May v Northern Beaches Council and Anor

Land and Environment Court (NSW)|2023-05-23|Before: Robson J

JUDGMENT

In May v Northern Beaches Council (No 2) [2023] NSWLEC 7 ('May (No 2)') I determined two notices of motion filed 4 and 7 March 2022 by Northern Beaches Council ('Council') and Paul Wilhelm (collectively, 'respondents') respectively, each seeking orders that proceedings commenced by Stephen May be dismissed, either in whole or in part pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR').
I made orders striking out Mr May's amended summons filed 13 April 2022 and granted Mr May leave to file a further amended summons limited to claims that certain works had been unlawfully undertaken on land owned by Mr Wilhelm at Church Point ('site'). I reserved the question of costs.

Background

As detailed in May (No 2), the amended summons contained various claims for judicial review and civil enforcement in relation to a development consent issued on 29 September 2017 ('Consent'); two approvals of subsequent modification applications granted by Council on 4 July 2018 ('First Modification') and 27 September 2021 ('Second Modification'); and a construction certificate issued 1 August 2018 by a private certifier ('Construction Certificate'), concerning construction of a new dwelling house at the site.
As considered in detail in May (No 2), Mr May sought extensive declaratory relief and consequential injunctive relief to restrain the carrying on of what he alleged constituted "illegal works".
I found that the judicial review challenges raised by Mr May did not disclose a reasonable cause of action nor had reasonable prospects of success, and accordingly dismissed the amended summons. However, as noted earlier, I granted Mr May limited leave to replead his remaining civil enforcement claims.
On 10 March 2023, Mr May availed himself of the leave granted in May (No 2) and filed a further amended summons raising civil enforcement claims with respect to "all work not in accordance with the Consent dated 29th of September 2017 and the Construction certificate dated the 1st of August 2018". On 26 May 2023, Mr May filed a notice seeking leave to appeal May (No 2) in the NSW Court of Appeal. Accordingly, on 22 March 2023, I made orders staying the proceedings before this Court until 14 days after the determination of the Court of Appeal proceedings, or the discontinuation thereof. I also made orders setting down a timetable for the determination of the respondents' claims for costs.
Each of the respondents and Mr May filed written submissions, and the applications for costs proceeded on the papers.

Power of the Court to grant costs

The applicable principles on interlocutory costs applications are well established. The Court has a wide discretion under s 98 of the Civil Procedure Act 2005 (NSW) ('Civil Procedure Act') to make orders as to costs of a disputed notice of motion, including in relation to the basis upon which those costs are to be assessed. Section 98(1) relevantly provides: (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.
Notwithstanding the Court's broad discretion, as a general rule, costs follow the event and are assessed on the ordinary basis unless the Court orders otherwise: rr 42.1, 42.2 of the UCPR.
The application of this general rule is however subject to r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) ('LEC Rules') which applies to proceedings in Class 4 of the Court's jurisdiction by operation of r 4.1, and relevantly states that: (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.
By combined operation of s 11 of the Civil Procedure Act, r 1.7 and Sch 2 of the UCPR, the LEC Rules are to prevail over the general rule if it appears that it would be more appropriate for some other order to be made as to the whole or any part of the costs: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695 at [90] (Basten JA).
To avail itself of r 4.2(1) of the LEC Rules and displace the presumptive rule that costs follow the event, a party must however show that there is something out of the ordinary in the particular case that justifies such departure: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 at [18] (Young JA, McColl JA agreeing).
In applying the above principles, the Court must seek to compensate the person in whose favour the costs order is made, rather than punish the person against whom it is made: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] (McHugh J) ('Oshlack'); Ohn v Walton (1995) 36 NSWLR 77 at 79.

Council's position

Council contends that in circumstances where the amended summons was dismissed and the limited scope of relief granted to Mr May did not relate to any actions taken by it, it has been entirely successful on its notice of motion. Costs should therefore follow the event, applying the usual approach to costs orders in Class 4 proceedings provided for by r 42.1 of the UCPR.
Further, and notwithstanding the inherent public interest in ensuring, through judicial review proceedings, that a consent authority properly assesses and determines applications before it, Council submits that the proceedings cannot be characterised as having been brought in the public interest. Rather, the litigation is merely a continuation and escalation of a dispute between neighbours and focuses solely on protecting Mr May's personal interest as the immediate neighbour of the property on which the alleged "illegal works" have been undertaken.
Mindful of the reserve expected of a consent authority in judicial review proceedings, Council contends that in circumstances where Mr May raised allegations that only Council could address, its active participation in the strike out proceedings was legitimate and should not result in any adverse cost consequences.
Council further submits that it would be fair and reasonable for Mr May to bear more than one set of costs in the circumstances. While both respondents sought orders summarily dismissing the proceedings against them, Council emphasises that they had different cases to answer. In addition, Council submits that its responsibilities as a consent authority justified separate representation to prevent any apprehension of bias eventuating if it were required to redetermine the applications the subject of judicial review. Finally, Council identifies that there were potential conflicts between its interests and those of Mr Wilhelm which favoured separate representation.

Mr Wilhelm's position

Mr Wilhelm submits that in circumstances where the amended summons was struck out with leave to replead only being granted on a limited basis, he was successful on his notice of motion. As such, and because the proceedings were not brought in the public interest, the ordinary rule that costs follow the event should apply. In addition, he seeks that costs be assessed on an indemnity basis.
Whilst Mr May's decision to commence proceedings that were obviously doomed to fail might have been excused on account of his lack of legal expertise and representation, no such allowance should be made after he was informed of the defects in the formulation of his claim in correspondence from Mr Wilhelm's solicitors, and nevertheless persevered. In particular, Mr Wilhelm emphasises that the proceedings lacked merit in circumstances where three of the judicial review claims were brought out of time with Mr May refusing to apply for an extension of time, and where the grounds for review were in any event misconceived. In these circumstances, Mr May's conduct demonstrated a form of "delinquency" that justifies the making of an order for costs on an indemnity basis, referencing Oshlack at [44] (Gaudron and Gummow JJ).
If the Court was not minded to assess costs on an indemnity basis, Mr Wilhelm contends that his success on his motion warrants, at the very least, an award of costs on the ordinary basis.

Mr May's position

Mr May opposes the costs orders sought, and requests that determination of costs be stayed pending the hearing and determination of the NSW Court of Appeal proceedings commenced on 26 May 2023.
In any event, Mr May submits that the Court should exercise its discretion under r 4.2(1) of the LEC Rules to decline making any costs order against him as the proceedings were brought in the public interest. He identifies a number of factors in support of that submission, that can be distilled as follows: 1. The proceedings were brought in the public interest insofar as Mr May sought to unveil "fraud perpetrated by the owner" in relation to which Council has refused to take any action; 2. It is in the public interest to ensure that Council, as the gatekeeper of the assessment and approval of all development applications, enforces compliance of works with the applicable development approvals; and 3. It is in the public interest to prevent work being undertaken otherwise than in accordance with a development consent or a construction certificate and to address any correlated breach of the Environmental Planning and Assessment Act 1979 (NSW).
Mr May rejects the proposition that the proceedings are merely concerned with his private interest as a resident of the property adjoining the land upon which the alleged illegal works have been undertaken. He submits that he is not precluded, as a neighbour, from bringing these proceedings and that he is only concerned with ensuring compliance of the construction works with the applicable development approval and the relevant legislation. In support of the proposition that he has no personal interest in the subject matter of the proceedings, he submits that the owner of the adjoining property, on which he lives, had in fact refused to take part in the proceedings. Finally, he emphasises that he derived no financial benefit from commencing these proceedings, which suggests that he did not do so for his own private interest.
In addition, Mr May submits that Council has acted unreasonably in that it failed to accept an offer to compromise the proceedings on terms that would have required him to pay $1.00 and Council to engage a third-party engineer to assess the impacts of a potential approval of an "8mtr cut in high category land slip."
Mr May also submits that Council unnecessarily sought separate representation from Mr Wilhelm despite raising an identical claim and bearing similar interests in the proceedings.

Consideration

As a preliminary matter, given Mr May's submission, it is necessary to record the circumstances which grounded my decision to determine these interlocutory costs applications irrespective of the appeal pending against May (No 2) in the NSW Court of Appeal.
As provided by r 42.7 of the UCPR, interlocutory costs are usually determined at the conclusion of the proceedings. Be that as it may, availing itself of the broad discretion conferred by s 98 of the Civil Procedure Act, the Court may order that costs be determined forthwith in circumstances where final disposition of the proceedings is likely to be some time away: Fiduciary v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 at [13]. Relevantly, Mr May's approach in filing both an appeal against May (No 2) in the NSW Court of Appeal, and a further amended summons before this Court, will necessarily delay the final determination of these proceedings which were effectively commenced some significant time ago. In these circumstances, I consider that fairness to the respondents justifies that costs be determined at this stage.
Mindful of Mr May's status as a litigant in person, I recorded my advice, at a directions hearing conducted on 22 March 2023, that assessment of the costs of these proceedings would have no bearing on Mr May's ability to pursue an appeal in the NSW Court of Appeal in relation to May (No 2).

Can the proceedings be characterised as "public interest" litigation with the effect of engaging r 4.2(1) of the LEC Rules?

Mr May seeks to engage the operation of r 4.2(1) of the LEC Rules to avoid any costs order being made against him. In determining whether to depart from the general rule, the tripartite test outlined by Preston CJ of LEC in Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 ('Caroona Coal') at [13]-[19], although developed in relation to a different costs regime, is generally applied by the Court. It requires consideration first, of whether the relevant litigation can be characterised as a "public interest" litigation; second, if it is, whether there is "something more" than such a characterisation to warrant departure from the general rule; and third, whether there are any relevant countervailing circumstances: People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157 at [5]; Caroona Coal at [38] and [60]-[61].
Conscious of the multi-faceted nature of the concept of "public interest", and that I am not dealing with costs of a final hearing, I adopt the summary considered by Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 at [15], and subsequently relied upon by Preston CJ of LEC in Caroona Coal, of the factors that may guide the Court in assessing whether proceedings can be properly characterised as "public interest" litigation, including: 1. The public interest served by the litigation; 2. Whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area; 3. Whether the applicant sought to enforce public law obligations; 4. Whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and 5. Whether the applicant has no pecuniary interest in the outcome of the proceedings.
Considering firstly whether the proceedings can be characterised as being in the public interest, at issue in Mr May's amended application was whether Council complied with applicable planning controls in granting the Consent, and two subsequent modification applications concerning the construction works on the site adjacent to the land on which he resides. Mr May also raised claims in relation to alleged "illegal works" undertaken by Mr Wilhelm in breach of the Consent. Relying principally on Council's role as a consent authority Mr May, in essence, claims that the proceedings he brought were necessarily in the public interest as it incidentally concerned the enforcement of planning controls.
I accept that, viewed broadly, the assessment (and determination) of development applications by a local government authority, and consequential enforcement of approvals, is intrinsically a matter of public interest insofar as it requires ensuring compliance of any proposed development with environmental planning instruments that have been made to promote objectives considered to be in the public interest. Be that as it may, the public interest arches over the majority of work usually undertaken by councils, and I do not consider that such a remote connection to be in, and of itself, sufficient to bring these proceedings in the public interest end of the public/private spectrum. Rather, to trigger the application of r 4.2(1) of the LEC Rules, the extent to which proceedings benefit the public interest must be established precisely: Caroona Coal at [49].
In this regard, while I accept that Mr May displayed a genuine concern about the lawfulness of Council's decision to approve the development on Mr Wilhelm's land (and subsequently modified) and resulting suggested impacts on neighbouring properties, I do not consider these subjective concerns to render this litigation of public interest in nature. This is because, first, Mr May's objection to the development application originally related to concerns about impact on privacy and solar access on neighbouring land on which he resided. This background suggests that the proceedings were primarily motivated by Mr May's personal interest rather than by a desire to uphold the public interest or the rule of law. Further, the issues raised in the proceedings concerned an alleged failure on the part of Council to consider relevant matters in this one particular instance, but had no wider application to Council's assessment of development applications generally.
In addition, and taken at its highest, the public interest served by the litigation was confined to a relatively small number of people, including Mr May and other occupants of neighbouring properties. In considering this question, I accept Mr May's submission that his status as a neighbour did not disentitle him of his right to commence judicial review proceedings, nor was it determinative of the question of whether the proceedings should be characterised as public interest litigation. Nonetheless, in circumstances where, in Mr May's own words, "the owner of the [neighbouring] property was not a party and wanted no part in the proceedings", it is difficult to see how the proceedings did more than represent his own personal interest in having the development halted. No evidence of a wider public interest in the subject matters of the proceedings, be it from neighbours or from the local community, was provided, and it is not apparent how the outcome of the case would have an impact on anyone beyond the parties involved in this matter.
Finally, while I accept that Mr May did not necessarily have a pecuniary interest in the outcome of the proceedings, I do not consider that this outweighs the other factors pointing against characterising the proceedings as having been brought in the public interest.
Mr May has insisted in his submissions that he was acting in the public interest, and I have remained mindful of the fact that it may be challenging for a litigant in person to distinguish between submissions and the evidence supporting those submissions. However, and materially for the present purposes, there is no compelling evidence supporting his submissions. Thus, I do not consider the nature of the proceedings (which I mindful have not been finalised) to be concerned with public rather than private rights and to warrant a departure from the usual order for costs.
Nevertheless, even if I had characterised May (No 2) as public interest litigation, the nature of the proceedings would further need to be considered as part of the second step identified in Caroona Coal. In this regard, I do not consider that there is "something more" where the matters the subject of Mr May's claim concerned, inter alia, the height of the proposed dwelling house, the extent of the excavation contemplated and the issue of privacy arising from the modification of cladding on the dwelling house. These matters concerned the application of Council's planning instruments to an individual development application (and subsequent modification applications) lodged by Mr Wilhelm. In challenging these decisions, Mr May did not raise any novel questions regarding the application of the relevant planning instruments.
In challenging Council's assessment of the development application, Mr May incidentally raised matters of environmental significance such as the necessity of an acid sulphate soils management plan. However, these factors only constituted one of many grounds upon which Mr May relied to challenge Council's decisions, and I do not consider that he brought this case with a broader objective of protecting the environment.
Finally, as determined above, the impact of these proceedings is narrowly limited to the parties' interests, and potentially to those of neighbouring residents. It is thus difficult to see how these proceedings could affect a significant portion of the population.
As such, even if I had held that this was public interest litigation, the nature of the litigation would not have warranted a departure from the usual approach. On this basis, I do not find it necessary to consider whether there are any countervailing considerations and find that there is no basis for not applying the usual approach to costs in relation to the respondents' motions.

Should indemnity costs orders be made?

Mr Wilhelm seeks an order that his costs be paid on an indemnity basis as a consequence of Mr May's persistence in bringing "hopeless" proceedings despite having been made aware of that fact.
The Court is empowered to awards costs on an indemnity basis under r 42.5 of the UCPR and s 69(2)(c) of the Land and Environment Court Act 1979 (NSW). However, a departure from the general rule that costs are to be assessed on the ordinary basis requires satisfaction that the way in which the proceedings were conducted makes it just as between the parties that the successful party recovers costs on an indemnity basis: Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 ('Quach (No 2)') at [10].
A successful strike out motion is not in, and of itself, sufficient grounds for the award of indemnity costs: Westfield Management Limited v Direct Factory Outlets Homebush Pty Limited (No 4) [2005] NSWLEC 168 at [35]. Rather, an order for indemnity costs will generally be justified if the circumstance of a case involves some relevant delinquency on the part of the unsuccessful party: Oshlack at [44] (Gaudron and Gummow JJ).
Although courts are generally reluctant to make orders for indemnity costs against litigants in person, it may be justified where the proceedings were "obviously doomed to fail" and the litigant maintained the proceedings after having been informed of that fact: Quach (No 2) at [10].
Relevantly, prior to the hearing of the motions, Mr May was informed by way of letter dated 11 February 2022 from Mr Wilhelm's legal representative ('Clyde & Co's letter') of the deficiencies of his case and of his limited chances of successfully obtaining the relief he sought in the underlying proceedings for judicial review. Despite this letter relating to an earlier iteration of the amended summons, he persisted in bringing judicial review proceedings that were out of time in relation to the Consent, the First Modification and the Second Modification, and the Construction Certificate, and significantly, he refused to seek leave to extend time to commence the proceedings.
In exercising my discretion, I am conscious that Mr May was (and remains) a litigant in person, and that the Court must on this basis make proper allowances for the difficulties resulting from a lack of legal expertise: Bhagat v Royal & Sun Alliance Life Assurance Australia Limited [2000] NSWSC 159 at [13]; Quach (No 2) at [9]. As such, I have taken into account Mr May's lack of legal knowledge and his relative lack of familiarity with the Court's practices.
In circumstances where Mr May believed, and argued before me, that the time limitation in r 59.10 of the UCPR did not apply because Council failed to notify Ivana May of her right as an objector to appeal the determination of Mr Wilhelm's development application and thereby breached cl 100 of the Environmental Planning and Assessment Regulation 2000 (NSW), I do not consider that he necessarily made a deliberate decision to continue a claim he knew was without merit. I further note that the Court has, in any event, discretion to extend of its own motion the time for commencing proceedings under r 59.10(2) of the UCPR such that I would not consider a failure to apply for leave to extend a limitation period to result in proceedings being manifestly hopeless.
Similarly, while Mr May maintained judicial review proceedings against the Second Modification after having been informed that the claim did not disclose any jurisdictional error, and despite my findings in May (No 2) that the claim was without merit, I consider that an indemnity costs order can only be made upon satisfaction that Mr May had in fact appreciated the hopelessness of his position. In circumstances where, following Clyde & Co's letter, Mr May filed an amended summons on 13 April 2022 which reiterated his various allegations of various jurisdictional errors, and where he made oral submissions during the hearing of the notices of motion emphasising what he claimed were jurisdictional errors, I am inclined to find that he misguidedly considered his claims to have merit. His lack of legal representation played a material role in his failure to proceed properly, for example by seeking leave to extend time to bring judicial review proceedings, or by withdrawing his claims, and it seems to me that he otherwise presented his case as responsibly as he could be expected to as a litigant in person.
While it may be that Mr May's somewhat broad and unfocused approach in these proceedings increased the respondents' costs, I remain cognisant of the necessity for this Court to balance any undue burden on the respondents with a litigant in person's rights to bring a claim, as is evident in the observations made by Mason CJ, Brennan, Deane, Dawson and McHugh JJ in Cachia v Hanes (1994) 179 CLR 403 at 415; [1994] HCA 14 to the effect that: "It would be mere pretence to regard the work done by most litigants in person in the preparation and conduct of their cases as the equivalent of work done by qualified legal representatives. All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged. The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable."
Finally, the respondents were not entirely successful on their motions insofar as Mr May was granted leave to file a further amended summons in relation to his civil enforcement claims. It is therefore difficult to say that his case was entirely hopeless. Thus, on balance, I do not consider that his conduct was such as to arouse the discretion to award indemnity costs.

Should Mr May pay more than one set of costs?

In light of Council and Mr Wilhelm's separate applications for costs, it is necessary to consider whether it would be reasonable for Mr May, as the somewhat unsuccessful party to the motions, to bear the entirety of the respondents' costs: Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 at [18].
Generally, in relation to completed proceedings, the Court will not allow more than one set of costs to be paid to respondents between whom no conflict of interest could arise in the presentation of their case. The nature of the type of conflict of interest which may warrant separate legal representation was clarified in Statham v Shephard (No 2) (1974) 23 FLR 244 ('Statham (No 2)') where Woodward J stated at 246-247: "In the first place, if a conflict of interest appears possible but unlikely, the defendants should make any necessary inquiries from the plaintiff as to the way in which his case is to be put if this would resolve the possibility of conflict between defendants. … Secondly, there could be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other might be such that they would be acting reasonably in remaining at arm's length during the general course of litigation. Thirdly, even if defendants are acting reasonably in maintaining separate representation for some time or for some purposes, they may still be deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter or at any particular time."
Accordingly, where the Court deals with two separate notices of motion, it is appropriate to consider whether the respondents have demonstrated a sufficient reason for Mr May to be burdened with more than one set of costs.
Relying on the first proviso in Statham (No 2), Council submits that, although no actual conflict of interest arose between itself and Mr Wilhelm, the different allegations raised by Mr May against each of them had the potential to create such conflict. Unfortunately, Council has not further elicited which allegations in the amended summons (as opposed to the earlier summons) it relies upon, and the extent to which these could foster a conflict between its interests and those of Mr Wilhelm.
Rather, it appears to me that Council and Mr Wilhelm's interests in the motions overlapped in the sense that they both sought orders dismissing Mr May's (subsequent) amended summons on the basis that it disclosed no reasonable cause of action. Relevantly, Council expressly adopted Mr Wilhelm's submissions on his motion to dismiss the proceedings, including that Mr May's claims in respect of the Consent, the First Modification, and the Construction Certificate were time-barred; and that Mr May's challenge to the Second Modification did not disclose a reasonable cause of action.
While acknowledging this overlap, Council submits, and I accept, that (at least initially) the respondents had different cases to answer and were thereby justified in having separate representation. Council does not describe in its submissions the manner in which its case on its motion differed from Mr Wilhelm's, but I record that unlike Mr Wilhelm, it had refrained from making any submission in relation to Mr May's allegations in respect of the Construction Certificate and the civil enforcement claims. Be that as it may, the commonality in the respondents' cases on a number of aspects precludes in my opinion any finding of conflict that would engage the first provisio in Statham (No 2) in a determinative manner.
In any event, even if I accepted that there was a possible conflict between Council and Mr Wilhelm's interests, I note that Council has not presented me with any evidence suggesting that appropriate enquiries were made as between the respondents to ensure that separate representation was ultimately necessary and appropriate as required in the first proviso of Statham (No 2).
In the alternative, Council submits that in light of its position as the consent authority responsible for the assessment and determination of the decisions the subject of the judicial review proceedings commenced by Mr May, joint representation with Mr Wilhelm ran the risk of creating an apprehension of bias if it was subsequently required to redetermine those decisions. The conclusion implied by Council was that these circumstances engage the second proviso in Statham (No 2) that it was appropriate for the respondents to remain at arm's length by seeking separate legal representation.
These submissions ignore altogether the issue of whether it was appropriate in the first place for Council to play an active role in defending its decisions in the judicial review proceedings commenced by Mr May. In proceedings challenging a consent authority's decision, it is usually necessary to join both the consent authority and the party having the benefit of the impugned decision. However, in order to preserve the impartiality that a consent authority is expected to maintain in any subsequent application to it which may ensue, and to minimise unnecessary costs necessarily resulting from having a multiplicity of parties, a consent authority is usually expected to submit to the orders of the Court: Oshlack at 77-78; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 17; (2006) 143 LGERA 268 at [35].
Accepting that the principles usually applied in relation to the award of costs in completed proceedings involving a consent authority may not necessarily dictate the determination of the costs incurred in interlocutory proceedings such as these, I nevertheless consider that they provide some guidance. As such, I accept that it may be appropriate for a consent authority to take an active role in the proceedings but find that it would not automatically follow that they will be awarded costs if they do so. In circumstances where Council largely adopted Mr Wilhelm's submissions, and where there was no conflict between their respective positions, I do not consider that there was a need for both respondents to participate in the proceedings and I accept Mr May's submissions to that effect, but for the fact that when Council filed its notice of motion, Mr May's (initial Class 4) summons then contained significant claims including negligence and nuisance specifically against Council. When these claims were effectively abandoned (in the amended summons), Council could have submitted to the Court's decision in relation to the amended summons.
I otherwise find Mr May's contentions suggesting disentitling conduct on the part of Council to be unfounded and to be somewhat inconsistent with my findings in May (No 2). The Court may depart from the usual order as to costs when a successful party, by its conduct, causes the unsuccessful party to incur unnecessary delay or expenses, or obtains relief which the unsuccessful party had already offered in settlement of the dispute. Although vague reference is made in Mr May's submissions to a settlement offer made to Council, I note that no evidence of this was provided to the Court. In addition, on its face, settling on Mr May's terms would have amounted to Council conceding the various allegations raised against it. I do not consider that this could have been reasonably expected of Council. In addition, I repeat that prior to filing its notice of motion to dismiss the (then articulated) proceedings, Council sought that Mr May discontinue his claims on the basis that each party would pay its own costs. In these circumstances, I do not consider that there has been any disentitling conduct suggesting that Council, or Mr Wilhelm for that matter, ought not be awarded their costs.
On balance, despite Council's reasonableness in these interlocutory proceedings, I do not consider it to be fair for Mr May to bear more than one set of costs. Council has not provided me with sufficient evidence of the alleged conflict between its interests and those of Mr Wilhelm. Further, while there is merit to the submission that the respondents ought to have been separately represented to prevent any apprehension of bias, I consider that if Council had filed a submitting appearance, this would have appropriately resolved any such concerns in line with the restraint usually expected of a consent authority. The overarching imperative of fairness to the unsuccessful party therefore militates against Council's argument that the respondents should be entitled to all of their costs.

Conclusion

Bearing in mind the above matters and doing my best to balance the interests of justice, I do not consider it reasonable for Mr May to bear more than one set of costs but I attach importance to the respondents' substantial success in their respective notices of motion. Thus, and apart from my concerns about an overlap between the respondents' interests and Council's involvement despite the withdrawal of a number of specific claims against it at the time of the hearing of the motions, fairness to the parties dictates a limited costs order in favour of each of the respondents. On balance, I find that Mr Wilhelm should receive 75% of his costs of his motion and Council should receive 25% of its costs of its motion.

Orders

The orders of the Court are: 1. The applicant, Stephen May, is to pay 75% of Mr Wilhelm's costs of the notice of motion filed 4 March 2023. 2. The applicant, Stephen May, is to pay 25% of Northern Beaches Council's costs of its notice of motion filed 7 March 2023.

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: 12 July 2023

Environmental Planning and Assessment Regulation 2000(NSW)

(2010) 173 LGERA 280

(2004) 136 LGERA 365

(2010) 172 LGERA 157

(2006) 143 LGERA 268

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