Council's claim to injunctive relief as set forth in the original class 4 application … the Court should regard the outcome in the litigation, albeit one made by consent orders, as an outcome wherein the Council was the victorious party…

His Honour analysed the conduct of the parties to the proceedings and then said (par 24-25):

In my opinion, the Council's conduct in litigation was reasonable, both in commencing the litigation, given the long history of the matter in dispute, and in sustaining it. Clearly, the Respondents' willingness to settle the case indicated an acknowledgment by the Respondents and the Respondents' legal adviser that the case made against them was a formidable one. I do not need to say more of the case than that, but I should say this, that the submission made by Mr Moore that in the circumstances, the offer of settlement should be regarded as having been made without admissions of liability and without prejudice to the question of ultimate liability cannot be sustained. The inevitable inference to be drawn, both from the comparison of the orders made by consent and the claims to relief made by the Council in its originating process as amended , together with the supporting documentation that has been introduced into evidence, leads the inevitable inference that the Respondents, in suffering the injunction to go against them, acknowledge the strength of the Council's case. No more need be said about that because as the authorities indicate, it is not appropriate in a disputed costs application to hypothesise or speculate as to what would have happened but for the settlement.

This is a settlement which manifestly vindicates the Council by giving it all of the relief that it claimed and in those circumstances, it appears to me to be irresistible that the appropriate principle to apply is to regard the Council as having been victorious in the litigation. As such, and not being guilty of any misconduct in the litigation or otherwise guilty of any disqualifying conduct, it ought to receive the usual order for costs as the victorious party in the litigation.

In Marrickville Council v Syfurn Pty Ltd & Ors [1999] NSWLEC 71, Bignold J said (at par 27): It is simply not to the point for the Court to speculate or to opine as to how the Court's discretion to grant or to withhold injunctive relief claimed in quest of enforcement of a breach of the Environmental Planning and Assessment Act 1979, would have been exercised, now that the proceedings have been regularly concluded by the consent orders that the parties collectively invited the Court to make.

In Thomson v Mosman Council & Anor [1999] NSWLEC 86, the dispute between the neighbours Thomson & O'Neil was settled by mediation and they agreed as between themselves that each would pay his own costs. The two respondents also agreed as between themselves that each would pay his or its own costs. The only issue remaining to be resolved by the court was the question of costs as between Thomson and the Council.

I followed the authorities which precluded my analysing the evidence to arrive at what Bignold J described in Jan Yee Australia Pty Ltd v Woollahra Council & Anor (40232 of 1995, 26 March 1997) a " reasonable prognosis of the fate of the litigation had it been fully litigated ", and I adopted the test he formulated in that case for making a costs order, namely that the Trial Judge should ask the question whether " the proceedings were justifiably commenced, justifiably continued, justifiably settled and in all probability would have succeeded…. had they been fully litigated ".

I proceeded, with the parties' concurrence, to look through the evidence, some of which may have been the subject of objection at a hearing, and then to analyse authorities relevant to the subject matter of the proceedings as defined by the Points of Claim and Points of Defence.

I concluded that: 55. While I do not have to determine with certainty what the outcome of the litigation would have been, I am certainly satisfied that Thomson had a very serious case to be argued in respect of the miscarriage of the Council's procedures and policies, and that his case, and prospects of success, were probably strengthened by the amendment of the points of claim.

I have, therefore, come to the conclusion that it is probably more likely than not that Thomson would have succeeded in upsetting the consent, had the trial proceeded. … 61. I am satisfied that these proceedings may well have succeeded, and, in the absence of any evidence to support an assertion, in terms of the test articulated by Bignold J in Jan Yee (see par 10 above), that they were not "justifiably commenced" and/or "justifiably continued", to the extent necessary to underpin an order for costs, I do not believe that the Council is entitled to an order for costs against Thomson.

I have also come to the view that it would not be an appropriate exercise of the judicial discretion to make no order at all as to costs. Thomson has satisfied the test laid down in Jan Yee, in so far as he brought proceedings against the Council…

The respondents contend that the arrangements between the parties " moved " considerably between the two " by consent " documents, and that one must balance the relief sought against the relief agreed upon, in order to determine the " success " or otherwise of the moving party.

The respondents were originally going to do $4,000 worth of work, but, eventually, agreed that they would contribute that amount, and the applicant would do the work. That being so, Mr Gough submits that the applicant was not successful in these proceedings.

The Council knew what was going on, but it brought no proceedings about the subject matter - this became, simply, a civil dispute between neighbours.

Mr Rigg says, on the other hand, that the correspondence he received from McKee clearly indicated that the Council supported the applicant's proceedings, and that McKee took a fairly stringent stand with Gough (see Exhibit A1 , fol 30, c.f. folios 36-37 and 103-107).

Mr Rigg also says that, as the applicant chose to settle the proceedings when he got a result that met his needs, there is no need for the court to compare closely the relief sought and the relief settled upon in order to determine the question of costs.

Mr Gough put to the court that he had consistently taken the position with Mr Rigg that what the applicant sought in these proceedings was beyond the court's jurisdiction, and that it was his intention, and the respondents' instructions, that that question would be seriously litigated, if the matter were not settled. He acknowledged that par 2 of the amended Class 4 application may well have been within the court's jurisdiction, but pointed out that that claim was never pursued.

He relies, for his submission on the question of jurisdiction, on the provisions of s 20 of the Land & Environment Court Act 1979, and various authorities.

Section 20 relevantly provides a list of proceedings that are within Class 4 of the court's jurisdiction.

Section 20(2) provides: 2. The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract.

Section 20(3) provides a list of what is for the purposes of sub-section (2) " a planning or environmental law ".

" Development contract " is defined as follows in 20(5) as meaning " an agreement implied by section 15 of the Community Land Management Act 1989, section 281 of the Strata Schemes (Freehold Development) Act 1973 or section 49 of the Strata Schemes (Leasehold Development Act 1986 ".

In Proprietors of Strata Plan 20754 v Hawkesbury City Council & Anor (1991) 73 LGRA 199, Kirby P said (at 208-209):

The result of these authorities is that, but for s 71 of the Land and Environment Court Act, the Supreme Court in its equitable jurisdiction would undoubtedly have had the jurisdiction to hear and dispose of proceedings in which persons such as the appellants claimed a declaration of right in relation to, for example, the obligation of the Land and Environment Court in the exercise of its function in respect of prosecution in that Court for breach of an obligation or duty imposed by a planning or environmental law. If the Supreme Court in its equitable jurisdiction, had that power before the enactment of the Land and Environment Court Act, such power passed to the Land and Environment Court, to the exclusion of the Supreme Court, by s 20(2) of the Land and Environment Court Act.

This is scarcely a surprising conclusion. What is involved is a declaration of right by the specialist court concerning a prosecution in that court relating to a suggested breach of the Environmental Planning and Assessment Act. It is entirely sensible and to be expected that such court, being bound itself to determine and act within its jurisdiction, should have the power to give effect to such determination by a declaration of right whenever appropriate.

Even more clear would be the jurisdiction of the court to make a declaration of the kind belatedly sought for the appellants, that they were not, by reason of the resumption, in breach of cl 7 of the conditions imposed by the respondent. The respondent did not contest that such a declaration (and orders in support of it) would have been within the jurisdiction of the Land and Environment Court. It simply upheld the decision of Stein J not to permit the belated amendment to allow such a claim to be mounted.

Mr Gough also relies on Talbot J's decision in Duncan v Moore & Ors (1999) 103 LGERA 312, to the effect that certain claims were outside the jurisdiction of the court (see His Honour's discussion at pp 315-319). See also North Sydney Municipal Council v Janakis & Anor (1993) 80 LGERA 132 and National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 71 LGRA 286.

I recently took the view, in a later stage of Duncan v Moore & Ors [2000] NSWLEC 64, that, if the court lacked jurisdiction to deal with a matter, it also lacked jurisdiction to award costs in respect of it. (See par 138 of my judgment, and, also, Plumb v Comcare (1992) 39 FCR 236, and Byron Shire Council v Vigden & Anor [1999] NSWLEC 285).

Mr Rigg contends that the court obtained jurisdiction in this matter because there had been " illegal " work done, and there was a potential for environmental harm. Not only that, the respondents " accepted " the jurisdiction of the court by conducting their side of the proceedings and agreeing to settle them. I cannot accept these submissions.

As I understand Mr Gough's submissions, what he is putting to the court is that this Class 4 application was in the nature of a suit by the applicant for " specific performance " of the agreement noted in the consent orders dismissing the former proceedings.

Certainly it cannot be said that the court on 29 July 1998 ordered the parties to the earlier case, identical as they are to those in this case, to do what they told the court they had agreed to do.

On balance, I have concluded that the preferable view of these proceedings is that taken by Mr Gough. They were, in essence, a claim for specific performance of an agreement reached between the parties in the solution of some earlier Class 4 proceedings, which were then, by consent, dismissed.

I cannot express a confident view, in all the circumstances of this case, that the proceedings would have succeeded, and I do not believe that they meet the test in Jan Yee .

Accordingly, while the court congratulates the parties on settling their disputes, I think that the appropriate order as to the costs of these proceedings is that each party should pay its own costs.

The applicant having, therefore, failed in this Notice of Motion, he should be ordered to pay the respondents' costs thereof.

Accordingly, the formal orders of the court will be: 1. In the substantive proceedings, each party will pay its own costs. 2. In respect of this Notice of Motion for costs, the applicant will pay the respondents' costs as agreed, or failing agreement, as assessed according to law. 3. The exhibits should be returned.

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.

56. The respondents were originally going to do $4,000 worth of work, but, eventually, agreed that they would contribute that amount, and the applicant would do the work. That being so, Mr Gough submits that the applicant was not successful in these proceedings.

57. The Council knew what was going on, but it brought no proceedings about the subject matter - this became, simply, a civil dispute between neighbours.

58. Mr Rigg says, on the other hand, that the correspondence he received from McKee clearly indicated that the Council supported the applicant's proceedings, and that McKee took a fairly stringent stand with Gough (see Exhibit A1, fol 30, c.f. folios 36-37 and 103-107).

59. Mr Rigg also says that, as the applicant chose to settle the proceedings when he got a result that met his needs, there is no need for the court to compare closely the relief sought and the relief settled upon in order to determine the question of costs.

60. Mr Gough put to the court that he had consistently taken the position with Mr Rigg that what the applicant sought in these proceedings was beyond the court's jurisdiction, and that it was his intention, and the respondents' instructions, that that question would be seriously litigated, if the matter were not settled. He acknowledged that par 2 of the amended Class 4 application may well have been within the court's jurisdiction, but pointed out that that claim was never pursued.

61. He relies, for his submission on the question of jurisdiction, on the provisions of s 20 of the Land & Environment Court Act 1979, and various authorities.

62. Section 20 relevantly provides a list of proceedings that are within Class 4 of the court's jurisdiction.

2. The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose proceedings:

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and

(d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract.

64. Section 20(3) provides a list of what is for the purposes of sub-section (2) "a planning or environmental law".

65. "Development contract" is defined as follows in 20(5) as meaning "an agreement implied by section 15 of the Community Land Management Act 1989, section 281 of the Strata Schemes (Freehold Development) Act 1973 or section 49 of the Strata Schemes (Leasehold Development Act 1986".

66. In Proprietors of Strata Plan 20754 v Hawkesbury City Council & Anor (1991) 73 LGRA 199, Kirby P said (at 208-209):

67. Mr Gough also relies on Talbot J's decision in Duncan v Moore & Ors [1999] NSWLEC 152; (1999) 103 LGERA 312, to the effect that certain claims were outside the jurisdiction of the court (see His Honour's discussion at pp 315-319). See also North Sydney Municipal Council v Janakis & Anor (1993) 80 LGERA 132 and National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 71 LGRA 286.

68. I recently took the view, in a later stage of Duncan v Moore & Ors [2000] NSWLEC 64, that, if the court lacked jurisdiction to deal with a matter, it also lacked jurisdiction to award costs in respect of it. (See par 138 of my judgment, and, also, Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236, and Byron Shire Council v Vigden & Anor [1999] NSWLEC 285).

69. Mr Rigg contends that the court obtained jurisdiction in this matter because there had been "illegal" work done, and there was a potential for environmental harm. Not only that, the respondents "accepted" the jurisdiction of the court by conducting their side of the proceedings and agreeing to settle them. I cannot accept these submissions.

70. As I understand Mr Gough's submissions, what he is putting to the court is that this Class 4 application was in the nature of a suit by the applicant for "specific performance" of the agreement noted in the consent orders dismissing the former proceedings.

71. Certainly it cannot be said that the court on 29 July 1998 ordered the parties to the earlier case, identical as they are to those in this case, to do what they told the court they had agreed to do.

72. On balance, I have concluded that the preferable view of these proceedings is that taken by Mr Gough. They were, in essence, a claim for specific performance of an agreement reached between the parties in the solution of some earlier Class 4 proceedings, which were then, by consent, dismissed.

73. I cannot express a confident view, in all the circumstances of this case, that the proceedings would have succeeded, and I do not believe that they meet the test in Jan Yee.

74. Accordingly, while the court congratulates the parties on settling their disputes, I think that the appropriate order as to the costs of these proceedings is that each party should pay its own costs.

75. The applicant having, therefore, failed in this Notice of Motion, he should be ordered to pay the respondents' costs thereof.

76. Accordingly, the formal orders of the court will be:

1. In the substantive proceedings, each party will pay its own costs.

2. In respect of this Notice of Motion for costs, the applicant will pay the respondents' costs as agreed, or failing agreement, as assessed according to law.

Schemes (Leasehold Development Act 1986

Planning and Assessment Act 1979

Environment Court Act 1979

Land Management Act 1989

Schemes (Freehold Development) Act 1973

CITATION : Beilby v Viney Pty Ltd & Anor [2000] NSWLEC 93 APPLICANT: Ian Thomas BEILBY PARTIES : FIRST RESPONDENT Viney Pty Ltd (ACN 074 308 115) SECOND RESPONDENT Peter EPOV FILE NUMBER(S) : 40221 of 1998 CORAM: Sheahan J KEY ISSUES: Costs :- in Class 4 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; Byron Shire Council v Vigden & Anor [1999] NSWLEC 285; Duncan v Moore & Ors (1999) 103 LGERA 312; Hayden Theatres Pty Ltd v Penrith City Council & Anor (1998) 105 LGERA 230; Jan Yee Australia Pty Ltd v Woollahra Council & Anor (40232 of 1995, 26 March 1997, Bignold J); Latoudis v Casey (1990) 170 CLR 534; Leichhardt Municipal Council v Jeffrey & Ors [1998] NSWLEC 143; CASES CITED: Marrickville Council v Syfurn Pty Ltd & Ors [1999] NSWLEC 71; National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 71 LGRA 286; North Sydney Municipal Council v Janakis & Anor (1993) 80 LGERA 132; Plumb v Comcare (1992) 39 FCR 236; Port Stephens Shire Council v Grivas & Ors [1999] NSWLEC 135; Proprietors of Strata Plan 20754 v Hawkesbury City Council & Anor (1991) 73 LGRA 199; Re Minister for Immigration & Ethnic Affairs v Ex parte Lai Quin (1997) 186 CLR 622; Thomson v Mosman Council & Anor [1999] NSWLEC 86 DATES OF HEARING: 19/04/00 DATE OF JUDGMENT: 05/11/2000

(1999) 103 LGERA 312

(1998) 105 LGERA 230

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