Manly Warringah Rugby Leagues Club Pty Ltd v Warringah Council

CITATION : Manly Warringah Rugby Leagues Club Pty Ltd v Warringah Council [2006] NSWLEC 88

Aldi Foods Pty Limited v Holroyd City Council [2005] NSWLEC 338 (27 June 2005); Centro Properties Ltd v Warringah Council (2003) 128 LGERA 17; David Crane & Associates Pty Limited v Kogarah Council [1998] NSWLEC 121 (10 June 1998); Gales Holdings Pty Limited v Tweed Shire Council (No. 2) (2004) 133 LGERA 429; CASES CITED: Gillespies Pty Ltd v Warringah Council (2002) 124 LGERA 147; Grant v Kiama Municipal Council [2006] NSWLEC 70 ; Hunter Development and Brokerage Pty Limited v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) ; Menangle Sand & Soil Pty Limited v Wingecarribee Shire Council (2000) 108 LGERA 209; Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; Statewide Developments Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005)

(b) the Court may determine by whom, and to what extent costs are to be paid…" 6 The Land and Environment Court Rules 1996 (NSW) also deal with the issue of costs. For Class 1 proceedings which are discontinued, two rules are of relevance. 7 First, Part 11 r 5 applies to all proceedings in the Court, regardless of the class of jurisdiction to which the proceedings are assigned. Part 11 r 5 provides: "(1) If a party to any proceedings discontinues them in whole or in part, the Court may, on the application of another party, order the discontinuing party to pay the costs of any party against whom the discontinued claim was brought and who does not consent to the discontinuance. (2) The costs payable to a party under any order made under this rule are to be the costs of the party occasioned by the discontinued claim and reasonably incurred before service on the party of notice of the discontinuance. (3) Nothing in this rule limits the Court's power to order costs if proceedings are withdrawn under rule 2." 8 Secondly, Part 16 r 4 applies in those proceedings in classes 1, 2 and 3 of the Court's jurisdiction as is specified in Pt 16 r 4(1). Part 16 r 4(2) provides: "(2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers the making of a costs order is, in the circumstances of the particular case, fair and reasonable." 9 Part 16 r 4 replaced an earlier Practice Direction of the Court that stated that "no order is made in planning and building appeals, unless the circumstances are exceptional." 10 In Menangle Sand & Soil Pty Limited v Wingecarribee Shire Council (2000) 108 LGERA 209 at 213 [10], Lloyd J dealt with the relationship between Part 11 r 5(1) and the Court Practice Direction and enumerated the following general principles governing the exercise of the discretion to order costs in planning and building appeals that have been discontinued: "10. The question of costs has been considered in a number of cases where a planning or building appeal has been discontinued without the consent of the other party to the litigation. The following general principles emerge from those cases: (a) in planning and building appeals it is first necessary to look for some exceptional circumstance so as to found an order for costs. This is a direct consequence of the Practice Direction to which I have referred; (b) ordinarily, the filing of a notice of discontinuance without the consent of the other party to the litigation will satisfy the exceptional circumstance test. This is because the discontinuance usually represents an abandonment of the applicant's claim, so that costs incurred by the other party are necessarily wasted or thrown away; (c) a relevant consideration in every case is whether the discontinuance was reasonable conduct on the part of the discontinuing party in the circumstances of the case, such as to negate the ordinary costs consequences of a discontinuance of the proceedings. Such conduct may be based on some action by the other party to the litigation or some supervening event beyond the parties' control. (See: Bryant v Lismore City Council [1997] NSWLEC 91; Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245; Chris Lonergan & Associates v Byron Shire Council [1998] NSWLEC 78; Gilling v Hawkesbury City Council [1998] NSWLEC 142; David Crane & Associates Pty Limited v Kogarah Council [1998] NSWLEC 121; Kentgreen Dural Pty Ltd v Hornsby Shire Council (1999) 103 LGERA 219; Tabaquero v Campbelltown City Council [2000] NSWLEC 68)." 11 In Gales Holdings Pty Limited v Tweed Shire Council (No. 2) (2004) 133 LGERA 429, Bignold J considered the relationship between Part 11 r 5(1) and Part 16 r 4 which had by that time replaced the Court Practice Direction. Bignold J held that, notwithstanding the replacement of the Practice Direction by Part 16 r 4, the general principles enunciated by Lloyd J in Menangle Sand & Soil Pty Limited v Wingecarribee Shire Council (2000) 108 LGERA 209 at 213 [10] remained applicable. Bignold J stated at 436 [24] and [25]: "24. In my opinion, those general principles remain applicable, mutatis mutandis, now that the Court's Practice Direction has been replaced by the new Rule of Court contained in Pt 16 r 4 because it is clear that that new Rule was intended to (a) wholly replace the Practice Direction; (b) control the costs discretion conferred by s 69(2) of the Land and Environment Court Act ("Subject to the rules and subject to any other Act - (a) costs are in the discretion of the Court"); and (c) to maintain the general principle that costs are not awarded in planning appeals and the like unless it is fair and reasonable in the circumstances of a particular case, to make an order for the payment of costs. 25. Accordingly, I would hold that the relationship between the Rules of Court Pt 11 r 5 and Pt 16 r 4 is to similar effect as has been held in respect of the previous relationship between Pt 11 r 5 and the Court's Practice Direction subject to the obvious and necessary textual substitution in the formulation of the general principles enunciated in Menangle Sand and Soil of the words "fair and reasonable" appearing in Pt 16 r 4 for the words "exceptional circumstances" appearing in the Court's Practice Direction." 12 The approach embodied in Part 16 r 4(2) of the Land and Environment Court Rules is that an order for costs will not be made in Class 1 proceedings, unless the Court considers the making of a costs order is, in the circumstances of a particular case, fair and reasonable: see Statewide Developments Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005) at [4]; Aldi Foods Pty Limited v Holroyd City Council [2005] NSWLEC 338 (27 June 2005) at [5]; Hunter Development and Brokerage Pty Limited v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) at [11]; and Grant v Kiama Municipal Council [2006] NSWLEC 70 at [12] - [14]. 13 A synthesis of these decisions results in the following reformulated principles:

14 These principles ought provide guidance in the exercise of the discretion to order costs in cases to which the principles are applicable, however, they do not fetter the discretion. As Lloyd J said in David Crane & Associates Pty Limited v Kogarah Council [1998] NSWLEC 121 (10 June 1998) at [4]: "Whilst these principles generally govern the making of an order for costs in cases such as this, they are not hard and fast rules. If they were, then that would be contrary to the provisions of s 69(2) of the Land and Environment Court Act 1979, which gives the Court an unfettered discretion as to costs. They are merely principles which the Court has adopted as a guide to the exercise of the discretion which exists under that section. Moreover, the facts in each case are seldom the same. There may be special facts or circumstances which might justify departure from these principles in any particular case." Relevant events leading up to and during litigation 15 The development site, the subject of the applicant's development application, is subject to Warringah Local Environmental Plan 2000 ("the WLEP"). The site is located in Locality F2, within the Brookvale Service Centre. The development the subject of the development application is classified as Category Three Development under WLEP. Clause 12(3)(b) of WLEP provides: "(3) In addition, before granting consent for development classified as:

[2005] NSWLEC 727

(2003) 128 LGERA 17

(2004) 133 LGERA 429

(2002) 124 LGERA 147

(2000) 108 LGERA 209

(1997) 186 CLR 622

(1997) 98 LGERA 245

(1999) 103 LGERA 219

[2006] NSWLEC 70

[1998] NSWLEC 78

[2005] NSWLEC 353

[1998] NSWLEC 142

[2000] NSWLEC 68