Moore v Corowa Shire Council

F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No.5) [2008] NSWLEC 235 Calderbank v Calderbank [1975] 3 All ER 333 Harvey v Minister Administering the Water Act 2000 (No.2) [2008] NSWLEC 213 CASES CITED: Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 Monaghan v Holroyd City Council; Holroyd City Council v Monaghan [2009] NSWLEC 112 Moore v Corowa Shire Council [2009] NSWLEC 59 Oshlack v Richmond River Council (1998) 193 CLR 72 Williams v Barrick Australia Limited [2003] NSWLEC 218; (2003) 128 LGERA 80

APPLICANT Mr M Baird SOLICITORS LEGAL REPRESENTATIVES: David Geddes

RESPONDENT Mr M J Astill, Solicitor of Blake Dawson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 His Honour: Council seeks the "usual order" that the unsuccessful applicant in these class 4 proceedings should pay its costs. The applicant argues that there should, in all the circumstances of the case, be no order as to costs. 2 I delivered my judgment on the substantive proceedings on 30 April 2009 - see [2009] NSWLEC 59. 3 Mr Moore had sought a series of declarations and orders in respect of the operation by Council of its sewerage treatment plant at Mulwala, and Council's use for discharge purposes of an open drain/channel across land owned by Mr Moore. Pollution of waters and the emission of odours, contrary to s 120 and s 129 respectively of the Protection of the Environment Operations Act 1997, were the essential complaints. 4 By the time of the hearing an entirely new plant was being commissioned on the site of the old plant, and Council had imposed a 400m buffer zone around it, effectively preventing any profitable development of Mr Moore's land. 5 Throughout the period of complaint the NSW Environment Protection Authority was tolerant of Council's breaches of its pollution licence, acknowledging that the cause was more the total inadequacy, by then, of the plant, rather than any failures of the Council as its licensed operator, and that Council was proceeding as quickly as it could with the development of a new plant, with the benefit of a State Government subsidy.

6 Rebuilding on the site, rather than relocating the plant, and the imposition of the buffer, were to some extent "dictated" by the State Government. (See generally pars [1] -[5] and [66]-[75] of the principal judgment). 7 The concluding paragraphs of the judgment included the following: "76. Even if the past failures and shortcomings of the STP were seen to amount to breaches of s120 and s129 of the POEO Act, there is no evidence at all to satisfy the court at this time that any potential future shortcomings will do so, requiring the court to intervene in anticipation. Dr Holmes could say only that the residences closest to the new STP could in future detect odour from time to time and ma y find it offensive, but that the new STP would emit less odour than the old. … 81. I conclude, therefore, that I could conceivably declare that the Council prior to September 2008 operated the Mulwala STP in breach of s120 (the third prayer for relief in [13] above), but not of s129, and that I could make no such declaration about the future operation of the (new) STP.

As any relevant breaches of the law are now in the past, there is no justification for any usual consequential relief, as the offending party (the Council) has already taken what the regulator (the EPA/DEC) saw as not only a reasonable approach, but really the only sensible and practical course to remedy the situation with the STP, and intends a similar reasonable remedial approach to the channel.

Council might justifiably be criticised for taking so long, but it was entitled, as an elected and accountable local government body, to wait its turn for the substantial government subsidy available from the State level.

Adapting what Cripps ChJ said in Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd ("Liverpool") (1991) 74 LGRA 265, at 277-281, a declaration "would serve no useful purpose", the courts do not "punish authorities under the guise of remedying a breach", there is "no practical utility in ordering … [the Council] to do what it has already been doing and says it will do in the future", and it is "now too late to make any significant remedial order and inappropriate to make a cosmetic order" or declaration.

The breach in Liverpool was not of a statute to which a penalty applied, but the breach complained of in Williams v Barrick Australia Limited (Williams") [2003] NSWLEC 218, (2003) 128 LGERA 80 could have been.

Bignold J warned in Williams against the civil courts making "bare declarations" about criminal offences, especially where the relevant conduct was "already past" and could not be undone, His Honour observing that there was "no utility" in granting such relief. His Honour went on to assess the evidence of the alleged breaches and was not satisfied they were substantiated. He then declined any relief, commenting specifically (at [146]) that if declaratory relief had been available it should be refused in the exercise of judicial discretion.

Fortified by those decisions of two eminent former judges of this court, in relevantly comparable situations, I decline to grant any relief to the Applicant, and must, therefore, dismiss his class 4 application." 8 Accordingly, I dismissed Mr Moore's class 4 application and reserved the question of costs. An appeal has been lodged, but no grounds of appeal have yet been filed. Council's submissions 9 Council submits that, under Uniform Civil Procedure Rule 42.1 and Rule 4.2 of the Land and Environment Court Rules 2007, costs should follow the event (here the applicant's lack of success in his litigation). 10 Council says it was entitled to "hold out" on its denial of the s 120 point until the hearing, and its "loss" on only that point does not detract from its successful defence of the proceedings overall. 11 Council also relies on two letters (dated 2 July and 23 September 2008) its solicitors sent to Mr Moore's solicitors demonstrating that "the litigation was doomed and that he could not achieve any practical success in the proceedings", and offering not to seek costs if the proceedings were discontinued by 16 July 2008 (see submissions par 1.1(b)(iii) and (c)). 12 Council does not seek costs on any higher basis than "party-party", despite the Calderbank v Calderbank [1975] 3 All ER 333 nature of the letters. Applicant's submissions 13 The applicant contends that the court should make no order for costs in favour of either side (1) because of the "public interest" nature of the proceedings (Oshlack v Richmond River Council ("Oshlack") (1998) 193 CLR 72; Harvey v Minister Administering the Water Act 2000 (No.2) [2008] NSWLEC 213; 193 CLR 72), (2) because also of some of the court's findings, and (3) because of "disentitling conduct" on the part of Council (the s 120 denial). 14 Mr Baird invited the court to consider a partial award of costs in view of the success of the unsuccessful party on the s 120 issue. See F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No.5) [2008] NSWLEC 235. Consideration 15 The costs principles are well-established, but their application to the facts and circumstances of a particular case can require anxious consideration. See discussion in Monaghan v Holroyd City Council; Holroyd City Council v Monaghan [2009] NSWLEC 112. 16 Costs are compensatory not punitive, and the court's discretion must be exercised judicially. 17 "Public interest" aspects of the litigation are but one factor to be weighed in the balance, but litigation does not come to be viewed as "public interest litigation" simply because members of the public, apart from parties and witnesses, have/take an interest in the outcome. 18 In this case there was demonstrated interest on the part of several (perhaps many) council ratepayers in the impacts of the old plant and the plans for a new one, but even more of those ratepayers have an interest in any liability Council might incur for the costs of these unsuccessful proceedings. 19 I do not consider that the incidence and seriousness of complaints about Council's performance of its environmental duties in this case was of such magnitude as to elevate the challenge to "public interest litigation". 20 Also, Mr Moore specifically disavowed the suggestion that he brought his proceedings in the public interest (see my substantive judgment at [2]-[3]). 21 However, the court acknowledges the misfortune which drove him to bring them. He bought land of some potential, expecting the sewerage treatment plant to be relocated. In the end, it could be said that it was really the fault of the State Government that the Council did not oblige in this respect, but, not only is the new plant in the old location, Council has chosen to impose new development restrictions on his land, again at the State Government's suggestion, despite the expectation that the adverse environmental impacts of the old plant will not be replicated by the new. 22 He brought his proceedings to a hearing, despite the respondent Council's offer that he could discontinue them with no order as to costs prior to 16 July 2008. Again, on 25 September 2008, the Council pointed out the futility of continuing with the proceedings, especially as the new plant was being commissioned. 23 I have concluded that this matter is purely private litigation, in which some members of the public in the town of Mulwala, and no one much else, might well take an interest (c.f. Oshlack). 24 Because of that I need not delay to consider if there might be "additional or special circumstances" in this case, which might displace the usual order for costs, once the proceedings are found to be "public interest" in nature (see Mr Baird's submissions, especially at pars 20 and 30ff). 25 I cannot find any of Council's conduct to be "disentitling" in the context of sounding in costs. It was alleged that Council had operated the plant in breach of pollution statutes, and Council was entitled to put the applicant to proof of those allegations. 26 Nor do I consider that I should make a partial order for costs, on the basis of the concession Council made at the hearing regarding the s 120 point. It is true, as Mr Baird says (submissions par 43(vi)) that the Council's focus remained on the odour question, but the alleged/admitted water pollution was one contributor to the odour complained of as the only element of environmental harm alleged. Conclusion and order 27 The applicant is ordered to pay the respondent's costs of the proceedings, including its costs on the Notice of Motion seeking an order for costs, on a party-party basis, as agreed or as assessed according to law.

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