Inglis v Buckley

Inglis v Buckley - [2023] NSWLEC 113 - NSWLEC 2023 case summary — Zoe

JUDGMENT

In Inglis v Buckley [2023] NSWLEC 77 (Inglis v Buckley) the Applicant Mr Inglis sought judicial review of the grant of development consent DA 2022/0023 dated 19 May 2022 (the Development Consent) by the Second Respondent Snowy Valleys Council (the Council) to the First Respondent in respect of land located in Goobarragandra Road (Walls Creek Road East), Goobarragandra (the Land). I declared the Development Consent was invalid and void as the Council failed to form the requisite state of satisfaction required under cl 4.2C(3)(c) of the Tumut Local Environmental Plan 2012 (NSW) (TLEP) and reserved costs.
The First Respondent Mr Buckley filed a submitting appearing save as to costs. The Council's role in the proceeding was said to be limited to making submissions on powers and procedures and any question of law if requested by the Court as recorded at [2] of Inglis v Buckley. It did also adduce evidence, an affidavit of Mr Wilton council officer dated 21 April 2023 which was tendered and read at the hearing. The Council's role was essentially to participate to assist the Court. The Applicant as the successful party seeks all of his legal costs.
The first ground of judicial review alleged a failure that the Council failed to form the requisite state of satisfaction required by cl 4.2C(3)(c) of the TLEP namely that the potential for land use conflict will not be increased as a result of the subdivision and was successful.
The second ground of judicial review was added in the Further Amended Summons dated 13 April 2023 permitted to be relied on by the Applicant on 24 April 2023 the first day of the hearing. The argument in relation to this ground evolved over the course of the hearing as reflected in the second issue identified in Inglis v Buckley at [10]. How the second issue evolved over the course of the hearing is identified at [60]-[62] in Inglis v Buckley, with the late arrival of Mr Wilton's affidavit concerning the existence of standard conditions of consent and acceptance by the Council that the imposition of condition 7 of the Development Consent was beyond power. I decided I did not need to resolve the second ground and declined to do so as the state of argument was not as developed as desirable on a complex issue at [82].
Section 98 of the Civil Procedure Act 2005 (NSW) confers wide discretion on the court to determine costs, to be exercised judicially 'in accordance with established principles and factors directly connected with the litigation': Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (Oshlack) at 96 (in a dissenting judgment of McHugh J), cited with approval in Lee Environmental Planning Pty Ltd v Reulie Land Co Pty Ltd [2020] NSWCA 254 (Reulie CA) at [38]. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) states that the usual rule is that costs follow the event unless it appears to the court that some other order should be made. Rule 42.1 applies in Class 4 matters before the Court pursuant to r 1.5 and Sch 1 Col 2 of the UCPR.
All parties made submissions on costs and agreed I could determine the issue on the papers. Two affidavits were also relied on without objection.
An affidavit of Mr Kingston the Council's solicitor affirmed 11 August 2023 relied on by the Council annexes email and letter correspondence dated from 20 July to 26 October 2023 between the First Respondent and the Council as to their respective positions on costs. Relevant correspondence is summarised as follows: 1. On 20 July 2023 the Council sent an email to the First Respondent providing a copy of the judgment and advising that the respondents have until 11 August 2023 to make submissions to the Judge's Associate regarding the payment of the Applicant's costs and a timetable for the parties to be heard on the matter (if required). 2. On 26 July 2023 the Council received a letter from the First Respondent advising the First Respondent would be seeking indemnification from the Council for any costs payable to the Applicant as the appeal arose from an error made by the Council when determining the original development application. 3. On 3 August 2023, the Council sent an email to the First Respondent relevantly advising the First Respondent that, in the event the Court determines to award costs in favour of the Applicant, those costs limited only as to ground 1 should be shared between the Council and the First Respondent on the basis that: 1. the proceeding having been instituted, the First Respondent had the opportunity to surrender the consent; 2. the parties made enquiries with the First Respondent as to whether he intended to surrender the consent; and 3. the First Respondent chose not to surrender the consent.
An affidavit of Mr Buckley son of the First Respondent sworn 18 August 2023 attests to conversations with council staff about options to deal with the Applicant's application including surrender of the Development Consent, defending the proceeding or lodging a new development application. Annexed to the affidavit is correspondence from council staff dated 12 October 2022 setting out a draft response to surrender the Development Consent, which Mr Buckley states he did not request. Subsequent to the First Respondent's conversations with council staff, he sought legal advice and a submitting appearance was filed.

[4]

Conduct of First Respondent

The burden of paying costs should be borne by both the Council and the First Respondent. First, the First Respondent was provided with an opportunity to surrender the Development Consent being challenged (see above in [8]) by the Council on 12 October 2022 which was declined. Reulie CA considered such an event in similar terms.
While the facts in the present proceeding differ from those in Reulie CA the Council submits that the conduct of the First Respondent is a relevant matter to consider in the exercise of the Court's costs discretion. In this proceeding, the First Respondent (in chronological order): 1. was informed of the role of the Council (by letter dated 11 October 2022 referred to in [2] of Inglis v Buckley); 2. provided with an opportunity to surrender the Development Consent; 3. determined not to surrender the Development Consent and communicated this to the Council; 4. filed a submitting appearance; and 5. did not seek to defend the Development Consent and thus deprived the Court of a contradictor.
While the above is not to suggest there was any obligation for the Frist Respondent to surrender the Development Consent, the Council submits that in the circumstances there ought to be a departure from the ordinary rule that no order for costs should be made against a submitting party.
The general guidance in Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463 (Cutcliffe) and Brown v Randwick City Council (No 2) [2012] NSWLEC 28 does not apply to the facts of this proceeding relying on Platford v van Veenendaal and Shoalhaven City Council (No 2) [2018] NSWLEC 86 (Platford) at [21]. If the Court decides to make a costs order against the Council the First Respondent should also be liable.
Secondly, the First Respondent failed to alert the Council to the role of cl 4.2C(3)(c) as a jurisdictional prerequisite in the material provided to accompany the development application and this contributed in part to the findings in ground 1. The First Respondent had a responsibility to provide adequate information to the Council: Platford at [28]. Platford was applied in Reulie CA at [40].
Inglis v Buckley at [12]-[14] considered extracts from: 1. the statement of environmental effects prepared by Gray Surveyors (engaged by the First Respondent) dated 24 November 2021; 2. email correspondence from Gray Surveyors to the Council dated 8 December 2021; and 3. a letter from the First Respondent (or his representative) to the Council dated 16 March 2022.
These documents failed to address or avert the Council to the requirement at cl 4.2C(3)(c) and in doing so failed to accurately characterise or consider the proposed development. If the First Respondent had addressed or averted the Council to the requirement at cl 4.2C(3)(c): 1. Council officers would have been required to deal with this requirement in assessing the development application and preparing the management reports in relation to the development application; and 2. this may have altered the Court's finding at [54] of Inglis v Buckley.
This is not proposing costs on a punitive basis rather the conduct of the First Respondent contributed to the outcome in the proceeding in such a way that any costs order made against the Council should be shared.
In reply to the principles relied on by the First Respondent, the Council stated that the facts of Sidney Harrison Pty Ltd v Corporation of the City of Tea Tree Gully (2001) 112 LGERA 327; [2001] SASC 34 (Sidney Harrison) differ substantially to the present proceeding and the finding of the Court in that case can be distinguished on that basis.
In reply the Council submitted that the First Respondent could have adduced evidence as to the relevant state of satisfaction of the Council as the management reports, council meeting agendas, council meeting minutes and transcript were publicly available. The First Respondent had sent a letter to the Council dated 17 March 2022 extracted at [14] of Inglis v Buckley imploring the Council to apply its standard conditions to the development. The First Respondent has failed to establish that he could not assist the Court in circumstances whether the First Respondent was aware of the Council's role in the proceeding prior to filing a submitting appearance. Further, the First Respondent in failing to surrender the consent and filing a submitting appearance put the Applicant to proof.

[5]

No costs for ground 2

In the event the Court determines that the Council is to pay a portion of the Applicant's costs, those costs should be limited only to costs in relation to ground 1 and the first day of the hearing on 24 April 2023.
On the first day of the hearing, leave was granted for the Applicant to raise ground 2 and the Applicant's formulation of ground 2 changed throughout the course of the hearing. The complexities raised in this ground resulted in a second hearing day being required for the proceeding. In this regard, at paragraph [82] of Inglis v Buckley the Court found: 1. it was "strictly unnecessary to resolve ground 2 which has some complexity in the particular circumstances of this case and in relation to which the evidence evolved during the hearing"; and 2. "I do not consider the matter was fully argued before me."
There was no new information which meant that ground 2 was not able to be raised earlier in the proceeding and if that had been the case it is possible that the First Respondent or the Council would have taken a different role in the proceeding, or the First Respondent may have changed its position with respect to the surrender of the Development Consent.
In the context of the proceeding, the late amendment of the Summons and the introduction of ground 2 constitutes something out of the ordinary that would justify a departure from the usual costs rule such that any cost order made against the Council should be limited to ground 1: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157; [2010] NSWCA 39 at 162.
In reply to the Applicant's criticism below in [40], the Council did not oppose the grant of leave to rely on ground 2 due to its limited role in the proceeding. The Council also submits the terms of ground 2 were amended by the Applicant during the course of the proceeding.
In reply to the Applicant's submission below in [44], the Council rejects the submission that ground 2 was not 'clearly dominant or separable' from ground 1. Ground 2 gave rise to the need for cross examination of Mr Wilton and took up considerable time in oral submissions from both the Applicant and the Council. The introduction of ground 2 resulted in the parties being put to the time and expense of a second hearing day which would not have otherwise occurred.

[7]

First Respondent's submissions

The First Respondent accepts that the Applicant should obtain his costs given his success in the proceeding. The Council wrote to the First Respondent on 3 August 2023 stating that the Council should not be liable to pay any costs, that any costs order should be shared with the First Respondent because he did not surrender the Development Consent and that costs should be limited to ground 1 (see above in [7(3)]).
The Council should be ordered to pay the Applicant's costs of the proceeding as agreed or assessed. As the First Respondent is not aware of the circumstances concerning ground 2, he is not able to comment on whether those costs ought be paid.
If the Court is minded to make an order that the Council pay the Applicant's costs of the proceeding, the First Respondent seeks an order that the Council pay his costs of the determination of the question of costs given that he indicated a willingness to submit to the orders of the Court at an early stage and there is no reasonable basis as to why he ought to be responsible for the costs of any of the parties in the particular circumstances of the case.
No provision in the Civil Procedure Act deals with costs consequences where a submitting appearance is filed pursuant to r 6.11 of the UCPR or a party abides by the Hardiman principle.
The real issues in dispute in the proceeding in ground 1 was whether the Council formed the requisite state of satisfaction required by cl 4.2C(3)(c) of the TLEP. To the extent that ground 1 raised sufficiency of information before the Council to make the decision: 1. the agreed questions for determination at [10] of Inglis v Buckley did not specifically seek determination of that matter; 2. there was no adverse finding on that matter; 3. the Council conceded that the imposition of condition 7 was intended to 'ensure impacts associated with the development are appropriately managed' and that the circumstances of its imposition were unlawful. There was no finding as to whether such a condition could have satisfied the requirements of clause 4.2C of the TLEP; 4. there was no evidence that the Council had the text of cl 4.2C before it and understood the requisite state of satisfaction to be formed. That was required as a condition precedent to considering any information lodged; 5. the Council had the benefit of a report from council staff addressing cl 4.2C of the TLEP, but it took a contrary position in the absence of further consideration of the clause, and in the absence of any specific consideration of the text of the clause; and 6. the applicant had made a submission regarding the impacts of the development and there was no evidence that the Council had considered it, save for an 'assumed awareness' of the concern. That information was directly relevant to the consideration of cl 4.2C and something more than an 'awareness' was required.
The First Respondent should not be liable for the Applicant's costs or his costs of arguing these costs proceeding.

[9]

No apportionment of costs

Apportionment of costs in relation to ground 2 should not be made. All the Applicant's costs ought be paid. The Council did not oppose the grant of leave to rely on Ground 2 on the first day of the hearing. It was alerted to the Applicant's intention not later than 13 April 2023 when the Applicant filed a motion to amend his Summons. While it is readily acknowledged this was relatively late in the process, it was more than a week before the hearing and it cannot be said the Council lacked an opportunity to address the issue or to object to the amendment.
The principles relating to apportionment of costs are set out in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 3) [2007] NSWLEC 569 (F & D Bonaccorso) at [15]-[17] per Biscoe. In Brown at [11] per Preston CJ: What is clear from these summaries of principles is that the mere fact that an applicant does not succeed on all issues raised in the proceedings is not sufficient by itself for the Court to depart from the usual rule and instead award costs only with respect to the issues on which the applicant did succeed. The issues on which the applicant did not succeed need to be "clearly dominant or separable" or "clearly discrete" from those on which the applicant did succeed: James v Surf Road Nominees (No 2) at [32] and [34] respectively. In determining the discreteness of the issues, it is relevant to consider whether the time taken on each issue, at the hearing and in evidence, can be identified or realistically estimated: James v Surf Road Nominees (No 2) at [35]. It may also be relevant to consider whether the issues on which the applicant did not succeed lacked real merit: see Centro Properties Ltd v Hurstville City Council at [21] and [23] and similar comments in the dicta quoted in [14], [16] and [20] and in McCallum v Sandercock (No 2) at [49(e)].
Ground 2 was not determined and did not need to be determined given the finding in ground 1. It was not an issue on which the Council was successful, or the Applicant unsuccessful, in the manner which arose in the above cited cases F & D Bonaccorso and Brown or in other cases such as Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170 or McCallum v Sandercock (No 2) [2011] NSWLEC 203.
As observed in Inglis v Buckley at [73], the argument regarding ground 2 evolved during the hearing because of affidavit evidence from Mr Wilton council officer produced during the hearing. That the issue was not determined, or even that it was not fully argued, does not lead to a conclusion that it was without merit or frivolous. If anything, it points to it being a legitimate, if complicated, issue to raise.
Ground 2 was not 'clearly dominant or separable' from ground 1, both relating to the consideration and determination of the Development Consent by the Council, and notably did not call for additional or different relief from ground 1.
The Applicant's primary position is that apportionment of costs is not appropriate in the circumstances of the case in which ground 2 was not determined, rather than being actually determined in the Respondents' favour. However, if the Court finds otherwise, then the Applicant submits that ground 2 occupied a relatively small portion of time at the hearing, comprising mainly part of Mr Wilton's oral evidence and submissions. A much greater proportion of hearing time was occupied by the task of establishing ground 1, on which the Applicant was successful, which included the need to traverse all the material before the Council in order to establish the negative proposition that the Councillors had not formed a requisite state of satisfaction.
Accordingly, the Applicant seeks an order that the Respondent pay his whole costs of the proceeding and not a proportion.

[10]

Consideration

I gratefully adopt, and set out below, the summary of principles to apply in costs determinations provided by the First Respondent, also accepted by the Applicant, as these are accurate and relevant to this matter. Established principles that would assist the Court in the exercise of the costs discretion in the circumstances of this proceeding are: 1. the rationale for the usual rule that costs follow the event is that the successful party to proceedings should be compensated and that an award of costs is not to be punitive: Latoudis; 2. ordinarily, an order for costs will not be made against a submitting party: Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47 at [42]; Highland v Labraga (No 3) [2006] NSWSC 871 at [20]-[23]; Midson v Workers Compensation Commission (No 2) [2017] NSWSC 147 at [28]-[31]; 3. there is no prima facie rule that a submitting party will never be ordered to pay costs, contextual circumstances will be taken into consideration: Seller v Jones [2014] NSWCA 19 at [55], [59] cited with approval in Lou v IAG Ltd t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 (Lou) at 614; 4. abiding by the limits of the Hardiman principle does not immunise a government authority from an adverse costs order: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609 at 612; 5. Material considerations (House v King (1936) 55 CLR 499; [1936] HCA 40) to the exercise of discretion relevantly include: 1. whether the filing of a submitting appearance by the First Respondent and the 'role' taken by the Council were consistent with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute contained in s 56(3) of the Civil Procedure Act: Lou at [47]; 2. whether the error the subject of the proceeding was caused by a party: Lou at [44], Cutcliffe at [50], noting that it is a material consideration rather than a rule per Basten JA in Rossi v Living Choice Australia Ltd [2015] NSWCA 244 at [73]; and 3. whether the proceeding could have been resolved by consent: Lou at [44] (i.e. the conduct of the parties in the litigation).
Ultimately each case must be considered on its own facts applying these established principles. The First Respondent also submitted that, generally speaking, if a consent authority does not deal with a planning application according to law, the authority must bear whatever costs are incurred by an applicant who successfully applies to set aside the development consent, subject to the particular circumstances of the case citing the South Australian case of Sidney Harrison at [17]. The Applicant sought to distinguish that case on the facts, where the plaintiffs had successfully sought orders that a development consent was void because the council made an error of law in classifying the development and not following mandatory procedures inter alia, as being substantially different from the present proceeding. The observations of Debelle J can be considered to have wider consideration as the error in ground 1 arises from the Council's decision-making process, particularly as he expressly states any such consideration must be subject to the particular circumstances of a matter.

[11]

Council liable for costs

The Applicant was successful in relation to ground 1 which concerned squarely the Council's collective decision-making process in relation to the application of a mandatory consideration in the TLEP relevant to the subdivision application before the councillors. After some consideration I did not finally determine ground 2 concerning the terms of the Council's resolution to grant the Development Consent. The Applicant was successful on ground 1. Application of the usual rule that the successful party is entitled to costs in the absence of any disentitling conduct applies to the Applicant's benefit, subject to my consideration of the issues identified in the Council's submissions in particular.
The Council's position as articulated to the First Respondent in correspondence dated 3 August 2023 is that the Council should not be liable for costs. Its submissions did not state that explicitly. The submissions sought to limit the Council's exposure to paying costs by emphasising that the Council acted to assist the Court, as indeed it did, with reference to relevant legislation and caselaw in the context of relatively limited submissions in this regard from the Applicant. The affidavit of Mr Wilton council officer also assisted in understanding the context for the Council's decision-making in relation to ground 2 in particular. Acting in accordance with the Hardiman principle to assist the Court does not prevent an order that the Council pay costs. That is one factor that can be considered by a court in exercising its discretion but is certainly not decisive on its own, as the Council's submissions recognised.
There is no suggestion that costs should be ordered to be payable because the Council made a decision found to be legally invalid, costs are being sought because the Council was an unsuccessful party. None of the considerations relied on by the Council provide a basis for reducing its costs liability in the circumstances of the case where ground 1 dealt exclusively with the Council's failure to form the requisite state of satisfaction required by cl 4.2C(3)(c) in the TLEP that the potential for land use conflict would not be increased. The Council ought be liable for costs subject to any findings I make below in relation to the extent of costs that ought be payable by the Council.

[13]

First Respondent not liable for costs

Should the Applicant's costs be paid by one or both Respondents? The Council argues that the First Respondent should also be liable for costs largely because the First Respondent did not take up the option of surrendering the Development Consent after being notified of the Council's approach to the litigation, lodging a submitting appearance that deprived the Court of a contradictor and the First Respondent contributing to the Council's error which gave rise to the Court's finding of error by the Council in ground 1.
It is difficult to see how the decision of the First Respondent not to surrender the Development Consent is relevant in this costs determination. As the Council submitted above in [15], he was under no obligation to do so. That the option existed as it presumably does in all of these kinds of proceedings goes no further than that. Reulie CA was relied on by the Council but I fail to see how it assists in this case. In that case it so happened that part of the background facts included that an offer to surrender the relevant consent was made and then withdrawn and the respondent in the appeal (the applicant at first instance) had to proceed with the litigation. The trial judge awarded costs against all three submitting respondents in the exercise of her discretion in Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors (No 2) [2020] NSWLEC 49 at [53] (Reulie LEC) in the circumstances of that case, a decision upheld on appeal. The factual matrix in Reulie LEC was different to this matter. Reulie CA observed that no issue of principle arose in the appeal at [34].
In relation to whether the First Respondent contributed to the Council's error, as identified in Platford at [28], applied also in Reulie LEC at first instance (upheld in Reulie CA), such a matter can be relevant to the consideration of costs. In Platford and in Reulie LEC the material filed as part of the respective development applications was considered to have contributed to the error of the relevant council. The material inaccuracies arose in Reulie LEC from the failure to identify a key matter being the relevant building envelope on any plans lodged with the council. The purported errors identified above in [18]-[19] by the Council in this case in the First Respondent's development application and statement of environmental effects lodged by Gray Surveyors, and other correspondence with the Council, are not justifiably linked in my view to how the Council fell into error in failing to be satisfied of a mandatory consideration under the TLEP. As can be seen from my reasoning the councillors appeared to focus on the TLEP provision cl 4.2C(3)(a) and (b), not (c). There was no incorrect material before the Council as a result of the First Respondent's development application which can be said to have contributed to the Council's error.
The First Respondent was not obliged to defend the proceeding as a contradictor and indeed the decision to file a submitting appearance should not be discouraged by adverse costs consequences of doing so. It is difficult to see how that decision alone is relevant to my costs consideration. I do not therefore accept that the First Respondent ought be liable for any of the Applicant's costs in the circumstances.

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