Belongil Progress Association Inc v Byron Shire Council & Anor

Land and Environment Court (NSW)|2000-06-15|Before: Cowdroy J, Mr J, Mr P

The applicant's claim is predicated upon the fact that it was vindicated in its challenges to the LEP. It submits that in consequence it should be entitled to its costs pursuant to the costs principles as discussed in Latoudis v Casey (1990) 170 CLR 534.

The first respondent submits that the applicant's success in the proceedings resulted only from an issue raised during the Court proceedings. It says that at the commencement of the proceedings the applicant abandoned the three original issues of its challenge. The remaining challenges to the validity of the LEP were then distilled into three issues.

The first issue ("the first issue") raised the question of whether there was a need for the first respondent to carry out an environmental study. On this issue the Court held that the provision of an environmental study was not mandatory provided the Minister's attention was drawn to the absence of such a study in the report prepared pursuant to s 69 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), ("the s 69 report"). However since the s 69 report contained no notification to the Minister of the absence of such study the factual basis for the exercise of the Minister's discretion to make the LEP was flawed. The applicant succeeded in establishing that the Minister's attention had not been drawn to the absence of the environmental study.

As a second issue ("the second issue") the applicant alleged that there had been a failure to consult between the Department of Urban Affairs and Planning ("DUAP") and the Department of Land and Water Conservation ("DLWC") as required by s 62 of the EP&A Act in the preparation of the LEP. The Court found that there had been a failure to consult but concluded that it would not in the circumstances grant any relief in respect of such failure.

The third issue ("the third issue") involved a challenge to the advertisement required by s 66(1)(a) of the Act. The Court concluded that it was not necessary to determine this issue but indicated that it would have severed the relevant offending word "hotels" from the LEP because of a deficiency in the advertising process required by s 66(1)(a) of the Act.

In view of such findings of the Court the first respondent submits that the applicant is not entitled to the whole of its costs, since it succeeded in obtaining relief on only one issue raised during the hearing relating to the adequacy of the s 69 report. The first respondent relies upon authorities which have held that a successful party is not entitled to the whole of its costs where it has succeeded only in respect of certain issues: see for example Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169.

Additionally the first respondent submits that the finding of invalidity of the LEP resulted solely as a consequence of the conduct of the second respondent because the second respondent failed to advise the Minister in the s 69 report of the fact that no environmental study had been undertaken by the first respondent. Accordingly the first respondent submits it was not at fault in relation to the first issue and therefore it is entitled to an order that the second respondent pay the applicant's costs.

The second respondent contends that each party pay its own costs or that there be no order for costs against the second respondent. This submission is based upon the fact that of the six issues originally made by the applicant, three were abandoned at the commencement of the proceedings and of the remaining issues the second respondent was only involved in relation to two such issues. The second respondent was successful other than for an issue not strictly pleaded nor opened upon but was raised during the course of submissions in the proceedings, namely the adequacy of the s 69 report.

The submissions of both respondents over simplify the reality of the issues raised in the proceedings contrary to the first respondents arguments wherein the Court found that an environmental study should have been undertaken unless the Minister was informed of the non-fulfilment of such requirements in the s 69 report; that there had been a failure to consult as required by s 62 of the EP&A Act and that the advertising pursuant to s 66 of the EP&A Act was defective. The findings of the Court in the proceedings were therefore in the applicant's favour in respect of all three issues.

As to the second respondent the Court found that the s 69 report was deficient and that there had been no compliance with Direction 26.

By virtue of s 69 of the Land and Environment Court Act 1979 ("the Court Act") the Court is invested with a broad discretion to award costs and principles exist to guided the Court concerning the proper exercise of its discretion. One rule suggests that only special circumstances will justify departure from the usual rule that a successful party is entitled to its costs: see Queensland Wire Industries Pty Limited v BHP Co Limited (1987) 17 FCR 211 at 212. It has also been held that a successful party should be deprived of costs only if the conduct of that party was such as to unreasonably prolong the proceedings: see Latoudis v Casey at 565; Re v Elgindata Ltd [No 2] [1992] 1 WLR 1207 at 1204-1217; Cummings v Lewis (1993) 113 ALR 285. Further, authority exists for the proposition that apportionment of costs against a successful plaintiff should only be made in exceptional circumstances, lest the ultimate ends of justice be prevented if a party is dissuaded by the risk of costs from canvassing all issues: see Cretazzo v Lombardi (1975) 13 SASR 4 at 16; Hughes v Western Australian Cricket Association (Inc.) (1986) 8 ATPR 40-748; Dodds Family Investments Pty Limited v Lang Industries Pty Limited & Ors 26 IPR 261 at 271; J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch & Anor (No 2) [1992] 46 IR 301 at 302-303.

The first respondent submits that the Court has jurisdiction to order that a successful applicant pay its costs. In support it relies upon the authority of Sanderson v Blyth Theatre Company [1903] 2 KB 533 (CA). However the Court regards that authority as merely illustrative of the broad power which any Court has to award costs. The Court prefers to adopt the principle that a successful applicant should pay the costs of an issue upon which it did not succeed only if the raising of the issue was so unreasonable that it is fair to make the order: see Mok Gek Bouy v Minister for Immigration, Local Government & Ethnic Affairs & Anor (1993) Vol 47 FCR 1 at 88-89; see also Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) 28 ALR 201 at 206-207.

The first respondent has also submitted that since the proceedings involved the conduct of public authorities in the discharge of their powers and obligations, such circumstance could provide a basis for declining an order that costs follow the event. It relies upon a decision of the Supreme Court of Victoria in Lyster v Camberwell City Council (1989) 69 LGRA 250 in support of such proposition. Having considered that judgment, the Court does not regard it as establishing a general principle. Rather the decision is one which was appropriate to the particular facts (see Lyster v Camberwell City Council at 260).

In view of the findings in the proceedings the Court considers that the applicant is entitled to an order that its costs be paid by the respondents. None of its claims could be said to be frivolous or vexatious such that an apportionment would be warranted. The re-formulation of the issues of the proceeding did not unnecessarily prolong the proceedings.

The Court found that the second respondent contributed to the ultimate invalidity of the LEP with the deficiency of its report to the Minister. It was therefore in part responsible for the invalidity of the LEP. The Court considers it appropriate that the second respondent pay a portion of the cost of applicant.

The first and second respondents pay the costs of the applicant.
Between the first and second respondent, the costs payable pursuant to Order 1 hereof be apportioned. The first respondent is liable for 70% of the costs and the second respondent is liable for 30% of the applicant's costs of the application in the proceedings.

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.

CITATION : Belongil Progress Association Inc v Byron Shire Council & Anor [2000] NSWLEC 118 APPLICANT Belongil Progress Association Inc PARTIES : RESPONDENTS Byron Shire Council & Anor FILE NUMBER(S) : 40050 of 1999 CORAM: Cowdroy J KEY ISSUES: Costs :- apportionment of costs between two defendants - applicant establishing breaches of the provisions of the EP&A Act in the formulation of a planning instrument - applicant establishing breach by second respondent - apportionment of costs in the exercise of the Court's discretion LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166; Cretazzo v Lombardi (1975) 13 SASR 4 ; Cummings v Lewis (1993) 113 ALR 285; Dodds Family Investments Pty Limited v Lang Industries Pty Limited & Ors 26 IPR 261 ; Hughes v Western Australian Cricket Association (Inc.) (1986) 8 ATPR 40-748; CASES CITED: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch & Anor (No 2) [1992] 46 IR 301 ; Latoudis v Casey (1990) 170 CLR 534; Lyster v Camberwell City Council (1989) 69 LGRA 250 ; Mok Gek Bouy v Minister for Immigration, Local Government & Ethnic Affairs & Anor (1993) Vol 47 FCR 1 ; Queensland Wire Industries Pty Limited v BHP Co Limited (1987) 17 FCR 211 ; Re v Elgindata Ltd [No 2] [1992] 1 WLR 1207 ; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) 28 ALR 201 DATES OF HEARING: 2/6/00 DATE OF JUDGMENT: 06/15/2000

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