Consideration
8Section 98 of the Civil Procedure Act 2005 applies to costs in these Class 4 proceedings. Under Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005 costs generally follow the event. In this case the Council was successful in obtaining a finding that a breach of the EPA Act occurred when Mr Thrush undertook the work he did in July 2009 in the SEPP 14 wetland area without development consent. I did not make a declaration in relation to the carrying out of illegal work or the consequential orders for relief sought because of the particularly difficult position Mr Thrush finds himself in given his lack of funds, that his sole access to his land is a right of carriage way across Mr Gullotto's property, and he has had difficulty in obtaining owner's consent to a DA in relation to work on that land from Mr Gullotto. Mr Thrush's evidence at the substantive hearing was that a DA was sent to Mr Gullotto in about April 2008 but no owner's consent was provided. In these circumstances the Council did not process the application. I took into account all these matters in the exercise of my discretion (in particular Thrush No 1 at [52]). I did not make orders for relief because of these subjective matters, which are unique to this matter, and my decision should not detract from the Council's important role in enforcing planning laws. It was successful in carrying out that role.
9As demonstrated by the Council, Mr Thrush was aware that work in the SEPP 14 wetland area would require development consent, as can be seen in the 2008 correspondence referred to, but did not wait to obtain it before carrying out the work he did in July 2009.
10Reinforcement of the enforcement role properly carried out by the Council justifies an award of costs in its favour in relation to Mr Thrush. I generally agree with the Council's submissions that its costs ought be paid by Mr Thrush.
11Mr Thrush submits that he is of very limited means and cannot pay any costs order. See also Thrush No 1 at [17] and [54]. Numerous cases attest that that is not a relevant consideration, for example Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178; (2010) 176 LGERA 97 at [42] and Michales v Dimoski (No 2) [2007] NSWLEC 591 at [15]. I can specify a period during which enforcement of the order is postponed but consider I should otherwise make the order as part of the necessary legal framework supporting the enforcement of breaches of the EPA Act.
12Mr Thrush made a faint submission that his costs ought be paid by the Council because it initially misled him about whether development consent was required for work in the SEPP 14 wetland area. That submission may have related to discussions with the Council before January 2008 when the correspondence referred to by Ms Alberry and Mr Thrush commences. I do not have evidence of those discussions in admissible form and cannot therefore consider this submission. The correspondence from early 2008 makes clear that development consent was needed in the Council's opinion for the work intended to be done in the SEPP 14 wetland area. Mr Thrush was notified of this. There is no misleading advice provided by the Council to Mr Gullotto concerning Mr Thrush having existing use rights in the letter sent to Mr Gullotto dated 25 June 2008 attached to Mr Thrush's submissions. There is no basis demonstrated for a costs order in favour of Mr Thrush.
13Mr Gullotto seeks an order that his costs be paid primarily by the Council as he should never have been a party to these proceedings. The short legal answer to that is the submission of the Council that as the owner of the land where illegal work was carried out he was a necessary party to the proceedings. That submission is correct given the legal position of Mr Gullotto as owner of the land. Mr Gullotto also submitted that he was an innocent party and in one sense that is true given that he did not receive notice from Mr Thrush of the intention to do work in July 2009 (and even if he had what he could or should have done about it is not self-evident). He does have an important role in the overall circumstances of the matter however given that any development consent to do work by Mr Thrush on the right of carriage way including in the SEPP 14 wetland area requires owner's consent from Mr Gullotto.
14The factual circumstances surrounding the seeking of owner's consent from Mr Gullotto for the 2008 DA are now disputed as noted above in par 7. Mr Gullotto says today that he never received this DA and so could not have then provided his consent. The first DA he received according to his statements from the bar table is the DA lodged in around November 2009 after the illegal work was done, being the second DA attached to the affidavit of Ms Alberry and also attached to Mr Gullotto's affidavit dated 4 April 2010. Accepting Mr Gullotto's statements concerning non-receipt of the 2008 DA for present purposes, Mr Gullotto was asked to provide owner's consent to the 2009 DA, lodged by Mr Thrush after the illegal work, and a further amended DA in 2010 (identified in the chronology at [5] of Thrush No 1 ) but did not.
15Mr Gullotto continues to maintain that the giving of his consent is conditional on his being satisfied whether rules and regulations are complied with. That continues to be an unsatisfactory position in my view for the reasons stated in my previous judgment at [51] given that Mr Thrush has a legally enforceable right of carriage way over Mr Gullotto's property. Had Mr Gullotto provided owner's consent to the 2009 DA and a further DA lodged in 2010, an important legal hurdle to the Council processing one of these would have been removed. That is a relevant and material consideration in weighing up Mr Gullotto's claim for costs as against the Council and Mr Thrush. Exercising the broad discretion I have in determining costs I consider in all the circumstances of this case I should not make an order for costs in Mr Gullotto's favour.