Kenneth William Allport v Lismore City Council

Land and Environment Court (NSW)|2019-11-19|Before: Robson J

Judgment

Before the Court is a notice of motion filed 31 July 2019 by Kenneth William Allport seeking orders that two notices of motion filed by Lismore City Council ('Council') on 6 May 2019 and 13 May 2019 each be dismissed and an order that Council pay Mr Allport's costs on an indemnity basis.
The motion filed by Council on 6 May 2019 sought, inter alia, orders that Mr Allport was guilty of contempt by failing to provide Council with access to his land for the purpose of carrying out works in contravention of an order made by the Court in Kenneth William Allport v Lismore City Council [2017] NSWLEC 1606 on 30 October 2017 ('Contempt Motion'). The motion filed on 13 May 2019 sought orders that the Contempt Motion be heard on an expedited basis ('Expedition Motion').
The hearing of the motion filed by Mr Allport proceeded on 19 November 2019, with Mr V Boss, solicitor, appearing for Mr Allport, and Ms F Berglund of counsel, appearing for Council.
The essential question is whether, in the circumstances, Mr Allport is entitled to his costs in relation to the two motions filed by Council on an indemnity basis or the ordinary basis. For the reasons that follow, I find that the appropriate orders are that each of the three motions be dismissed, and I make no orders for costs.

Evidence

The evidence in the matter was extensive.
Mr Allport read the following affidavits: 1. Kenneth William Allport, sworn 16 May 2019; 2. Kenneth William Allport, sworn 27 August 2019; and 3. Vincent James Boss, sworn 30 July 2019.
Council read the following affidavits: 1. Christopher Watts, sworn 3 May 2019; 2. Christopher Watts, sworn 30 September 2019; and 3. Jonathan Marquet, sworn 27 September 2019.
Although submissions were not made by Mr Boss in this regard, it would appear that Mr Allport's reasons for withdrawing his consent were detailed in his letter of 12 April 2019 to the General Manager of Council. In that letter, Mr Allport: 1. expressed concerns that the works required pursuant to the Orders were not undertaken by Council in accordance with the timetable therein; 2. noted that he had attempted to discuss the matter with Council without "success or meaningful reply"; 3. complained that "Council is not funding the repairs" and suggested that this was inconsistent with negotiations which were undertaken at the conciliation conference prior to agreement being reached which resulted in the Orders; 4. suggested that he would never have agreed to the Orders if they had contained a condition that relied upon a "third party possibly paying for your repairs"; 5. stated that it "...seems that at the time of the agreement you were unable to meet the terms of that agreement as you did not have the funds to meet your commitment"; 6. stated that he believed Council intentionally may have "misled me and the Court" and suggested that Council's actions were in contempt of Court; 7. stated that he had attempted on three occasions to make "meaningful submissions" at Council meetings and had been "completely ignored"; and 8. summarised his concerns regarding Council's conduct, noting that Council had never been able to meet the timeframes within the Orders; Council did not have the funds to meet terms of the Orders; Council had been "less than honest" and "actively sought to exclude and ignore me"; Council intended to "leave undisturbed toxic waste in the Beardow Street road reserve embankment" adjoining his land; Council used [Mr Allport's land] to stockpile and store toxic waste; that he was at "great risk and in danger of litigation" from persons entering his property if anything arose from "Council depositing and storing toxic soils" on his land; and that he was "at great risk by Council giving other persons access " to his land.
Mr Allport's letter of 12 April 2019 was responded to by Council's solicitors on 16 April 2019, wherein Council's solicitors denied any non-compliance with the Orders; explained the background of the discovery of the contaminated waste; and drew Mr Allport's attention to the clause in the Orders stating that delays in the completion of the works in "circumstances beyond reasonable control of Council" were relevant in circumstances where Council had discovered the existence of substantial quantities of ACM and was facilitating "its safe and lawful disposal", a circumstance that was clearly one which was "beyond reasonable control of Council". Council's solicitors also indicated Council's desire to continue with the works the subject of the Orders, including the removal of the contaminated waste from the site, and noted that Council was precluded from undertaking those works while Mr Allport denied access to his land. Council requested reinstatement of access to allow the removal of the waste and the disposing thereof at waste facilities in Queensland. Council's solicitors also informed Mr Allport that Council would commence "enforcement/contempt" proceedings in relation to the breach of the Orders, and made clear that greater costs would be incurred from 1 July 2019 due to the waste disposal levies being imposed by the Queensland Government.
Mr Allport responded to Council's solicitors' letter on 16 April 2019, noting that he did not accept that the discovery of the ACM was "a circumstance beyond reasonable control". In that letter, Mr Allport indicated that he would seek legal advice and would not attend a meeting sought to be arranged by Council on 23 April 2019 in circumstances where Council was contemplating commencing proceedings.
By further letter of 23 April 2019, Council's solicitors again sought immediate access to Mr Allport's land for itself and its contractors to recommence works to remove the ACM.

Submissions

Apart from the above evidence, each of the parties provided oral and written submissions.

Mr Allport's position

Mr Allport's primary position is that Council conducted itself inappropriately over a long period of time by: failing to engage with him in relation to the conduct of activities on his land and Council land; inappropriately depositing (possibly contaminated) soil on Mr Allport's land; and inappropriately filing the Contempt Motion and thereafter inappropriately filing the Expedition Motion in circumstances where, at or about the time that Council filed those motions, and at least on 6 May 2019, Mr Allport provided his permission for access to his land.
Mr Boss further submitted that Council itself was in breach of the Orders as it had not commenced the required works within the stipulated three month timeframe, nor had it finished the works within the required six month timeframe. Further, although Council was earlier (in January 2018) granted access across Mr Allport's land, Council and its contractors "took exclusive possession" of the land and placed certain facilities on the land, including a shed, toilet and fencing in the absence of authority (including a required "EPA licence") to do so. By the deposition of (possibly contaminated) soil on the land, Mr Allport submits that Council inappropriately created unlawful stockpiles on his land.
In response to Council's written submissions, Mr Boss denied that ex-Tropical Cyclone Debbie impacted upon Mr Allport's land, and submitted that this suggestion was a "recent proposition". Further, Mr Boss submitted that the ACM on both Council land and Mr Allport's land "could only have been put there by [Council] who should have known of its existence". In the circumstances, Mr Boss submitted that Council had "changed its position on causation", now suggesting ex-Tropical Cyclone Debbie was responsible, as opposed to an earlier suggestion that Mr Allport's land was at risk due to slope instability. Mr Boss submitted that Council took "exclusive possession" of Mr Allport's land without authority, created stockpiles "without permission or licence", and ignored Mr Allport's correspondence outlining his concerns.
In these circumstances, and particularly in light of the fact that Council became aware of the contamination in November 2018 and resolved not to remove the material until 16 April 2019, Mr Boss submitted that Council failed to adopt a fair and reasonable approach in its dealings with Mr Allport. Further, Mr Boss submitted that Council filed the motions prematurely and "after [Mr Allport] had given access on and across his land". Given that Council did not seek to withdraw the proceedings until August 2019, Mr Allport submits that he is entitled to his costs incurred on an indemnity basis. Council's conduct in filing the Contempt Motion despite Mr Allport's correspondence and personal representations was submitted by Mr Boss to be indicative of Mr Allport being treated in a "very poor and unprofessional manner" by Council.

Council's position

Ms Berglund submitted that the events are properly recorded in the affidavit of Christopher Watts affirmed 3 May 2019 (summarised at [5] above), and noted that this evidence was unchallenged.
On that evidence, Ms Berglund submitted that during the course of April and May 2019, Council did not have access to Mr Allport's land as required by order (5) of the Orders, and when consent was ultimately given on 6 May 2019, it was on such restrictive terms that did not enable Council to carry out the work that was required. Further, it was only in early 2019 that Council became aware that the extraction and deposition of the waste material needed to be undertaken prior to 1 July 2019 to avoid paying the new Queensland waste levy.
In those circumstances, Council submits that its conduct in filing the Contempt Motion (and statement of charge) and the Expedition Motion, was appropriate.
Ms Berglund further submitted that it was not until 20 May 2019 that the parties effected resolution of access to Mr Allport's land by entering into a lease, and consequently, it was an appropriate course for Council not to press the substantive orders sought in either the Contempt Motion or the Expedition Motion.
In light of the above, Council submits that Mr Allport has not made out a case for his costs associated with either of the motions on the ordinary basis, let alone on an indemnity basis.

Relevant principles

Given that the motions filed by Council were brought within Class 2 of the Court's jurisdiction, the relevant costs regime is found in r 3.7 of the Land and Environment Court Rules 2007 (NSW) ('LEC Rules').
Rule 3.7 of the LEC Rules relevantly provides: 3.7 Costs in certain proceedings (cf Land and Environment Court Rules 1996, Part 16, rule 4) (1) This rule applies to the following proceedings (except for appeals under section 56A of the Act): … (b) all proceedings in Class 2 of the Court's jurisdiction, … (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: … (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, … (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
In relation to what is "fair and reasonable in the circumstances" within the meaning of r 3.7(2) of the LEC Rules, Biscoe J stated in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 at [9]: In the context of the presumptive rule that there will be no order as to costs in planning appeals, the power to make a costs order is in the broadest of terms, that is, what is "fair and reasonable in the circumstances". All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the court, they are of sufficient weight to overcome the presumptive rule. Indicative guidelines for the exercise of the discretion are useful in promoting consistent decisions, but are not entitled to presumptive, let alone determinative, weight…
In Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 at [30], Sheahan J, accepting the applicant's summary of principles, noted: a. Rule 3.7(2) creates a basic rule where there is a presumption against the making of an order for costs [Port Stephens Council v Sansom ("Sansom") [2007] NSWCA 299 ; (2007) 156 LGERA 125 at [48]]. b. The effect of the basic rule in r 3.7(2) is that, in the ordinary course, costs will lie where they fall [Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34 at [5] per Biscoe J]. c. The question then is whether, despite the basic rule, it is "fair and reasonable" that a party should be reimbursed for the costs it incurred [Sansom at [50]]. d. The formulation - "fair and reasonable" - calls for a judgment to be made, rather than as a discretion to be exercised, but in any event the evaluative process can be accurately described as conferring a wide discretion [Sansom at [51]]. e. Rule 3.7(3) identifies, without limitation, some circumstances in which the Court might consider the making of a costs order to be fair and reasonable [Pet Carriers International Pty Ltd v Botany Bay [City] Council (No 2) [2013] NSWLEC 150 at [4] per Preston CJ]. f. The circumstances identified in r 3.7(3) may rebut the presumption in r3.7(2) and may inform the Court's discretion but are neither prescriptive nor exhaustive [Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196 ; 160 LGERA 164 at [73] per Biscoe J; Hillsong Church Limited v Council of the City of Sydney (No 2) [2012] NSWLEC 118 at [55] per Pepper J].
Apart from the above, given that the proceedings are effectively civil contempt proceedings, Council submits that the Court has a general power to award costs under s 98 of the Civil Procedure Act 2005 (NSW) ('Civil Procedure Act').
Section 98 of the Civil Procedure Act relevantly provides: 98 Courts powers as to costs (cf Act No 52 1970, section 76; SCR Part 52A, rules 5, 6, 7 and 8; Act No 9 1973, section 148B; Act No 11 1970, section 34) (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. ...
Although Mr Boss contended that the Court had power to award costs pursuant to r 42.19 of the UCPR, I do not accept that contention.
Rule 42.19 of the UCPR provides: 42.19 Proceedings discontinued (cf SCR Part 52A, rule 21; DCR Part 39A, rule 24; LCR Part 31A, rule 19) (1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1. (2) Unless the court orders otherwise or the notice referred to in rule 12.1(2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued. …
Pursuant to Sch 1 of the UCPR, r 42.19 does not apply to proceedings in Class 2 of the Court's jurisdiction. Further, in light of Sch 2 of the UCPR, the LEC Rules, including r 3.7, prevail over the UCPR. Accordingly, even if the applicable power is found in s 98 of the Civil Procedure Act, that power is not fettered by r 42.19 of the UCPR. That is, there is no starting presumption that a discontinuing "plaintiff" should pay the "defendant's" costs.

Whether costs should be ordered in Mr Allport's favour

As noted above, the evidence before the Court is extensive. As I indicated during the hearing, while relevant to the background of the matter, much of the material contained in the affidavits of Mr Allport, although not the subject of objection by Council, does not directly relate to my determination of the present motion.
As a preliminary point, it is clear that Mr Allport has been properly concerned for some period of time with Council's conduct, including the undertaking of certain works on and adjacent to his land. Mr Allport also has a concern, which I consider bona fide, in relation to the difficulties he has encountered in previous dealings with Council. In particular, I accept that Mr Allport has genuine concerns regarding the failure to be fully informed in relation to Council's decision-making regarding the works on and adjacent to his land.
Despite this, as noted above, I do not consider that Mr Allport's concerns, which I accept are genuinely held, assist in the determination of this matter. There is no doubt that the parties had significantly different views in relation to the factual circumstances which led to the issuing of the Council Order on 9 June 2017. This is abundantly clear from the significant differences in Mr Allport's SOFAC and Council's reply thereto. In any event, I consider that the resolution that was effected in the Orders made pursuant to s 34 of the LEC Act was appropriate and sensibly resolved what was obviously a significant problem with the landscape at that time.
Notwithstanding the fact that ACM was subsequently discovered when Council's agents were properly attending to preliminary works to effect the agreement provided for in the Orders, I do not accept the submission made on behalf of Mr Allport that Council was either responsible for the conduct which led to the ACM being on the site in the first place, nor do I accept that there is any conduct, material or evidence indicating that Council should have been aware that there was ACM on or about the site.
In those circumstances, when Council became aware of the condition of the site, it had little, if any, choice but to undertake further investigation and retain experts to prepare a remedial action plan (which it did in October 2018).
Further, I consider that the extent of the ACM on the site meant that the anticipated increase in the costs of the work to be undertaken (which I accept was in accordance with the Orders) was a matter that was not otherwise able to be anticipated and, as noted above, was not the result of Council's conduct. It was also beyond Council's control that the Queensland Government would significantly increase the rates payable for the transfer and deposition of waste to licensed premises therein.
I find that Council's concern that it could not access Mr Allport's land to undertake the works required due to Mr Allport's withdrawal of consent was properly a matter of importance to Council when it filed the Contempt Motion in an attempt to facilitate performance of the Orders. It follows that the urgency with which it sought to have the Contempt Motion proceed resulted in the Expedition Motion being filed. Council's conduct in this regard was both reasonable and understandable.
In circumstances where ACM had been found on the land and Council had concerns in relation to the increased cost of the works required to dispose of the material, despite the detailed evidence marshalled on behalf of Mr Allport and his 'reasons' for withdrawing his consent for Council to access his land as detailed in his letter of 12 April 2019 (at [9] above), I do not consider that these matters are persuasive and I accept that Council's response in its letter of 16 April 2019 (at [10] above) was a considered and reasonable response to Mr Allport's concerns. I consider Mr Allport's adopted position to be particularly curious in circumstances where, as at November 2018, he became aware of the remediation action plan dated October 2018 which recorded significant quantities of ACM on the land.
In light of the above, and noting that Council provided Mr Allport with a construction schedule on 1 May 2019, I consider that, in all the circumstances, Mr Allport's letter of 6 May 2019 to Council purportedly granting access to his land until 6 July 2019 was subject to such restrictions (including restrictions as to the construction of "Haul roads", "Env Controls", placement of fencing, "systems", storage of equipment, "sieving of waste materials" and storage of contaminated materials) which considered in toto, did not amount to effective permission to access the land as required by the Orders.
I do not consider that Council was in breach of its obligations under the Orders as submitted by Mr Boss. I accept that, to the extent that it may be relevant, the Orders specifically provided that the time stipulation for Council to commence and complete the works was subject to "circumstances beyond the reasonable control of Council". It must be the case that the discovery of the ACM was a matter beyond the reasonable control of Council.
Further, I consider Council's communication to Mr Allport that as a result of the lease allowing Council to access his land, Council no longer sought the relief in the two motions, to be fair and reasonable in the circumstances.
For completeness, adopting the principles summarised above, I do not consider that Council acted unreasonably in filing the motions, nor do I consider that Council conducted itself in an unreasonable manner. It would not be fair and reasonable to make any award for costs in favour of Mr Allport.
Given my findings above, it follows that there is no basis for awarding indemnity costs. This is particularly so in circumstances where an order for indemnity costs requires "some relevant delinquency" or "some special or unusual feature in the case": Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44] and Harrison v Schipp [2001] NSWCA 13 at [133].

Orders

The orders of the Court are: 1. The Notice of Motion filed by Lismore City Council on 6 May 2019 is dismissed. 2. The Notice of Motion filed by Lismore City Council on 13 May 2019 is dismissed. 3. The Notice of Motion filed by Kenneth William Allport on 31 July 2019 is dismissed. 4. No order for costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2019

Uniform Civil Procedure Rules 2005(NSW)rr 40.8, 42.19, Schs

(2008) 158 LGERA 224

(2007) 156 LGERA 125

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