Fast Buck$ & 1 Ors v Dudley Pastoral Co P/L & 1 Ors; Byron Shire Council v Fast Buck$ & 1 Ors

Court of Appeal (NSW)|2003-05-21|Before: Pastoral Co P, Meagher JA, Giles JA, Santow JA, Bignold J, Cowdroy J

The application for leave to appeal 22 Messrs Buck$ and Hamill failed in the Land and Environment Court. They were ordered to pay the costs of Dudley, but not those of the Council because - "14. The Court is therefore satisfied that the council has generated doubt and uncertainty which has encouraged the applicants to engage in this litigation. It has thereby disentitled itself to any order for costs." 23 What was the conduct which his Honour regarded as encouragement to engage in the litigation and disentitling the Council to an order for costs? 24 Before and after filing their application Messrs Buck$ and Hamill agitated for a further site investigation. By a notice of motion filed in the Land and Environment Court proceedings on 26 July 2000 the Council applied for an order permitting it to enter onto the Coorabell land for the purpose of carrying out a contamination audit. The affidavit in support of the application disclosed that on 26 April 2000 the Council had resolved "to obtain an independent contamination audit" with specific reference to certain matters, and that it was "prepared to fund a further contamination audit" of the land, but that Dudley was unwilling to allow any further soil testing. It was said that the order allowing the independent contamination audit "may resolve most or all of the issues which have given rise to these proceedings". 25 The application was heard on 27 October 2000, and was dismissed for want of power to make the order. 26 In my opinion this could not be seen as disentitling encouragement. Messrs Buck$ and Hamill frankly said that they "at all times made clear their position that if the subject site were to be tested for contamination by an EPA-accredited consultant the litigation now under review would be withdrawn", and that they "lobbied the Council to avoid litigation by resolving the outstanding contamination issues". The Council maintained its position that condition C6 had been satisfied, but was willing and tried to avert the litigation. Its conduct, although it misconceived the outcome, is to be commended, not used to mulct it in costs. Further, I have no doubt that Messrs Buck$ and Hamill would have proceeded with the proceedings even if the Council had not indicated its willingness to fund a further contamination audit and made its unsuccessful application. I do not think it could properly be found that the so-called encouragement caused or contributed to Messrs Buck$ and Hamill continuing with the Land and Environment Court proceedings when otherwise they would not have done so. 27 In my opinion, the judge's decision in this respect was so unreasonable as to vitiate his Honour's exercise of discretion. Re-exercising the discretion, there should be an order that the applicant's pay the Council's costs. 28 It is necessary, however, to consider the question of leave to appeal and extension of time. 29 The application for leave to appeal was filed about three months late. The explanation for the delay was that counsel's advice was obtained and was considered at an ordinary meeting of the Council on 9 July 2002. No doubt the Council (or its lawyers) could have acted with greater expedition, but the delay was not great; attention should be focussed on any prejudice it created. 30 Messrs Buck$ and Hamill submitted that Mr Buck$ might have "withdrawn from the main proceedings before incurring further substantial costs and investing time and effort" had he known of the challenge to the costs order. He did not withdraw when he knew of it, and the submission is not soundly based. They also submitted that the challenge to the costs order "has necessitated the joinder of [Mr Hamill], thereby exacerbating costs further". Mr Hamill was a necessary party in any event, and Mr Buck$' application to join him had been filed before the summons for leave to appeal was filed; exacerbation of costs beyond those of the challenge to the costs order itself can not be accepted. There is no substance in these submissions, which do their proponents no credit. 31 The costs involved are substantial and a significant injustice would be worked upon the Council if the challenged costs order were to stand. In my opinion time should be extended and leave to appeal should be granted. 32 Messrs Buck$ and Hamill's submissions included that Dudley should have only the first day of its costs, because it participated in the proceedings "as if it was the owner of the land and the appropriate respondent party, or as though it was the agent of CBCL", and failed to raise failure to join CBCL until late in the hearing. They submitted that "[b]ecause CBCL is closely related to Dudley Pastoral, it must have aware of the sequence of proceedings and should long ago have joined itself as a party in order to defend its interests", and that it would be unfair for Dudley to have its full costs. However, there was no appeal or application for leave to appeal in relation to the costs order in favour of Dudley.

Extend the time for applying for leave to appeal up to and including 19 July 2002.

2 Grant leave to appeal and direct the filing of the notice of appeal within 7 days.

Set aside the order that no order for costs be made in favour of the second respondent, and in lieu thereof order that the applicants pay the costs of the second respondent.

Opponents/respondents pay claimant/appellant's costs. 34 SANTOW JA: INTRODUCTION The primary proceeding before this Court (CA 40731/01) is an appeal from Cowdroy J of the Land and Environment Court against his decision in favour of Byron Shire Council ("the Council"). There is a concurrent application for leave to appeal in relation to costs. The Applicants and now Appellants had challenged the decision of the Council that a condition (C6) of the Development Consent issued by that Council under the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act") on 2 July 1997 for the establishment of a tourist facility on land at Coorabell, Byron Bay, had been satisfied. The Applicants unsuccessfully contended for a declaration that Consent Condition C6 has not been satisfied, on the basis that the decision of the Council was unreasonable on various grounds. They were self-represented both in the original proceedings and before this Court. 35 No injunction was sought on appeal to restrain the development. On appeal the only order sought is for a fresh site contamination audit and that any required remediation be carried out in accordance with the requirements of two bodies, Australian and New Zealand Environment Conservation Council ("ANZECC") and Environmental Protection Authority ("EPA"). The present beneficial owners collectively of the land have not been made party to the proceedings, but only the former owner. The latter now has a more limited interest as one of several unit holders with beneficial interest under a unit trust where the trustee is the registered proprietor of the property. The trustee has not been joined as a party.

ELABORATION OF BACKGROUND TO THE APPEAL 36 Dealing with the primary proceedings, the salient facts can be expressed in short compass. The Council granted the relevant Development Consent ("the Consent") relating to land near Byron Bay at Coorabell, such Consent being granted for a rural tourist facility. The Consent was granted on 2 July 1997 by the Council, subject to numerous conditions. Condition C6 of the Consent ("Condition C6") provided, "A report is to be submitted from a suitably qualified person addressing the risk of land contamination due to past use of chemicals. The report is to be prepared in accordance with ANZECC and EPA guidelines and submitted for the approval of Council's Environmental Health Office prior to release of the Building Application." 37 On 14 March 2000 the Council resolved that Condition C6 was satisfied following the consideration of several reports prepared by a Mr Kennedy under the business name, Tricend Design & Engineering ("the Tricend reports") submitted to council. 38 The decision of both the designated officer referred to in Condition C6, a Mr Hogan the Council's Environmental Health Officer, as well as that of the Byron Shire Council in its Council meeting on 14 March 2000 was that the condition had been fulfilled. That followed consideration of the Tricend reports, supplied on behalf of Dudley Pastoral Co Pty Limited ("Dudley"), the then owner of the land. Dudley is now a unit holder amongst others in the unit trust that owns the property through a trustee company, CBCL Pty Limited, which acquired it on 1 December 1999. CBCL Pty Limited has never been made a party to these proceedings. 39 There have been two sets of proceedings concerning Condition C6. They were brought by the two self-represented Appellants, Mr Hamill and Mr Fast Buck$, with Mr Hamill being the sole applicant in the first of these but assisted by Mr Fast Buck$. The first proceedings were brought before Bignold J and the second proceedings are those the subject of the present appeal. They were brought by both Applicants against Dudley and the Council as First and Second Respondents respectively. They were determined by Cowdroy J on 27 October 2000 against the Applicants. The jurisdictional basis for those proceedings, as identified by the Trial Judge (Red, 20-1) was a challenge by way of judicial review of the nominated officer's decision (see ss20(1)(f), (2) and (3) of the Land and Environment Act 1979 (NSW). The Trial Judge determined the claims of the Applicants by reference primarily to whether the Council's decision was vitiated by unreasonableness in the Wednesbury sense, namely whether the decision of the Council was so unreasonable that no reasonable council could have reached it. He also dealt with other grounds grouped under unreasonableness, noted below. 40 On 14 March 2000 when the Council resolved that Condition C6 was satisfied, it had before it the Tricend reports prepared by Mr Alan Kennedy. At the time the matter came before Cowdroy J no injunctive relief was sought. That no doubt recognised the practicality that the development comprising tourist cabins and facilities had been completed, subject only to road construction. The latter appears now to have been completed. 41 Essentially, the Applicants before the Trial Judge (Red, 19) challenged the adequacy of the Tricend reports on a number of bases, in particular that the acceptance by Council of the Tricend reports and, it follows by its delegate, was unreasonable first in the Wednesbury sense and second, inter alia, because "a conflict of interest existed by the author of the Tricend reports (Mr Alan Kennedy) since he was associated with the developer, namely the First Respondent". There were other bases of challenge but these are not relevant for the present appeal having been abandoned. In particular, there is now no allegation of bad faith made against the Council. The Trial Judge concluded that the Applicants had not established any claim for relief. 42 The earlier proceedings before Bignold J primarily concerned the validity of the Development Consent by reason of, inter alia, Condition C6 and in particular by reason of the council's alleged failure to consider relevant matters in particular soil contamination in relation to Condition C6. Bignold J found none of the applicants' allegations proved. In determining that question in favour of the validity of the Condition C6, Bignold J had held that the Council had considered and finally determined the question of the effect of land contamination on the development in the Council's overall determination of the development application under s90 EPA Act: see judgment, 22.3, 27.3 and 34 to 38. Bignold J held that Condition C6 was "a standardized type condition imposed on the precautionary principle" (judgment of Bignold J, 38.3), and he accepted that the condition "placed an obligation upon the developer to provide the required report" (judgment of Bignold J, 37.1). 43 Thus Mr Hamill's challenge to Condition C6 was dismissed by Bignold J: see Hamill v Byron Shire Council and Dudley Pastoral Co Pty Limited (Land and Environment Court No. 40249 of 1997, Judgment 31 March 1998, unreported). An appeal against that determination was unanimously dismissed by the Court of Appeal (CA 40242/98; Judgment 15 October 1998, unreported). 44 It was contended in the Respondents' written submissions that the present proceedings, both at first instance and before the Court of Appeal, attempt in part to re-litigate the dispute as to the meaning, purpose and effect of Condition C6 and were matters therefore subject to a res judicata or issue estoppel as a result of the earlier proceedings. In light of the way the present appeal was conducted, the Respondents did not press that contention in argument though not formally abandoning it. The approach of Cowdroy J at first instance partly explains that course. He merely noted the objections of the Respondents to further evidence sought to be adduced of contamination, on the ground of relevance, estoppel and res judicata. He then put to one side any final decision on that, provisionally admitting a considerable amount of that evidence. 45 His ultimate decision was that it was not unreasonable for council to be satisfied on the material before it that Condition C6 was satisfied. He correctly eschewed in so doing, a merits review, applying a Wednesbury test of unreasonableness and impliedly asking whether the decision reached by Council was within the limits of the discretion conferred upon it; Red, 32 at [48] to [50]. But he made no express decision as to whether this meant that this evidence, provisionally admitted, should now be rejected as irrelevant. The Respondents contend that must be the necessary implication of his judgment. On appeal to this Court the Appellants sought to demonstrate that the Tricend reports fell short of what was necessary to satisfy Condition C6. In so doing they were again relying on that trial evidence, which was principally concerned with sampling, as well as the other bases of challenge earlier noted. 46 One of the grounds of appeal is that the Trial Judge, Cowdroy J, misunderstood the nature, scope and effect of s80A(4) of the EPA Act 1979. In substance the Appellants' challenge the statutory basis for imposing condition C6, a condition earlier taken to be valid by Bignold J. Whilst the Respondents' written submissions contended that the Condition C6 was imposed under the authority of s91(3A) of the EPA Act (now s80A(2) of the EPA Act) the Respondents in their oral reply acknowledge that the likeliest source of authority was s91(3)(a), with its reference back to a relevant matter in s90(1) of the EPA Act, here most likely s90(1)(g). This section requires the consent authority in determining a development application, where relevant, to take into account whether the land is unsuitable for the development due to problems or potential problems of flooding, tidal inundation, subsidence, slip, bush fire or any other risk. It needs to be borne in mind that the Consent Authority (the Council), expressed itself satisfied that the relevant condition had been fulfilled so that the power of delegation exercised in favour of Mr Hogan in s91(3A) was not required to be invoked. 47 For convenience I set out the two sections as follows:

Section 91(3A): "A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction of the consent authority or a person specified by the consent authority."

Section 91(3) provides that: "A condition may be imposed for the purposes of subsection (1) if it: (a) relates to any matter referred to in section 90(1) of relevance to the development the subject of the consent, …. " 48 That acknowledgment of the Respondents was no doubt in recognition of the fact that the language of s91(3A) does not, on first impression, readily accommodate itself to treating the words "a specified aspect of the development" as capable of referring not to the development in its physical aspect in conformity with the definition of "development" in s4 of the EPA Act, but to the preparation of a report as to the risk of contamination, as here the case. Nor is it clear how a report on contamination, or the contamination itself, could be "ancillary to the core purpose of the development" namely a tourist resort. Such a report may be ancillary to the Council's consideration of that core purpose of the development, but that is not what s90(3A) comprehends. Likewise, the report was not framed within s91(3B). Under that provision the condition would need to have been expressed in a manner identifying one or more express outcomes or objectives that the development must achieve and clear criteria against which achievement of that outcome or objective must be assessed. The condition's obvious statutory basis is s91(3)(a), referenced to s90(1)(g), as Bignold J indicates in his earlier judgment. In any event, there being no appeal from Bignold J's judgment, his conclusion as to validity of Condition C6 is subject to issue estoppel insofar as any present challenge to validity were concerned. The only reason I refer to the statutory authority for the condition in more detail than Bignold J is to place the condition in its statutory context. 49 Bignold J held that the Council had considered and finally determined the question of the effect of the development of land contamination in the Council's overall determination of the Development Application, characterising Condition C6 in the following terms (Blue, 655): "In the light of my acceptance of Mr Hogan's evidence and of the documentary evidence, I do not think the Applicant's allegation can be, or has been, sustained. The evidence clearly establishes that the council's consideration (including that of its professional staff) that is to be imputed to the Council included consideration of the risk of chemical contamination of the development site. The Applicant attempted to avoid this seemingly inevitable conclusion on the evidence, by arguing that the imposition of Condition C6 was itself evidence from which it could be inferred that neither the council (nor its professional staff) had considered the matter, but had relegated its consideration of the matter to the imposition of a condition on the grant of development consent. However Mr Hogan's evidence, which I accept, puts an entirely different complexion on Condition C6. It is a standardised type condition imposed on the precautionary principle. But the Council's evidence rises much higher than that, because the staff report (upon which the Council was entitled to rely) unequivocally stated that there s "no known risk" and that "environmental issues have been adequately addressed". Moreover each councillor had received a copy of the public submissions in respect of the amended development application which included the Applicant's submission which had raised the possibility of affectation of the development site by dip site(s). For all the foregoing reasons the Applicant has not proved its allegations." 50 The Applicant had invited the court in the proceedings before Bignold J not to accept Mr Hogan's testimony, despite Bignold J accepting it, that "he had recommended the imposition of Condition C6 to be 'absolutely sure there was no contamination of the land'. Further he described the condition as a 'precautionary' condition and a 'standardised type' of condition whereby the Council places the obligation upon the developer to provide the required report." Blue 654 51 In argument on this appeal, it was accepted by the Respondents that the term "precautionary" in that context could not have been used in its technical sense in an environmental context of a precaution taken because of scientific uncertainty as to a possible risk of an environmental nature coming home. Rather, it was evidently used in the original lay sense of a precaution taken by way of further assurance concerning contamination for Council to be satisfied, so confirming Mr Hogan's own earlier conclusion from his enquiries as to the likelihood of contamination. Bignold J (Blue, 654) cites his file note as recording "environmental issues have been adequately addressed". It was accepted by Cowdroy J that Mr Hogan was himself relevantly qualified as an expert; see judgment at Red, 21-3. Mr Hogan was a Senior Environmental Assessment Officer for the Council at the relevant date and has held that position since 1987. He possesses tertiary qualifications consisting of a degree of Bachelor of Applied Science, Environmental Health BAS. The significance of that part of the Trial Judge's holding is that Mr Hogan's own expertise enabled him to assess favourably the suitability of Mr Kennedy the author of the Tricend reports as a "suitably qualified person" pursuant to Condition C6 to provide the relevant report to Council. Mr Kennedy's suitability in terms of expertise is subject to renewed challenge on appeal by the Appellants (Appeal Ground 4), because (it was submitted) he was an engineer, not a specialist environmental scientist. Cowdroy J (Red, 21 at [12]) rejected that challenge in terms which disclose no appellable error: "12. Prior to the grant of the consent the council had received several reports from Mr Kennedy dating from 14 September 1995 and relating to the site. Mr Kennedy was a qualified civil engineer holding a tertiary degree of Bachelor of Civil Engineering. He has experience in a wide range of development projects which required investigation of matters concerning effluent disposal design and soil contamination. He has had experience as a subcontractor in the construction of a bridge and was specifically involved in geotechnical testing." (Red, 21) 52 The approach of the Applicants in the proceedings brought before Cowdroy J at first instance was to endeavour to require the developer to carry out additional testing of the land, coupled with a restraint on occupation (Class 4 Application as amended during the hearing: see judgment Red, 18 [2]). They sought to rely upon condition C6 as a basis to bring about further physical testing and any resultant remediation of the land. The same approach eventually characterised the Appellants' case on appeal, except that neither an injunction nor any restraint on occupation is now sought. I deal below with the fundamental difficulty in the way of such orders.

Resolving the present Appeal 53 Turning first to the various grounds of the present appeal, these underwent some changes on the day of hearing. The Appellants conceded that they would not be proceeding with Grounds 6 (natural justice denied) and 9 (a sweeping and totally unjustified reference to His Honour's 'implied assumption" concerning "professional gentlemen with white collars"). Formal leave was given for Mr Fast Buck$ to amend his Amended Notice of Appeal to the form of the Further Amended Notice of Appeal handed up in the following form: "1. His Honour misunderstood the nature, scope and effect of SEC 80(A)4 of the EPA ct 1979 (as amended) 2. His Honour erred in his application of the Wednesbury principle in terms of the exceptions outlined in Caldera by Judge Talbot 3. His Honour misunderstood the nature and effect of conflict of interest as it applies to the relationship between a consultant and a developer 4. His honour erred in accepting as suitable the qualifications of the first respondents' contamination consultant 5. His honour erred in disregarding basic principles outlined in the ANZECC & EPA guidelines and in accepting courses of action by the respondents not justified from those guidelines 6. His Honour abused the Court's power and denied natural justice by disregarding the applicants' expert affidavit-in-reply [abandoned] 7. His Honour erred in disregarding significant internal inconsistencies in the evidence of the respondents' expert witnesses 8. His Honour erred in accepting the oral evidence of the Council's expert officer as indicative of the elected Council's satisfaction regarding consent condition C6. 9. His Honour erred in his implied assumption that professional gentlemen with white collars are by definition incapable of partial or dishonest behaviour and that their word as given is to be preferred to the objective record of their conduct [abandoned] ORDERS SOUGHT 1. That the decision of Justice Cowdroy be set aside 2. That a site contamination audit by an EPA accredited consultant be conducted according to extant ANZECC 7 EPA guidelines, and any required remediation be carried out in accordance with the requirements of the bodies [sic] 3. Alternatively, that the matter be referred back to Judge Cowdroy for determination according to law 4. Any further orders as the court sees fit 5. Costs" 54 At the outset of the appeal before us, the Appellants sought by Notice of Motion to introduce further evidence, said to be relevant on the basis that although the development as originally proposed had been completed, there existed further plans to expand the development. That application was refused. 55 The Appellants then stated that they were not about trying to get the resort closed as it was already up and running. Rather there should be a further site contamination audit by an EPA accredited consultant, conducted according to extant ANZECC and EPA guidelines. Then, if that report indicated remediation was required, any required remediation must be carried out "in accordance with the requirements of the bodies" meaning, as was explained, those requirements as embodied in the relevant guidelines, insofar as they dealt with remediation. The appeal was thus conducted on that basis, without objection from the Respondents. 56 A fundamental difficulty with the orders sought is their lack of any jurisdictional basis coupled with the failure to join the registered proprietor CBCL Pty Limited insofar as any action was sought to be compelled. As to action sought to be compelled, as I have said no injunctive relief was sought, any intention to seek it being disavowed by reason of the resort being up and running. However further remediation was sought to be compelled, depending on the outcome of the further report, if ordered and if it revealed contamination. The Appellants in answer to questions from the Bench indicated through Mr Fast Buck$ that he was not able to say specifically what order was required nor the jurisdictional basis for it, nor what consequence should ensue if it be the case that, in the events that happened, there had not been compliance with Condition C6. Thus neither s123 nor s124 of the EPA Act, quoted below so far as they could conceivably be relevant, were invoked. Nor were they made the subject of any application for an order of the Court to be substituted for the dismissal by Cowdroy J of the original application. Nonetheless these provisions should be considered as the Respondents readily conceded. Thus quoting the relevant parts of the sections: " 123 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his own behalf or on behalf of himself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. ……… 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land--restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the court. ……" 57 It was pointed out by the Respondents to assist the Court that were the earlier report (contrary to their submissions and the finding of the Trial Judge) not in conformity with Condition C6 and if this had the consequence that the Council's purported state of satisfaction with compliance with C6, based on that report, was incapable of rendering Condition C6 satisfied, it may follow that "a breach of this Act" was thereby committed by reason of the definition of that phrase in s122 of the EPA Act. Section 122 provides, inter alia, that "a reference to a breach of this Act is a reference to: (i) a contravention of or failure to comply with this Act, …". Moreover s122(b) provides that a reference to this Act includes a reference to: "(i) … (ii) Consent granted under this Act, and (iii) a condition subject to which a consent referred to in subparagraph (ii) was granted." 58 Let it be assumed for purposes of argument that the earlier report was not capable of satisfying Condition C6. The question then becomes whether s124 is capable of grounding the orders sought, namely requiring a further contamination report in conformity with C6 and any remediation in consequence to be performed. It will be noted that subs (2) of s124 is expressed to be "without limiting the powers of the court under subsection (1)". 59 Clearly enough, on the assumption earlier made, a breach of "this Act" has occurred by reason of failure to comply with a condition, subject to which the relevant consent was granted. An order restraining the breach, in the sense of preventing the continued use of the now completed resort, is expressly disavowed. The only conceivable basis under s124 for an order seeking a fresh report and remediation is that this is an order "to remedy … the breach". The assumed breach would have to be failure to submit a report satisfying Condition C6 before obtaining the release of the building application. But is such breach capable of now being remedied? The answer must be in the negative when it is appreciated that the relevant report, which on the hypothesis presently adopted did not conform to Condition C6, was to be submitted prior to the release of the building application. Condition C6 makes that mandatory. Thus the orders now sought by the Appellants could not remedy that breach as it is not now capable of remedy. 60 There is in any event another fundamental difficulty. CBCL Pty Limited the registered proprietor and trustee under a unit trust in respect of the property has never been joined. That is a fatal impediment to making the orders sought, even if otherwise able to be made, and even if justified. The Appellants' attempted answer by reference to the matters put under their amended points of claim before Cowdroy J (Orange 10) takes matters no further. In particular the order now sought requires personal action namely obtaining another contamination report, and undertaking any remediation so identified. That can only come from CBCL. It is simply not the case that such obligations "attach to the land itself" (Orange, 10 para 6(iii)). 61 It follows therefore that the Appellants' appeal must fail at the threshold. But even were an order capable of being framed within s124(1) "to remedy … the breach" in the way in which the Appellants press, the Grounds of Appeal could not succeed for reasons I will explain briefly.

Appeal Ground 1 - "His Honour misunderstood the nature, scope and effect of s80(A)4 of the EPA Act 1979 as amended" 62 I have already dealt with the statutory basis for the imposition of Condition C6, which clearly was sufficient. No relevant error of the Trial Judge is here identified. There may well be an issue estoppel precluding re-agitation of that, following Bignold J's judgment.

Ground 2: the Wednesbury principle 63 The essence of the Appellants' argument seems to be that because, as applicants, they were successful in persuading the Trial Judge to allow further evidence to be put, the court thereby impermissibly took on the role of a planning authority which Wednesbury principles preclude. There is no substance in that ground. 64 As paragraphs 48 to 51 of the Judgment make abundantly clear (Red, 15-16) the Trial Judge set out to apply the Wednesbury principle. Beyond doing what was necessary to enable him to decide that there was no Wednesbury unreasonableness taking into account the proper scope of the decision-maker's discretion, he expressly disavowed any supplanting of the decision-maker's discretion by way of a merits appeal. To admit provisionally the evidence pressed by the then Applicants for that limited purpose does not indicate that the Trial Judge embarked on any impermissible wider purpose of enquiry. 65 Accordingly Ground 2 must fail.

Ground 3: Conflict of interest - relationship between consultant and developer. Ground 4: Suitability of Mr Kennedy's qualifications. Ground 5: Cowdroy J disregarded principles in the ANZECC and EPA Guidelines. 66 It is convenient to deal with these three grounds together. 67 As to conflict of interest, and leaving aside for the moment the provisions of the ANZECC and the EPA Guidelines, there is nothing in Condition C6 itself that requires or mandates that the person making the report should be independent of the applicant for approval. The operative words are "a suitably qualified person". As the Trial Judge records, "Mr Kennedy was a qualified civil engineer holding a tertiary degree of Bachelor of Civil Engineering. He had experience in a wide range of development projects which required investigation of matters concerning effluent disposal design and soil contamination. He has had experience as a sub-contractor in the construction of a bridge and was specifically involved in geotechnical testing." 68 To suggest as a universal proposition that only a suitably qualified scientist rather than an engineer was equipped to carry out the task of preparing a report as to the risk of land contamination due to past use of chemicals, as was put by the then Applicants' expert, Mr Gregory Albert Alderson, is plainly wrong. It was rightly rejected by the Trial Judge in taking into account Mr Kennedy's experience and expertise. This was first based upon the knowledge that Mr Hogan possessed of Mr Kennedy. Mr Hogan was himself concededly an expert on the subject, as acknowledged by Mr Alderson, so could assess the expertise of Mr Kennedy. Second, the Trial Judge based his rejection of that proposition on what he described as "his unchallenged qualifications and experience". The Trial Judge concluded that the opinions of Mr Alderson "do not demonstrate that the Council acted unreasonably in accepting that Mr Kennedy was a suitably qualified person"; see judgment paras 11 to 21 inclusive, Red, 21 to 23. The fact that a Ms Anne Hicks had carried out a development on her land which required soil testing and had to retain Mr Kennedy for this purpose, when, according to Ms Hicks, Mr Hogan had then said that Mr Kennedy was not qualified to undertake the further testing following disparities revealed in the tests, does not undermine the Trial Judge's conclusion. Moreover, as the Trial Judge noted, Ms Hicks "acknowledged that Mr Kennedy's report was accepted by Mr Hogan"; see Red, 23 para 19 of the judgment. In addition, as the Trial Judge records, Council records suggest that an additional report independent of Mr Kennedy was required and it confirmed Mr Kennedy's report. 69 To the Trial Judge and again on appeal it was put by the Appellants that there was a fundamental conflict of interest which precluded Mr Kennedy providing the report for the purposes of C6. However, as the Trial Judge records, there is no concealment of the extent of Mr Kennedy's interest, as an engineer who was paid for his services and who was, subsequent to the grant of Development Consent, appointed as project manager to provide engineering services and project management services to the then developer, Dudley. There is nothing in those duties that would place Mr Kennedy in a position of conflicting duties in also acting as an expert. The Trial Judge records "Mr Hogan was aware of these facts on his own behalf and as the relevant officer of the Council". He refers to the affidavit of Mr Ross which was prepared to answer the allegation stating that it "shows clearly that Mr Kennedy did not have and never had any beneficial interest in the land or the trust which was the beneficial owner of the land.", and that "this evidence was unchallenged"; see Red, 31-2 para 31 of the judgment; supplementary Blue, 112 and following. 70 Moreover, on 10 March 2000 the developer's solicitor, Mr Wall, clearly revealed to Council the position regarding both the later acquirer of the property, CBCL Pty Limited, and concerning Mr Kennedy. That letter is quoted below (Blue, 362): "Further to our conversation on 9th instant I wish to confirm that I have sought instructions from my client in relation to this matter and now advise as follows: 1. CBCL Pty Limited purchased the land referred to in Certificate of Title Folio Identifier 3/625225 at Newes Road, Coorabel from Dudley Pastoral Company by agreement dated 1 December 1999, Dudley Pastoral Company owns significant beneficial interests in that company. 2. I am instructed that Alan Kennedy has no beneficial interest whatsoever in any shares or units in CBCL Pty Limited. 3. The involvement of Alan Kennedy in the company as a director is simply in his capacity as the project manager. At the date he was appointed as a director of the company and entered into agreements for the management of the proposed project the report upon which my client proposed to rely had been with the Council for a considerable period. In the circumstances there is no reasonable basis upon which it can be asserted that Mr Kennedy was not able to provide an objective report concerning the contamination of the subject land and at the time he prepared his reports he had not placed himself in a position of conflict between his professional responsibilities and his self-interests. If further information is required concerning this matter, please contact me." 71 The Appellants then press that, according to an ASIC search on 6 May 1999 (Blue, 377) Mr Kennedy was a current director of CBCL Pty Limited. Subsequently on 22 December 1999 while still a director Mr Kennedy put in his final report. The search also discloses that he held a beneficial interest in one share in CBCL Pty Limited being half its issued capital. To this, the Respondents point out that CBCL Pty Limited was a trustee of the unit trust but had no beneficial interest itself. 72 The Respondents correctly point out that the EPA Act does not operate in the way contended for by the Appellants. Thus EPA regulation 229 does not prevent even a proponent of a scheme from preparing and submitting an Environmental Impact Statement. 73 Nor is a person precluded from appearing in an expert role before the Land and Environment Court, merely because that expert held a representative capacity as agent for the owner seeking the development, or was remunerated by the owner for a professional role in the development; Talbot J in Aitchison v Leichhardt Municipal Council [2002] NSWLEC 226. Talbot J acknowledged that, although the architect in question was to get pecuniary benefits from the client, it was not suggested that the applicant architect had an interest beyond that of the architect engaged by the client. Talbot J held that the representative capacity of the architect as agent of the owner in that context, did not of itself transform his position and interests to that of the owner for all purposes so that he was not precluded from acting as an expert. It is true he drew upon the paramount obligation to act impartially in accordance with the relevant court Practice Direction overriding whatever obligation he may owe to his client. However, even absent such an express paramount obligation, the fact that someone has in contemplation a role as director of the trustee company, a role later assumed, and meanwhile acts as project manager does not, simply on those facts, have such a conflict of interests as to preclude him from providing a report in terms of Condition C6. The ANZECC and EPA guidelines do not preclude this though this is subject to what is explained later in relation to the EPA Manual which was later produced (Blue, 866). Nor does it preclude Council from accepting that report from a person with those associations. The assumption that Mr Kennedy could not fulfil both his obligation to his employer as project manager as set out in annexure B to the affidavit of Mr Ross of 18 May 2001, and his obligation to provide an objective report is simply not made out. There is no conflict of competing duties. As the Trial Judge concluded: "[55] It has not been established that the Council has been compromised because of Mr Kennedy's association with the owner of the land. The fact that Mr Kennedy was appointed project manager does not lead to the result that he was not competent to perform his professional role, nor that he or the Council have colluded to achieve the satisfaction of Condition C6." Red, 34 74 I should add that reports of Tricend Engineering in respect of the Development Application had, apart from one report, been prepared before Mr Kennedy became a director. However, the report prepared on 22 December 1999 was prepared after Mr Kennedy had become a director of CBCL Pty Limited. I agree with the Respondents' submission that that was of no consequence because his directorship did not give him any rights in the land or the trust units and, as the evidence makes clear, his appointment as a director was arranged as a matter of convenience for the onsite management of the project. That evidence was unchallenged and there was no evidence to the contrary. 75 Thus in relation to Ground 3, a disqualifying conflict of interest, that must fail. So too Ground 4, disputing the suitability of Mr Kennedy's qualifications. 76 I turn now to Ground 5, that "Cowdroy J disregarded principles in the ANZECC and EPA Guidelines". 77 The challenge based on this Ground, so far as related to the Appellants' contentions with regard to the ANZECC and EPA Guidelines as summarised as "the eight challenges made by the Applicants to the Tricend reports" are set out at para 34 of the judgment; see Red, 26 to 29. The Trial Judge then records the response of the Respondents in relation to which the Appellants take particular issue regarding the adequacy of the sampling and included in that, the use of composite sampling. 78 The Trial Judge at paras 46-7 concludes: "46. The ANZECC guidelines acknowledge that testing and reporting is essentially judgmental. The ANZECC guidelines state inter alia in relation to investigation levels:- Investigation levels provide a trigger to assist in judging whether a detailed investigation of a site is necessary. 47. The sampling guidelines (par [3.1]) also make specific provision for judgmental sampling patterns. Paragraph 3.2 of the sampling guidelines refers to a more intense sampling pattern which is applicable to detailed investigations. According to Mr Hogan such level of investigation would only be required if initial testing revealed contamination. In his opinion, such level of investigation was not required at the site." 79 I am satisfied that this conclusion was properly open to the Trial Judge. As Blue, 889 at para 3.1 of the EPA Guidelines makes clear: "A judgmental sampling pattern can be used where there is enough information on the probable locations of contamination. However a systematic sampling pattern across the whole site is recommended when such information is lacking." 80 In so concluding, the Trial Judge clearly accepts what is stated on behalf of the Respondents at para 40 (Red, 30) "40. Mr Kennedy had undertaken sampling below the site of the former evaporation ponds and in the locations of the proposed holiday cabins. Mr Kennedy explained his reasons as follows:- Samples were taken where it was suspected that contamination would most likely be present in the area where the proposed cabins and community building are to be located ie. Samples were taken where the risk to public health would be highest if soil contamination was present. … The samples taken were as representative as possible of the extent of likely or suspected contamination. It was decided after deliberation to locate the sites on the basis of topography and drainage lines and as mentioned adjacent to cabins 5 & 11. … In conclusion the soil contamination investigation, sampling methodology, testing and analysis have al been undertaken in accordance with the relevant EPA and ANZECC guidelines. 41. Mr Hogan did not consider that further sampling was required in view of his familiarity with the site and its past uses." 81 When this matter was argued before this Court on appeal, reference was also made to what is said in an EPA document titled "Contaminated Agricultural Land" in an "Environmental Protection Manual for Authorised Officers". It appears later in time (December 1995) than the earlier EPA draft Guidelines (Blue, 866 and following). It is certainly later in time than the January 1992 guidelines of ANZECC at Blue, 895 and following. It appears from a reading of the Trial Judge's judgment that it was these two earlier guidelines rather than that later document which were central to his consideration. These were also the documents which the Applicants principally relied upon in framing the challenges that they brought. Indeed the eight challenges make no reference to any challenge based upon the later EPA document. It is however described as Exhibit 6 and endorsed upon it in handwriting are the words "Contaminated Agricultural Land Guideline". At Blue, 1020 and following is said under the heading "Consultants": "Consultants One of the primary requirements of any investigation is that it must be done by an independent assessor. As neither the EPA nor the local council will have the resources to do such work, it is generally left up to the developer to hire a consultant. In this State there is currently no system for accrediting environmental consultants. Minimum qualifications for consultants are provided in the 1992 ANZECC guidelines. For industrial contamination issues the EPA generally requires consultants to be able to comply with these requirements. However, an inherent problem related to contaminated agricultural land is that because developers or home owners must pay for the investigation the cost is a major consideration. Almost all the environmental consultants are based in the major cities; this raises the cost of investigations of contaminated agricultural land in rural areas. …… To identify potentially contaminated agricultural land, start with a historical review, followed by soil testing if necessary. An expert consultant must be called in, at least initially." 82 Before dealing with what is said under the heading "Consultants", I should say that it is doubtful what if any additional guidance it offers for these reasons: (a) The document titled Contaminated Agricultural Land appears to be from the Environment Protection Manual, not a document purporting to provide guidelines; (b) The aim of the document is to discuss how contaminated agricultural land can be identified, assessed and managed; (c) The document grew from the experience of officers in the EPA's North Coast Office in managing contaminated land; (d) It refers to other documents as giving the framework for investigating contaminated land, in particular that ANZECC guidelines, which say nothing about the "independent assessor", whilst the EPA has prepared the draft guidelines for specific issues regarding contaminated land (referred to at Blue, 866); (e) It then looks to the process of identifying contaminants and discusses common contaminants; (f) There are a number of references to merely anecdotal past experiences; (g) Specifically on the need for independent assessors there is no cross-reference to another guideline as there is in other sections; reference is made to an ANZECC requirement (Blue, 895 and following) that there be minimum qualifications for consultants, but a close reading of the ANZECC guideline of January 1992 (at Blue, 895 and following) does not reveal the paragraph supposedly laying down such minimum qualifications; (h) At page 9 of the document (Blue, 1022), there is a direction to refer to the EPA's draft guidelines for more information, evidently treating that as the more comprehensive document; (i) There is a disclaimer on the use of the document (at Blue, 1028); (j) Under summary (Blue, 1027) it states: "To identify potentially contaminated agricultural land, start with a historical review, followed by soil testing if necessary. An expert consultant must be called in, at least initially." 83 Importantly, the introduction to the manual states that "[t]he information is not prescriptive except where statutory standards or controls are mentioned". 84 The evidence of Mr Hogan, the Council's authorised officer, includes reference to the EPA Manual document (Black, 186E to J), though the primary reference appears to be to the earlier EPA document and the ANZECC document to which I have referred. Importantly (at 186P) Mr Hogan when examined in chief emphasises that these guidelines are that and nothing more; in other words they are there to guide but are not prescriptive. Q. Mr Hogan when one considers those documents, is there some consistency between them, in terms of how one should approach testing for contaminated land? A. Yes. The purpose of the documents is to provide - or is to guide consultants in the presentation of reports so they are in a reasonably consistent manner across the State.

Q. These guidelines, as you said across the State, they are meant to apply broadly in all situations? A. Well, obviously with any guideline a consultant needs to interpret the guideline and apply that part that is relevant to the investigation he is doing as well. I mean you can't read it like a recipe book.

Q. You can't tick off points. You've got to - they guide you. Their there to guide or … A. That's right. If you use it as a recipe book - if you fall into the trap of - if you use it as a check list, the check should be - becomes the focus of your investigation rather than guiding you in your investigation." 85 Accordingly, I am not satisfied that, whatever be the status of the manual, the guidelines taken as a whole required that only someone could be used for the report whose name appeared in the list of independent environmental auditors referred to only in the Manual (Blue, 1029). Nor am I satisfied that even if the guidelines did so provide, Condition C6 adopts that aspect of the guidelines. Condition C6 itself mandates merely that the person be "a suitably qualified person". Not that they be an "independent environmental auditor", taken from the Manual's list. There is simply no reference in C6 to any requirement to use someone from the list, who is independent . If independence and freedom from any association with the developer were mandated by Condition C6, one would expect that the reference in C6 would not have been merely to a "suitably qualified person"; there would have been specific elaboration of that by reference to "independent environmental auditor" in terms of the Manual. That the report "is to be prepared in accordance with ANZECC and EPA guidelines" emphasises that reference is being made to how the report is to be prepared, not to the status of its author; that is to say, to the underlying work required in the way of sampling and the like. That was how the Trial Judge evidently understood Condition C6, and correctly in my judgment. Thus I conclude there was no departure in any relevant sense from the guidelines, by reason of Mr Kennedy's known association with the developer or his directorship of the trustee company. 86 I thus conclude that none of these Grounds 3 to 5 have been made out.

Ground 7: His Honour erred in disregarding significant internal inconsistencies in the evidence of the Respondents' expert witnesses 87 The Respondents respond in their written submissions to this Ground in the following terms and I would accept those submissions: "47. The substance of this ground appears to be set out in paragraph 55 of the first appellant's "Amended Points of Claim" dated 14/6/2002, which the first respondent has taken to be the first appellants written submissions. Mr Alderson's affidavit in reply was accepted into evidence over the objection of the respondents. There is no basis for the submission that His Honour failed to take it into account. However, His Honour impliedly rejected the evidence on the basis that it was irrelevant in Judicial Review Proceedings. Even had it not been rejected, the weight that could have been given to it in the face of a conflict of opinion between Mr Hogan as the decision maker (and qualified expert) and Mr Alderson, rendered Mr Alderson's opinions (which were not before Mr Hogan or the Council at the time the decisions were made) of no relevance. In any case, Cowdroy J was satisfied that the decision of Mr Hogan and the Council as to absence of risk of contamination was well founded. 48. In this regard, the appellants appear to misunderstand the role of the reviewing Court in Judicial Review Proceedings, and to be attempting to re-litigate the matter decided by Bignold J.

Ground 8: His Honour erred in accepting the oral evidence of the Council's expert officer as indicative of the elected Council's satisfaction regarding consent Condition C6 88 It is clear Council was itself satisfied that consent Condition C6 had been satisfied (Blue, 778).

OVERALL CONCLUSION 89 Even apart from the fundamental difficulty in the way of the Appellants by reason of the lack of any statutory basis for the orders sought, and in the absence of CBCL as a party, none of the grounds of appeal are made out upon which any orders would depend. I propose that the Appellants' appeal be dismissed and that the Appellants pay the Respondents' costs of this appeal. I deal separately with the costs judgment.

COSTS INTRODUCTION 90 These proceedings (CA 40630/02) relate only to costs pertaining to earlier proceedings (LEC 40064/00) the subject of separate appeal before Cowdroy J in the Land and Environment Court ("the original proceedings"). Byron Shire Council ("the Council"), some three months since judgment was handed down, applies for leave to appeal and, if granted, a concurrent hearing of the appeal. This is to appeal against Cowdroy J's order in the original proceedings, in which the Council were wholly successful, that no order for costs should be made. The Council seeks to have substituted an order for costs in its favour. The principal proceedings by way of appeal (CA 40731/01) have now been determined in favour of the Council, in a judgment issued concurrently with this judgment. Cowdroy J considered that no order for costs should be made, essentially because, according to the Trial Judge, the Council's conduct created the perception that Council, by its subsequent conduct, resiled from its earlier decision that Condition C6 was satisfied. This was because Council sought to carry out a further contamination audit, though the attempt to do so failed, being successfully resisted by the First Respondent. Cowdroy J concluded that by that conduct "the Council has generated doubt and uncertainty which has encouraged the Applicants to engage in this litigation. It has thereby disentitled itself to any order for costs". Council seeks leave to appeal, advancing a number of reasons why it considers that the Trial Judge's discretion miscarried. Argument on the leave application, and if granted the appeal itself, has been by written submission, thus not adding to the hearing time for the appeal. 91 Leave is required as the determination of Cowdroy J relates to a discretionary costs judgment, within s101(2)(c) of the Supreme Court Act. There was no affidavit evidence of the quantum of costs claimed, apart from the statement that the costs are clearly significant. The substantive hearing on the first matter occupied seven days and the later argument on costs two days. Leave to file the application for leave out of time was granted by this Court, following judgment on the costs matter delivered on 14 March 2002.

SALIENT FACTS 92 I have earlier set out a brief overview of the circumstances of this separate application for leave to appeal and, if granted, the appeal itself to be heard concurrently. The salient facts were as follows. 93 Following two days of hearing on costs and having earlier determined the then Applicants' substantive proceedings against the Applicants, Cowdroy J on 14 March 2002 gave judgment on costs. 94 The Council by Notice of Motion sought an order for costs of the proceedings. The Second Respondent also sought its costs. On 14 March 2002 giving reasons, Cowdroy J ordered that the Plaintiff pay the First Respondent's costs. At [7] Cowdroy J concludes: "[7] An award of costs operates by way of indemnity for the successful party (see Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J). The first respondent [the developer] met the case brought against it by the applicants and has engaged in no conduct that unnecessarily prolonged the litigation or inequitably increased the costs incurred. None of the grounds alleged by the applicants against the first respondent were proved. Accordingly the first respondent is entitled to be compensated for its costs." 95 So far as the Second Respondent is concerned, the Trial Judge concluded as follows: "8. In their final submissions dated 22 February 2002 the applicants state:- All we the Applicants ever wanted was a credible site investigation by an independent party. We persuaded the Council that such was the wisest course, but the developer refused access to the site. This Court effectively upheld the developer's refusal. Under the circumstances we do not see why we, having come up with a simple common-sense and low-cost solution which the Council was willing to underwrite should bear the Respondent's costs. The affidavit of Council's planning director Chris Pratt (attached) confirms at (paras 10 & 11) Council's shared view that this was an approach that might avoid further litigation. 9. By 14 March 2000 the council was aware that contamination n the site was a matter of great contention. The issue of contamination of the development site had been raised by the applicants on 30 June 1997, prior to council's resolution to approve the development application. Whilst the council argues that it was entitled to rely upon the judgment in Hamill v Byron Shire Council to authorise it to proceed with the granting of consent for development of the subject site, the agitation by the applicants continued. 10. Accordingly prior to the adoption of its resolution on 14 March 2000 that condition C6 of Development Application No. 95/0428 had been satisfied, the council was placed on notice that the applicants vehemently challenged the adequacy of the soil testing. However having granted development consent, and having determined that condition C6 had been satisfied, council resolved to apply to the Court for an order that further soil testing be undertaken. 11. By Notice of Motion dated 26 July 2000 the council sought an order from the Court permitting it to enter onto the land of the first respondent for the purpose of carrying out a contamination audit. The affidavit of Christopher Pratt, Director of Local Approvals and Compliance Services of the council sworn on 10 August 2000 and filed in support of such application, relevantly states:- 8. At its Meeting of 26 April 2000 the Council resolved: 'That Council adopt the suggestion in EPA guidelines and in reference to the Development Application 95/0428 ( Dudley Pastoral Co ) and obtain an independent contamination audit with specific reference to: (a) The effluent holding pond area, the former dairy area and the former dip site at the entrance to the property. (b) Heavy metals, arsenic and other contaminants not addressed in previous audits. A copy of this resolution is annexed hereto and marked "B". 9. In about June 2000 I received verbal advice from Mr Wroth Wall Solicitor for the first Respondent that his client was unwilling to allow any further soil testing on the subject land. 10. The Council is prepared to fund a further contamination audit of the first Respondent's land. 11. I am of the opinion that the granting of the Orders sought in this Notice of Motion thus allowing the subsequent independent contamination audit of the subject land to occur may resolve most or all of the issues which have given rise to these proceedings. 12. The application was made subsequent to the grant of development consent. The Court had no power to grant the application and it was dismissed (see Fast Buck$ & Anor v Dudley Pastoral Co Pty Limited & Anor 27 October 2000: unreported). However the application may well have succeeded if it had been made prior to council's resolution of 14 March 2000. 13. It is inexplicable that within six weeks of deciding that the soil testing was adequate council should decide otherwise and make the application for further soil testing. Council's conduct justifiably created the perception that the council, having resolved to accept that condition C6 was satisfied, was resiling from its decision. To apply to this court for an order for further soil testing after the litigation commenced only served to confuse the issues. If council harboured any doubts it should have required the first respondent to undertake further soil testing prior to adoption of its resolution of satisfaction of condition C6. Had such step been undertaken this litigation may well have been avoided or at least the issues confined. 14. The Court is therefore satisfied that the council has generated doubt and uncertainty which has encouraged the applicants to engage in this litigation. It has thereby disentitled itself to any order for costs." 96 The result is that though the Council was wholly successful following an extensive seven day hearing, no order for costs were made in its favour for the reasons stated above. The basis for finding disentitling conduct is based upon a series of propositions which require examination. (i) The primary propositions basing no order for costs was that Council, in seeking to have further contamination testing done, notwithstanding its earlier conclusion that Condition C6 was satisfied must be taken by its conduct to have " justifiably created the perception that the Council, having resolved to accept the condition C6 was satisfied, was resiling from its decision." That was solely a matter of inference. It was made by the Trial Judge in setting aside the ordinary rule that costs follow the event. That setting aside would require the unsuccessful party to establish the basis for disentitling conduct. The inference is at least equally open that Council's conduct in those circumstances was directed to avoiding litigation from the Appellants and was so understood, rather than representing any resiling from its earlier position. And indeed, as its conduct of the litigation demonstrated, when that attempt failed, there was no resiling. The attempt failed, as the First Respondent was not willing to give access to its land for the purpose of further contamination testing. In Oshlack v Richmond River Council [1998] 193 CLR 72 at 97, McHugh J explains by example what is meant by "disentitling conduct". It refers to misconduct relating to the litigation or to the circumstances leading up to the litigation, exemplified by lax conduct effectively inviting the litigation, unnecessarily protracting the proceedings, succeeding on a point not argued before a lower court, prosecuting the matter solely for the purpose of increasing the costs recoverable or obtaining relief which the unsuccessful party had already offered in settlement of the dispute. These examples are of course not exhaustive. But whatever be the scope of misconduct, it is inconceivable that it could extend to taking steps to avert litigation, though not certain to do so. That it thereby created the perception at the time, that the Council was resiling from its legal position, even if correct, is refuted by Council's subsequent clear steps to carry on the litigation when its attempt to avert that litigation failed. It is perfectly common for a person to maintain a legal position while looking for compromise to avert litigation. The Opponents' own submissions state "the Opponents at all times made clear their position that if the subject site were to be tested for contamination by an EPA-accredited consultant the litigation now under review would be withdrawn." That points certainly to an expectation that such a compromise was possible. But expectation of any resiling, if such there were, based on Council's willingness to pursue that step is less easily justified. But even if there were initially engendered such expectation it must have been wholly dispelled by Council's subsequent conduct continuing its defence to the litigation once the attempt failed. That is hardly disentitling conduct. It would be incongruous indeed if a genuine attempt to avoid litigation were used to justify the denial of cost orders which otherwise would be awarded to the party seeking to avoid litigation which proves unavoidable. Such reasonable conduct is hardly misconduct relating to the litigation, of the kind justifying such a sanction. (ii) It is suggested that, had the application for access to the developer's land been made prior to the Council's resolution of 14 March 2000 at which the Council resolved that Condition C6 had been satisfied, the application may well have succeeded ([12] of the Judgment). Cowdroy J elaborated that " if Council harboured any doubts it should have required the First Respondent to undertake further soil testing prior to adoption of its resolution of satisfaction of Condition C6. Had such step been undertaken this litigation may well have been avoided or at least the issues confined ." [emphasis added] (iii) The premise appears to be that prior to the Council resolving as it did on 14 March 2000, application for access to the First Respondent's land for further soil testing could not have been successfully resisted. But this ignores the fact that Condition C6 permitted delegation of approval of the report to Council's Environmental Health Office. Indeed in the memorandum sent to all councillors the relevant director recommends "that the applicant be advised that the report prepared by Tricend Engineering on behalf of Dudley Pastoral Pty Limited satisfactorily meets the requirements of Condition C6 of Development Application No. 95/0428" (Blue, 736). Moreover, at Blue, 743 under the heading "Background" reference is made to the earlier proceedings before Bignold J. Mr Hogan is quoted as having concluded "that the report was prepared in accordance with the EPA and ANZECC guidelines and satisfied Condition C6 of the Development Consent." (Blue, 743). (iv) The foregoing indicates that Council's actions on 14 March 2000 in resolving "that the applicant be advised that the report prepared … does satisfactorily meet the requirements of Condition C6 as Development Application No. 95/0428" actually by its terms presupposed that there had been both an effective delegation of the required approval to Mr Hogan and that that approval had been given by him, with the result that Condition C6 was satisfied prior to 14 March 2000. If correct, it would follow that the application for access to the land for the purposes of preparing a new contamination report may still have failed. This is so, even if it had been made prior to Council's resolution of 14 March 2000. There was no necessity for Council to resolve, as it did on 14 March 2000 save in the mechanical sense of resolving, as Council did, that the Applicant be advised of that result. Advising the Applicant could only be a mechanical step and not an essential one for the Condition C6 to be satisfied. (v) Finally, it is concluded that "the Council has generated doubt and uncertainty which has encouraged the Applicants to engage in this litigation"; [14] of Judgment. 97 But this last proposition, as the Claimant correctly points out, fails to take into account a number of highly relevant considerations, namely: (a) there was no evidence to support the conclusion that had independent testing been done then, as a matter of fact, the Applicants would have been satisfied and they would not have commenced the litigation; after all, they well may have sought to litigate that remediation was required, not merely independent testing to see if remediation were required; (b) as I have earlier said, the Trial Judge overlooks the significant fact that, following refusal of the Motion seeking access to the property, Council did maintain its opposition to the orders sought, so that the Trial Judge failed to take into account that any conceivable doubt created by the resolution of 26 April 2000 must have evaporated after Council maintained its opposition to the order; (c) the significant fact is also overlooked that the resolution of 26 April 2000 could in no way affect the legal position of the 14 March resolution, nor the basis for the council's satisfaction, when it so resolved on 14 March 2000; following earlier exercise of delegated power; (d) even if it be correct (as must be doubtful) that Council could have forced the developer to agree to access for contamination testing provided it had acted before its resolution of 14 March 2000, and not after, it does not follow that it was disentitling conduct to have only acted after that date, as there was no suggestion that Council was in that regard acting in bad faith from even the Opponents. 98 There can be no doubt that Cowdroy J correctly stated the relevant principles, by reference to what is said in Oshlack v Richmond River Council. 99 The real question is whether, error having occurred in the exercise of the Trial Judge's discretion, as I am satisfied there was (compare House v the King (1936) 55 CLR 499 at 504-5) nonetheless leave to appeal should be denied. 100 The Opponents in their written submissions of 3 March 2003 state a number of reasons why they contend that leave should not be granted. 101 First it is said, "the Claimant has provided no reasons for the failure to lodge the appeal within time in those circumstances which might justify an extension." 102 However, a reading of the affidavit of Mr Stephen Patterson of 19 July 2002 does give reasons, albeit brief, in terms of the steps taken following the judgment of Cowdroy J on costs given on 14 March 2002. The delay, over and above the twenty-eight days allowed, was of some three months, with the application for leave being filed on 19 July 2003. 103 It is said that there is prejudice to the First Opponent "in that had he known of the cross-appeal from the onset he might have withdrawn from the main proceedings before incurring further substantial costs and investing time and effort. The First Opponent was at one stage close to abandoning the appeal and knowledge of a cross-challenge might have been decisive." 104 The force of this argument is substantially diminished when it is appreciated, first, that the First Opponent was self-represented and more importantly, that he had from 19 July 2003 full knowledge that leave to appeal was being sought. Yet he still chose to pursue the main proceedings, which only came on for hearing in March of this year. I would not therefore place any weight on this factor. 105 Then it is said "the cross-appeal has necessitated the joining of the Second Applicant, thereby exacerbating costs further." 106 It is difficult to see how application for leave and the determination of those proceedings on written submissions only, when the substantive proceedings have not been extended in any way otherwise, could have resulted in any significant addition to costs and certainly not by reason of the three month delay in filing the application for leave. 107 This is not a matter where the costs involved are likely to be minor; there was a seven day hearing of the substantive proceedings and a two day hearing on costs. 108 As to reasons why leave to appeal should be granted, as earlier shown the Claimant for leave to appeal had from the outset a strong case. The appeal involves a substantial sum of money and was able to be dealt with at the same time as the appeal on the substantial proceedings and thus has not added significantly to the time for hearing of that appeal. 109 In all the circumstances and having regard to the substantial sum likely to be represented by costs, leave to appeal should be granted.

OVERALL CONCLUSION 110 I would propose that leave to appeal be granted from that part of the decision of Cowdroy J made on 14 March 2002 wherein he ordered that no order for costs be made in favour of the Claimant being the Second Respondent. 111 I propose the following orders: 1. That order 2 of Cowdroy J made on 14 March 2002 be set aside. 2. The Respondents pay the Appellants' costs in the court below and of this appeal.

ORDERS 112 In proceedings 40731/01 - 1. Appeal dismissed. 2. Appellants pay respondents' costs.

In proceedings 40630/02 - 1. Extend the time for applying for leave to appeal up to and including 19 July 2002. 2 Grant leave to appeal and direct the filing of the notice of appeal within 7 days. 3. Appeal allowed. 4. Set aside the order that no order for costs be made in favour of the second respondent, and in lieu thereof order that the applicants pay the costs of the second respondent. 5. Opponents/respondents pay claimant/appellant's costs. **********

Last Modified: 05/29/2003 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.

Land and Environment Act 1979(NSW)

CITATION : Fast Buck$ & 1 Ors v Dudley Pastoral Co P/L & 1 Ors; Byron Shire Council v Fast Buck$ & 1 Ors [2003] NSWCA 126 HEARING DATE(S) : 28/02/2003 JUDGMENT DATE : 21 May 2003

CATCHWORDS : PRACTICE AND PROCEDURE - fundamental difficulty with notice of appeal - no jurisdictional basis for relief sought - PRACTICE AND PROCEDURE - fundamental difficulty with pleadings - relevant party not joined to proceedings - where even if relief could and should be given unable to do so because the relevant party not joined - ENVIRONMENTAL AND PLANNING LAW - whether requirement that the person making a report on site contamination be independent - whether any requirement in the Environmental Planning and Assessment Act or Regulations - whether any requirement in ANZECC or EPA guidelines - whether any requirement in condition attached to development consent - COSTS - where claimant wholly successful at first instance - whether conduct at relevant time disentitled the successful claimant to an order for costs in the case at first instance - whether claimant's actions amounted to disentitling conduct Environmental Planning and Assessment Act 1979 s4; s80; s90; s91; s123, s124 LEGISLATION CITED : EPA regulation 229 Supreme Court Act s101(2)(c) Aitchison v Leichhardt Municipal Council [2002] NSWLEC 226 CASES CITED : Hamill v Byron Shire Council and Dudley Pastoral Co Pty Limited (LEC No. 40249/97, Bignold J, 31 March 1998, unreported) House v the King (1936) 55 CLR 499 Oshlack v Richmond River Council [1998] 193 CLR 72 CA 40431/01: Fast Buck$ and Terry Hamill (Appellants) Dudley Pastoral Co Pty Limited (First Respondent) PARTIES : Byron Shire Council (Second Respondents)

At a glance

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Judgment (23 paragraphs)

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