Director-General of the Department of Environment, Climate Change and Water v Venn

Land and Environment Court (NSW)|2011-11-11|Before: Preston CJ

Issues to be determined 1On 8 July 2011, I found that Mr Venn had breached s 118A(2) of the National Parks and Wildlife Act 1974 ("the Parks Act") by directing the clearing and filling of land on which there were two endangered ecological communities. I made a declaration to that effect. I made various orders to restrain Mr Venn from continuing the breach and to remedy the breach. 2The orders included an order that Mr Venn cause a qualified fencing contractor to erect a fence along the length of the common boundary between Mr Venn's property (Lot 2) and the adjoining property (Lot 1) on which the clearing and filling occurred (Orders 6 and 7); an order that Mr Venn cause an appropriately qualified and experienced rehabilitation practitioner to undertake a contamination assessment and prepare a remediation action plan (Order 9); an order that the proceedings be adjourned for further hearing to determine the further orders for remediation and rehabilitation of Lot 1 (Order 12); and orders granting liberty to the parties to apply for further or different orders (Orders 13 and 14). I reserved the question of costs of the proceedings (Order 15): see Director-General Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118. 3As a consequence of these orders, three matters now need to be resolved. First, pursuant to the liberty granted to the parties, Mr Venn has applied to vary Order 6 so as to allow him to erect the required fence rather than employing a fencing contractor. Secondly, the applicant seeks an order for its costs of the proceedings until the date of judgment (being the costs reserved in Order 15 as well as costs reserved on the applicant's notice of motion filed 10 May 2011) and the costs of Mr Venn's application to vary Order 6. Thirdly, the further orders for remediation and rehabilitation of Lot 1 need to be determined. I will deal with each.

Costs 12The proceedings are proceedings to civilly enforce the Parks Act and are in class 4 of the Court's jurisdiction. Section 98 of the Civil Procedure Act 2005 and Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005 apply to the proceedings. Rule 42.1 provides that: "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 13The expression "follow the event" in the rule refers to the practical result of the claims in the proceedings. In this case, the practical result of the applicant's claims is that the applicant was successful in obtaining orders to remedy and restrain breaches of the Parks Act. The applicant claimed two breaches, one of s 118A(2) and the other of s 156A(1)(b) of the Parks Act. 14I found that at the time of undertaking the clearing and filling of Lot 1, there was a past breach of s 118A(2) but not of s 156A(1)(b) because defects in the process of registration of the transfer of title and reserving of the land as a nature reserve meant that the land was not a nature reserve at that time. However, I found that these defects were subsequently cured and that the continuation of clearing (such as by mowing) and retention of the fill would thereafter involve a threatened or apprehended breach of s 156A(1)(b). Accordingly, whilst the declaration made was limited to the past breach of s 118A(2), the orders made were to remedy past as well as threatened or apprehended breaches of both s 118A(2) and s 156A(1)(b) of the Parks Act. 15Hence, the applicant was successful in establishing past breach of s 118A(2) but not s 156A(1)(b), successful in establishing threatened or apprehended breach of both ss 118A(2) and 156A(1)(b) and successful in obtaining injunctive relief (although the final terms of all of the injunctive orders have still to be finalised). 16However, I consider that I should allow some apportionment to make allowance for the time taken and cost in relation to the applicant's claim that there was a past breach of s 156A(1)(b) in respect of which the applicant was unsuccessful. It would not be productive to apportion precisely the cost attributable to this component. Rather, an impressionistic, discretionary evaluation should be used. Considering the pleadings, the evidence, the arguments and the judgment, I consider 30 per cent should be said to be attributable to that component. Hence, I consider a proper order, reflecting the applicant's extent of success on the issues, is that the respondent should pay 70 per cent of the applicant's costs. 17Nevertheless, Mr Venn submitted on various grounds, that the applicant's conduct before or during the proceedings should disentitle the applicant to any of its costs. I do not consider that Mr Venn has established any disentitling conduct of the applicant justifying refusing costs to it as the largely successful party. 18First, Mr Venn declined prior to the commencement of the proceedings to give any undertaking to refrain from conduct that might be in breach of the Parks Act when requested to do so in March and May 2010. Mr Venn says this was because the applicant always coupled the two claims that Mr Venn was in breach not only of s 118A(2) but also s 156A(1)(b) of the Parks Act. 19Mr Venn submits that he believed that the applicant had not effectively acquired or reserved Lot 1 as a nature reserve and hence he was not in breach of s 156A(1)(b). Mr Venn submits that the judgment vindicated that view. Mr Venn submits that the undertaking sought in relation to s 118A(2) was not just to refrain from picking endangered ecological communities on privately owned land (owned by Delta Electricity) but on reserve land. Hence, he submits, he was justified in not agreeing to give the undertaking because of his view that it was not reserved land. I will deal with this error later in the judgment but for the moment the relevance is simply that Mr Venn declined to give the undertakings for these reasons. 20In the circumstances, however, the applicant was left with no choice but to commence the proceedings to restrain Mr Venn from continuing conduct the applicant alleged was in breach of s 118A(2) and s 156A(1)(b) of the Parks Act. Mr Venn defended all aspects of the applicant's claims, putting the applicant to proof of all aspects of both breach and remedies for breach. 21Secondly, Mr Venn submitted that the applicant's claim in its entirety was unnecessary. He submitted that the applicant failed to bring an action based on the true facts that Delta Electricity was the registered owner at all relevant times. Mr Venn submitted that this failure should have the consequence of denying the applicant its costs for all of its claims. 22I disagree. First, the question of the ownership of Lot 1 was only relevant to the applicant's claim that Mr Venn breached s 156A(1)(b), not s 118A(2). Second, the applicant's claim in relation to the breach of s 156A(1)(b) relied on Lot 1 either being land acquired or land reserved under the Parks Act The applicant had an evidentiary foundation for its claim and had a reasonable argument. 23The fact that I ultimately determined that the applicant's evidence did not establish that, in the period May 2007 to July 2008, the applicant had acquired Lot 1 from Delta Electricity and that Lot 1 had not been properly reserved, does not mean that the applicant's conduct in bringing and maintaining that claim was unreasonable. I did find that subsequently, on 10 February 2009, the land was acquired by the applicant. Thereafter, I found that Mr Venn's conduct gave rise to an apprehended or threatened breach of s 156A(1)(b). Hence, there was a period of time where the true facts (in the sense of the facts found by the Court) supported the applicant's claim of breach of s 156A(1)(b). The fact that the Court found the facts did not establish a breach in the earlier time, between May 2007 and July 2008, is to use the benefit of hindsight. There was a contest as to what facts were established by the evidence and as to the legal consequences of those facts. 24Insofar as I intend to make allowance for the applicant's lack of success of establishing the past breach of s 156A(1)(b), Mr Venn's submission that the applicant's claim was not based on the true facts will be taken into account. No further discount is warranted. Thirdly, Mr Venn submitted that because the true facts were that the applicant had not acquired the land, and hence the land remained with Delta Electricity, the applicant's claim that there was a breach of s 156A(1)(b) was wrong and improper. I reject this submission. My reasons for rejecting the first submission are equally applicable to the second submission. My discounting of the proportion of costs the applicant will receive takes into account the applicant's lack of success in establishing past breach of s 156A(1)(b) and no further discount is warranted. 25Fourthly, Mr Venn submitted the applicant lost more than it won and therefore should receive no costs at all. I disagree for the reasons I have given earlier. Mr Venn's submission that the applicant lost the s 118A(2) claim is contrary to the facts. Mr Venn's submission in this regard was based on his erroneous view that the applicant's claim was that Mr Venn breached s 118A(2) by picking endangered ecological communities in a nature reserve . The ownership of the land on which the endangered ecological communities were located is not an element of the breach of s 118A(2) of the Parks Act. Hence, the applicant could not be unsuccessful in establishing something that was not an element of the breach. 26Fifthly, Mr Venn submitted that the applicant wrongly contributed to the damage to the endangered ecological communities by failing to bring civil enforcement proceedings earlier to remedy the harm caused by Mr Venn to the endangered ecological communities. This submission is irrelevant to the question of the costs of the proceedings and is factually erroneous. 27Sixthly, Mr Venn made submissions that the Court should order the applicant to correct the public record, remove notations on title and make recordings under the Second Schedule of the Register. None of these submissions relate to the question of the cost of the proceedings. They were not raised in the substantive proceedings by the applicant or the respondent. There was no cross claim by the respondent seeking such relief. 28Accordingly, there was no disentitling conduct of the applicant leading up to the commencement of the proceedings or during the proceedings or the hearing, which would support the exercise of the Court's discretion to refuse costs to the largely successful applicant. 29Finally, Mr Venn submitted an order for costs would have a severe, disproportionate and unfair effect on Mr Venn. Mr Venn referred again to the fact that he has limited income, essentially being the pensions of him and his wife and that he cannot afford to pay an order for costs. He said he does not want to be forced to sell his home to pay the costs order. 30I do not consider this to be a sufficient reason to not order Mr Venn to pay the proportion of the applicant's costs that I consider to be appropriate. As had been said often, an order for costs is compensatory, not punitive. The successful applicant should be compensated for its costs of upholding its claim. Of course, compensating the successful party comes at a cost to the unsuccessful party but imposing that cost is not done to punish the unsuccessful party. 31If a costs order is made, the amount will need to be assessed in the usual way so that this permits Mr Venn some opportunity to ensure that the amount is reasonable and relates to the subject matter of the proceedings. It may be that the applicant chooses not to enforce payment of the whole of the costs or may agree to Mr Venn making payments by instalments, however, these are matters for the applicant. 32Accordingly, I consider it appropriate to order Mr Venn to pay 70 per cent of the applicant's costs of the proceedings up to the date of judgment on 8 July 2011. 33An order for costs of the proceedings up to judgment should include the costs of the applicant's notice of motion to strike out the defence filed 10 May 2011. The costs of this notice of motion were reserved at the time. There is no reason why the costs of this notice of motion should not be costs in the cause and therefore should be included in any order for costs in favour of the successful applicant. I note I ordered, on 3 March 2011, that the costs of another notice of motion filed on 26 November 2010 be costs in the cause. 34Finally, I consider that Mr Venn should also pay the applicant's costs in relation to Mr Venn's application to vary Order 6. The applicant has been successful in this matter.

Further remediation and rehabilitation orders 35Pursuant to Order 9, Mr Venn engaged Sydney Environmental and Soil Laboratory ("SESL") to undertake a contamination assessment. SESL produced a contamination assessment report dated August 2011 as well as a revegetation assessment also dated August 2011. The applicant responded to the SESL contamination assessment with two expert reports, one of Mr Wai dated 26 September 2011 and the other of Dr Priffti dated 23 September 2009. There is also a joint expert report by the parties' respective experts. The focus of this evidence has been the nature and extent of contamination of the land and groundwater by the fill. 36Unfortunately, neither party has provided evidence of what action should be taken to remedy the harm caused to the endangered ecological communities on Lot 1 by Mr Venn's clearing and filling activities. This evidence is necessary in order for the Court to make appropriate orders to remedy the breach of the Parks Act by the picking of the endangered ecological communities. 37After the parties' legal representatives sought instructions from their respective parties and made submissions to the Court, I ruled that the appropriate course was for the Court to direct that the parties engage a parties' single expert in the field of restoration ecology to provide an opinion in relation to remedying the harm caused to the endangered ecological communities on Lot 1 by Mr Venn's clearing and filing activities so as to best promote the re-establishment of the endangered ecological communities. 38A procedure can be followed for the selection, briefing and engagement of the parties' single expert and the provision by that person of an expert report, with a hearing to follow. I will make directions to implement this procedure shortly. 39For these reasons, I make the following orders:

Order 6 of the orders made on 8 July 2011 is vacated and instead the following order is made: An order that Mr Venn, by 9 December 2011, do all things reasonably necessary to cause a qualified fencing contractor to erect a fence: (a) along the length of the common boundary between Lot 1 and 2 at the location described in the letter from Mr Johnston of the National Parks and Wildlife Service to Mr Venn dated 8 September 2011 and shown in the annexed survey plan; and (b) to the specifications described in the letter from Mr Gifford of the National Parks and Wildlife Service to Mr Venn dated 19 August 2011, and in the letter from Mr Johnston to Mr Venn dated 8 September 2011.
The respondent pay 70 percent of the applicant's costs of the proceedings up to the date of judgment on 8 July 2011 including the costs of any notices of motion, which have been reserved.
The respondent pay the applicant's costs of the respondent's application to vary Order 6 of the orders made on 8 July 2011.
Pursuant to r 31.37 of the Uniform Civil Procedure Rules 2005, the parties engage jointly a parties' single expert ("the PSE") with qualifications in the field of restoration ecology, in order to provide opinion evidence in relation to remedying the harm caused to the endangered ecological communities on Lot 1 by the respondent's clearing and filling activities to best promote the re-establishment of the endangered ecological communities described more fully in the Court's judgment of 8 July 2011 ("the PSE report").
The applicant, on or before 15 November 2011, provide to the respondent a draft terms of reference and list of documents proposed to be provided to the PSE ("the PSE brief").
The respondent, on or before 17 November 2011, provide to the applicant any suggested amendments to the draft terms of reference and notify of any additional documents to be added to the list of documents.
The applicant, on or before 24 November 2011, provide to the respondent a list of PSEs it proposes (numbering no more than three) including qualifications and, if quotes have been able to be obtained, an estimated cost provided by each PSE in relation to the proposed report and a time by which it is estimated that the proposed report could be provided.
The respondent, on or before 1 December 2011, either agree with the plaintiff on a PSE from the plaintiff's list or alternatively propose no more than three alternative PSEs (providing, if possible, the same criteria as in Order 7).
The applicant, on or before 6 December 2011, agree with the respondent on an alternative PSE or alternatively list the matter before the Court for a ruling on the PSE to be appointed.
The parties to provide the PSE with the PSE brief on or before 9 December 2011.
The PSE report to be provided to the parties and the Court by 23 January 2012.
The matter is fixed for hearing on 13 and 14 February 2012.
The parties have liberty to restore the matter on three working days' notice.
Noting that the respondent's notice to produce served on the applicant on 20 October 2011 is withdrawn, the applicant's notice of motion filed 31 October 2011 is dismissed with no order for costs. 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. Decision last updated: 02 December 2011

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