Mike George Planning Pty Ltd v Woollahra Municipal Council

Judgment (6 paragraphs)

[1]

The Successful Respondent Seeks its Costs in a s 56A Appeal 1The successful respondent, Woollahra Municipal Council ("the council"), by notice of motion filed 4 September 2014, seeks an order that the unsuccessful applicant, Mike George Planning Pty Ltd ("Mike George"), pay the council's costs for a Class 1 appeal brought under s 56A of the Land and Environment Court Act 1979 ("the LEC Act"). 2The appeal was against a decision of a Commissioner of this Court upholding a decision by the council not to issue a development consent to the applicant for a change of use of a studio over a communal garage to an apartment (Mike George Planning Pty Ltd v Woollahra Municipal Council [2012] NSWLEC 1357). 3The Court dismissed the appeal on 15 August 2014 (Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123). No order was made as to costs on that occasion. Principal Issues for Determination 4The principal issues raised for determination on this motion are: (a) whether the s 56A appeal was a Class 1 proceeding for the purposes of r 3.7(1)(a) of the Land and Environment Court Rules 2007 ("the LEC Rules") or whether r 42.1 of the Uniform Civil Procedure Rules 2005 ("the UCPR") applies and costs follow the event; and (b) if r 3.7 of the LEC Rules does apply, whether it is fair and reasonable in the circumstances to order Mike George to pay the costs of its unsuccessful appeal. Legislative Framework 5Having regard to the principal issues raised by the parties, it is necessary to set out the statutory framework informing the application. 6Proceedings that fall under the Class 1 jurisdiction in this Court are defined in s 17 of the LEC Act: 17 Class 1 - environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following: (a)appeals under Part 9.2 of the Protection of the Environment Operations Act 1997, (aa) appeals under section 62J of the Sydney Water Catchment Management Act 1998, (b)appeals under section 114 of the Pesticides Act 1999 , (c)appeals under section 368 of the Water Management Act 2000, (ca) appeals under section 54 of the Biological Control Act 1985, (d)appeals, objections and applications under sections 75K, 75L, 75Q, 75W (5), 95A, 96, 96A, 97, 97AA, 98, 98A, 109K, 121ZK, 121ZM, 121ZS and 149F of the Environmental Planning and Assessment Act 1979, (e)appeals under section 30, 70, or 70A of the Heritage Act 1977 and appeals remitted to the Court under section 77 (1) (b) of the Heritage Act 1977 in respect of applications under the Environmental Planning and Assessment Act 1979, (ea) appeals under section 106 of the Threatened Species Conservation Act 1995, (eb) appeals under section 126ZF, 126ZS or 127ZZG of the Threatened Species Conservation Act 1995, (f)appeals under sections 37-40 of the Environmentally Hazardous Chemicals Act 1985 and applications under section 44 (4) of that Act, (g)appeals under section 10 (7) or 39 of the Native Vegetation Act 2003, (h)appeals under Part 6 of the Contaminated Land Management Act 1997, (i)appeals under section 24 of the Plantations and Reafforestation Act 1999, (j)appeals under section 35 (1) (a) or 45 (1) (a) of the Dangerous Goods (Road and Rail Transport) Act 2008, and (k)appeals under sections 90L and 91T of the National Parks and Wildlife Act 1974. 7The appeal the subject of the present proceedings was an appeal commenced pursuant to s 56A(1) of the LEC Act. That provision states: 56A Class 1, 2, 3 and 8 proceedings-appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. 8The s 56A appeal was in respect of a decision of a Commissioner of this Court that was, itself, an appeal against a decision of the council pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 9There can be no question that the appeal before the Commissioner was a matter that was in Class 1 of the Court's jurisdiction (see s 17(d) of the LEC Act). 10In proceedings in Class 1 of the Court's jurisdiction, the presumptive rule is that there is to be no order as to costs, unless the Court considers that such an order is fair and reasonable in the circumstances (r 3.7 of the LEC Rules). Some, but not all, of these circumstances are enumerated (r 3.7(3) of the LEC Rules). 11Thus r 3.7 of the LEC Rules relevantly provides that (emphasis added): 3.7 Costs in certain proceedings (1)This rule applies to the following proceedings: (a)all proceedings in Class 1 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: (a)that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i)in one way was, or was potentially, determinative of the proceedings, and (ii)was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b)that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i)that are required by law to be provided in relation to any application the subject of the proceedings, or (ii)that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c)that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d)that a party has acted unreasonably in the conduct 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. 12The history and rationale behind the promulgation of r 3.7 was explained by Biscoe J in Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34 (at [4]-[5]): 4 The Land and Environment Court Rules 2007 commenced in January 2008 and replaced the Land and Environment Court Rules 1979. Rule 3.7(2) of the new rules replaced Pt 16 r 4(2) of the old rules which provided that: "No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable". The essential difference between those two provisions is the absence of the words "in the circumstances of the particular case" in the new rule. In relation to the old provision, Bryson JA in Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292, (2006) 151 LGERA 46 at [4] said that those words excluded "generalised approaches". By reason of the omission of those words in the new rule, it may be that generalised approaches are permissible, although a specific generalised approach may be insufficient to enliven the discretion or may be displaced by the circumstances of the particular case. The non-exhaustive list of circumstances in rule 3.7(3) directs attention to the circumstances of the particular case. The list is similar to the indicative guidelines formulated under the old rule in Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15] by Preston J and approved by the Court of Appeal in Port Stephens Council v Sansom [2007] NSWCA 299 (2007), 156 LGERA 125 at [56]. 5 The effect of the costs rule is that, in the ordinary case, costs will lie where they fall. This presumptive rule is not displaced unless the Court considers that the making of a costs order is fair and reasonable in the circumstances. The rationale of the presumptive rule was addressed in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103, (2008) 158 LGERA 224 at [9] - [10] by me as follows: "[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. These principles were identified in the context of the former Part 16 r 4 by the Court of Appeal in Port Stephens Council v Sansom at [48], [53] and [54] and Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; (2007) 156 LGERA 150 at [33] and [35]. Those judgments were delivered on the same day by an identically constituted Bench of five judges. Spigelman CJ delivered the leading judgment in each case. The presence of the words merits review' or `capacity', cannot be determinative or, indeed, entitled to presumptive weight: Sansom at [60]. In the present case, there was no suggestion that the absence of these words from the new rule bears on the outcome. [10] One of the purposes of the costs follow the event rule in ordinary civil litigation is to encourage the parties to settle their disputes: Sansom at [26]; Thaina at [65]. In contrast, a no discouragement principle underlies the no costs rule in planning appeals, that is, that persons generally should not be discouraged from exercising their rights of appeal via the prospect of an adverse costs order: Sansom at [22]-[23]. This may be rationalised on the bases that a significant purpose of planning appeals is to improve the decision-making process and that those involved are not adversaries in the same sense as adversaries in conventional civil litigation. Spigelman CJ explained this in Sansom at [71]-[74]: 71. ... An appeal from a consent authority is similarly an element of the management of the scheme of the EPA Act by that authority. To treat such a review as equivalent to a lis between adversarial parties is, in most cases, a considerable oversimplification. In particular, it does not give weight to the public interest regulatory responsibilities of the consent authority, which should itself be anxious to ensure that it has made the correct decision. In such a context, characterisation of the proceedings either as merits review or as equivalent to adversarial litigation does not appear to me to be a particularly useful approach to the formulation of the judgment for which r 4(2) provides. 72. In my opinion, a significant purpose served by planning appeals is to improve the quality of the decision-making process. This is a purpose which any statutory consent authority should be presumed to be anxious to achieve as an incident of its exercise of the statutory powers which Parliament has reposed in it. Individuals and corporations who challenge such decisions do not have the same obligations. They do, however, have a legitimate expectation that the decision-making process will result in the correct or preferable decision. 73. One of the critical differences between ordinary civil litigation and planning appeals is the absence of a reciprocal relationship between the interests of the parties. They are not, or should not be, adversaries in the sense that can be said of the usual kind of civil litigation in courts. 74. Underlying Justice McClellan's approach [in Gee v Port Stephens Council [2003] NSWLEC 260; (2003) 131 LGERA 325] is an assumption that each side in a planning appeal should be treated the same as a matter of fairness: whether the proceedings are classified as merits review or as raising an issue of capacity. In my opinion, a comparison of the interests to which I have referred at [71]-[73] of these reasons, suggest that an unsuccessful consent authority should be more likely to suffer an adverse costs order than an unsuccessful applicant." The Council's Submissions 13The council essentially submitted, first, that costs should follow the event pursuant to r 42.1 of the UCPR because the proceedings could not be classified as Class 1 proceedings for the purposes of r 3.7 of the LEC Rules. This was because the s 56A appeal was not an appeal referred to in s 17 of the LEC Act, and therefore, fell outside the ambit of that provision. The Court's jurisdiction was defined by statute (see s 16 of the LEC Act). There being no other legislative provision conferring Class 1 jurisdiction upon the Court, the s 56A appeal fell outside that jurisdiction. 14Second, and in the alternative, if r 3.7 did apply, the council was still entitled to its costs pursuant to the factors listed in r 3.7(3), in particular sub-rules (3)(a), (d), (e) and (f). 15Insofar as Mike George was notionally successful in demonstrating that a denial of procedural fairness had occurred in the proceedings before the Commissioner (one of its five grounds of appeal), ultimately this did not afford it success on the appeal because, as the Court found, the breach of natural justice was only in respect of its alternative merits case, which as the Commissioner (correctly) held, was irrelevant if consent of the Owners Corporation was required (at [88] in Mike George (No 3)).

A Cost Order is Not Fair and Reasonable in all of the Circumstances 23Having established that r 3.7 of the LEC Rules applies to the s 56A appeal, the relevant question is whether the presumptive rule that there be no order for costs should be displaced because it is fair and reasonable in the circumstances to do so. 24The question of fairness and reasonableness is informed by the criteria contained in r 3.7(3). In Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196; (2008) 160 LGERA 164 Biscoe J noted that r 3.7(3) is not a code but is a non-exhaustive list of circumstances which might inform the Court's discretion under r 3.7(2) (at [73]). This is evident from the text of the rule. 25Although pre-dating the enactment of r 3.7 of the LEC Rules, in Grant v Kiama Municipal Council [2006] NSWLEC 70, Preston CJ in LEC usefully canvassed the kinds of circumstances where it may be fair and reasonable to order costs against a party pursuant to the now repealed r 4(2) of the Land and Environment Court Rules 1996. The comments are nonetheless relevantly apposite, in my view, to the present application given the similarity in the wording of both rules. 26In Grant his Honour opined (at [15]): 15 An examination of the cases reveals a variety of circumstances where courts have considered that it would be fair and reasonable to make an order for costs. These include the following circumstances, although these do not exhaust the circumstances: (a) where the proceedings cease to have the character of merits review, such as where a central issue is whether there is power to grant the approval sought at all: Teller Properties Pty Limited v Randwick City Council (1994) 84 LGERA 369 at 371; Gee v Port Stephens Council [2003] NSWLEC 260; (2003) 131 LGERA 325 at 339 [56] and 340 [60]; Pancho Properties Pty Limited v Wingecarribee Shire Council [2004] NSWLEC 620 (9 November 2004) at [19]; Shaynd v Ku-ring-gai Municipal Council [2005] NSWLEC 79; (2005) 138 LGERA 395 at 400, [21]- [22]; and Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737 (9 December 2005) at [52]; but there may be exceptions where no order is appropriate: Broadwater Action Group Inc v Richmond Valley Council (No. 2) (2003) 129 LGERA 401 at 405 [7] - 407 [12] and Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) at [15]-[19]; (b) where the matter the subject of the costs application involves only a preliminary question of law: Teller Properties Pty Limited v Randwick City Council (1994) 84 LGERA 369 at 371; Gibson v Mosman Municipal Council [2001] NSWLEC 201; (2001) 116 LGERA 397 at 400; Gee v Port Stephens Council [2003] NSWLEC 260; (2003) 131 LGERA 325 at 339 [56] and 340 [60]; Shaynd v Ku-ring-gai Municipal Council [2005] NSWLEC 79; (2005) 138 LGERA 395 at 400 [21]- [22]; but, again there may be exceptions where no order is appropriate: Broadwater Action Group Inc v Richmond Valley Council (No. 2) (2003) 129 LGERA 401 at 405 [7] - 407 [12] and Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) at [15]-[19]; (c) where a party fails to provide or delays unreasonably in providing information or documents required as part of the application for approval, including statements required by the relevant statute (such as an environmental impact statement or species impact statement required by s 78A(8) of the EPA Act, or statement of environmental effects required by para 2(1)(c) in Part 1 of Schedule 1 and cl 50(1)(a) of the Environmental Planning and Assessment Regulation 2000) or statements or information required by an environmental planning instrument, or information or documents centrally relevant to the development the subject of the application and necessary to enable a consent authority to gain a proper understanding of and to give proper consideration to the application: Bruyan v Hawkesbury City Council [2006] NSWLEC 51 (15 February 2006) at [14] - [15] and Barclay v Mosman Council (No. 2) [2005] NSWLEC 291 (3 June 2005) at [17]-[23]; (d) where a party has acted unreasonably in the conduct of the proceedings such as: (i) delaying unreasonably in taking action or making proper concessions or agreeing to proper amendments to originating process, pleadings, evidence or interlocutory directions and orders: Statewide Developments Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005) at [26] and [27] and Prestige Building Services Pty Ltd v Coffs Harbour City Council [2006] NSWLEC 72 (21 February 2006) at [22]; or (ii) unnecessarily protracting the proceedings, either during the interlocutory phase in preparation for the hearing (such as by failing to comply with court directions and orders in relation to pleadings, evidence or production of documents or failing to attend or being ill-prepared when attending callovers or directions hearings) or at the hearing (such as by prolix argument, protracted examination or cross examination of witnesses, repetition of evidence from experts or other witnesses, adduction of irrelevant evidence, innumerable or baseless objections to evidence, adopting a scattergun approach by raising every conceivable objection to a proposed development or elevating matters of minutiae and trivia to issues to major significance): Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153; Donald Crone & Associates & Bathurst City Council (1988) 130 LGERA 139 at 142, 143; Golden v Coffs Harbour City Council (No. 2) (1991) 72 LGRA 406 at 407; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 98 [69]; and Gorczynski v Perera [2003] NSWLEC 6; (2003) 124 LGERA 286 at 302 [86]; (e) where a party has acted unreasonably in circumstances leading up to the proceedings, such as effectively inviting the litigation: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97-98 [69]; Evans v Maclean Shire Council [2004] NSWLEC 89; (2004) 133 LGERA 270 at 275 [21]- [24]; and see Donald Campbell & Co v Pollak [1927] AC 732 at 812; (f) where the proceedings or the defence of the proceedings has been commenced or continued in circumstances where the applicant or respondent respectively, properly advised, should have known that it had no chance or very poor prospects of success: Broadwater Action Group Inc v Richmond Valley Council (No. 2) (2003) 129 LGERA 401 at 411 [31]- 421 [36]; Quota Corporation Ltd v Leichhardt Municipal Council (1981) 45 LGRA 319 at 325; Minas v Botany Municipal Council (1988) 65 LGRA 129 at 136; Raiti v Leichhardt Municipal Council (1991) 72 LGRA 333 at 335-336; Wyong Shire Council v Smith [1992] NSWLEC 134 (24 December 1992) at pp 8-9; Cadonia Pty Ltd v Leichhardt Municipal Council [1994] NSWLEC 122 (5 August 1994) at p 5; Morris v Gosford City Council [1996] NSWLEC 254 (29 November 1996) at pp 15-16; Mudie v Gainriver Pty Ltd [2002] QCA 546; (2002) 124 LGERA 393 at 406 [38], [40]-[42], 414 [66], [68]; and Krivanek v Blue Mountains Council (No. 2) [2004] NSWLEC 732 (24 December 2004) at [4]; and (g) where a party conducts its case in the proceedings for extraneous purposes, such as where a consent authority contests an appeal against its decision not to grant an approval for reasons unassociated with the proceedings, not in good faith, in dereliction of duty or not on a rational basis: Quota Corporation Ltd v Leichhardt Municipal Council (1981) 45 LGRA 319 at 325-326; Mirvac Pty Ltd v Parramatta City Council (1983) 9 APA 61 at 69; McCalden v Newcastle City Council (1983) 10 APA 143 at 148; and Belgiorno-Nottis v Mosman Municipal Council [2004] NSWLEC 731 (24 December 2004) at [3]. 27In oral argument the council alluded to the fact that the proceedings had ceased to have the character of merits review and thus the policy considerations informing the presumptive rule in r 3.7(2) of the LEC Rules (see Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 at [9]-[10], quoted above) did not apply with equal force to s 56A appeals. 28Despite a valiant attempt by Mike George to persuade the Court otherwise, this submission must be accepted. Considerations of costs and finality mean that there must be limits to the 'no discouragement principle' underlying r 3.7. Although it is readily acknowledged that an important purpose of planning appeals is to improve decision-making processes, where the decision-maker is not the original consent authority, but is the Court, this purpose is more muted, but not, it should be noted, wholly silent. 29Having said this, given that by their very nature s 56A appeals will cease to have the character of merits review, this circumstance, of itself, cannot carry significant weight. 30At the risk of repetition, orally and in its written submissions the council also relied on r 3.7(3)(a), (d), (e) and (f) of the LEC Rules to contend that it is fair and reasonable to order Mike George to pay its cost of the unsuccessful appeal. 31Although the council accepted that any award of costs was discretionary and that the factors listed in r 3.7(3) were not limited, it nevertheless argued that sub-rule 3.7(3)(a) was determinative. That is to say, once it could be demonstrated that the appeal involved as a central issue a question of law, or of mixed fact and law, which, as in the present appeal, was actually determinative of the proceedings, this was sufficient to render an order for costs fair and reasonable. 32I do not agree. First, all s 56A appeals must, to be competent, involve a question of law. Therefore, the logical corollary of the council's submission would be that all competently instituted s 56A appeals would attract the operation of r 3.7(3)(a) and result in a costs order in the successful party's favour. Second, not only does this approach ignore the language of r 3.7 ("might consider" and "include (without limitation)"), it effectively transmogrifies sub-rule (3)(a) into a rule that costs will follow the event contrary to r 3.7(2). In my view, if this is what the draftsperson had intended (and for policy reasons this may be attractive), he or she would have, with respect, said so with far greater precision and transparency. 33While it is correct to observe, as the council did, that in many s 56A appeals costs have, as it has transpired, followed the event, each case turns on its own facts, and in many of the cases, the Court relied not only on r 3.7(3)(a) but the presence of other circumstances referred to in that sub-rule. 34In the present appeal, the proceedings involved as a central issue a question of law that was potentially determinative of the proceedings, namely, whether or not Mike George needed the consent of the Owners Corporation. If it did, then whether or not the property was a "dwelling" within the relevant planning instrument, or whether or not the Commissioner had denied Mike George procedural fairness (which the Court found she had), was irrelevant. Although this factor favours the making of a costs order against Mike George, for the reason given above, I find that it is neither determinative nor sufficiently weighty that alone a costs order in the council's favour is warranted. 35Next it is necessary to consider whether Mike George has acted unreasonably in the conduct of the proceedings, commenced the proceedings for an improper purpose, or whether the appeal did not have reasonable prospects of success (r 3.7(3)(d), (e) and (f) of the LEC Rules). Each is dealt with in turn. None was supported by affidavit evidence. 36The council relied on observations made by the Court in Mike George (No 3) that Mike George had either abandoned grounds of appeal and argument (at [2] and [71]), or had attempted to raise new, or vary existing, grounds of appeal, in circumstances where no formal application to amend the grounds had been made (at [3] and [67]), to submit that its conduct of the proceedings was unreasonable (r 3.7(3)(d)). 37The submission must be rejected. First, the abandonment of the sixth ground of appeal by Mike George occurred prior to the hearing and did not appear to result in any material wasted costs by the council. Second, Mike George's attempts to vary the existing grounds of appeal were in short compass and were not, in any event, accepted by the Court. Mike George was required, in the absence of any formal application to amend its grounds of appeal, to strictly adhere to the grounds articulated in the summons. Thus no additional time was needed by the Court or the council to meet any changed case and no wasted costs ensued as a consequence. In the language of Grant, Mike George's conduct did not constitute "unreasonable delay" or result in the "unnecessary protraction" of the proceedings. In other words, I do not consider Mike George's conduct during the hearing to have been unreasonable for the purposes of r 3.7(3)(d). 38For completeness, it should be noted (somewhat ironically in light of the discussion above) that at the hearing of the council's application, the council abandoned an argument contained in its two sets of submissions that Mike George had acted unreasonably by not foreshadowing its two successful recusal applications before the Chief Judge and Craig J. As a consequence, it is unnecessary to deal with this contention. 39The matters relied upon for the purpose of r 3.7(3)(d) were also relied upon for sub-rule (3)(e). It is almost axiomatic that if the Court was unwilling to find this conduct unreasonable, it was equally remote that it would constitute evidence of any improper or extraneous purpose on the part of Mike George. As it transpired, this was the case. In the absence of any other evidence as to Mike George's motive for bringing or conducting the proceedings, the existence of this factor has not been demonstrated by the council. 40Finally, the council asserted that Mike George commenced or continued the appeal when it did not have reasonable, in the sense of "very poor" or "no chance" (Grant at 15), prospects of success (r 3.7(3)(f)). I cannot accept this submission. As the reasons in Mike George (No 3) reveal, the grounds argued were all reasonable and highly arguable. Indeed Mike George enjoyed some, albeit fleeting, success in respect of its fifth ground of appeal, namely, that it had been denied procedural fairness. Conclusion 41Having rejected the circumstances relied upon by the council in r 3.7(3)(d), (e) and (f), what remains in the council's favour is the fact that it was successful on an appeal that, by its very definition in s 56A, involved as a central issue a question of law that was determinative of the proceedings. In the circumstances of this case, I do not consider this to be sufficient to displace the presumptive rule in r 3.7(2). Put another way, I do not consider that the making of an order for costs is fair and reasonable in the circumstances. Costs of Motion 42Consistent with my reasoning above, the application was also brought within Class 1 of the Court's jurisdiction and a similar result must follow with respect to the costs of the failed notice of motion, namely, that there should be no order as to costs. At no point could the council's conduct be characterised as unreasonable (despite the abandonment by it of some of its arguments) or improper and its application was not without merit.

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