Oosthuizen v Sutherland Shire Council

The Practice Direction 1993 ("the Practice Direction") relevantly provides that in class one and class two applications:- The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional.

In Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78 Handley JA determined that the Practice Direction in relation to an application for costs could not inhibit the discretion of the Court conferred by s 69(2) of the LEC Act.

The Practice Direction originated from the traditional practice of the Local Government Appeals Tribunal which is followed in this Court. In McDonald Industries Limited v Sydney City Council (1979-81) 43 LGRA 428 McClelland CJ said at 445:- Under s 69 of the Land and Environment Court Act a discretion is conferred on the Court to award costs but the general rule established by the Local Government Appeals Tribunal that, in appeals from decisions of local councils the parties should meet their own costs is one that the Court proposes to adopt. I refer to it as a general rule because the Court would not want the conclusion to be drawn that there would never be an occasion on which costs would be awarded. Some exceptional circumstances would need to be established to attract an order for costs.

Such principle was confirmed by Pearlman J in Berk v Woolhara Municipal Council [No 2] (1992-1993) 78 LGERA 180 at 184 wherein Her Honour said:- The Practice Direction does not lay down an inflexible guideline, but allows the Court to exercise its discretion to award costs in cases where it is appropriate to do so. It applies only in planning and building appeals in classes 1, 2 and 3 of the Court's jurisdiction (but not in classes 4 and 5, where costs ordinarily follow the event). It was brought into force to formulate a long-standing policy of the Court, based on a philosophy of encouraging parties to seek review rather than discouraging them by burdening them with the risk of an award of costs against them. I see no reason, in principle or authority, to depart from the practice.

Her Honour confirmed the need to exercise an unfettered discretion when considering costs in any application as follows (at 184):- Nor should I be constrained to fit the facts of this case to the facts in previous decisions of this Court where costs have or have not been awarded. That would be to fetter the Court's discretion, which must remain unfettered, except that there may be a guideline or principle to assist the Court to exercise it, which the Practice Direction amounted to: cf Latoudis v Casey . Each case must be examined on its merits.

In summary, the power to award costs is absolute and unfettered and subject only to such power being exercised judicially (see Oshlack v Richmond River Council (1998) 193 CLR 72). The practice of this Court is that costs do not ordinarily follow the event in planning and building appeals unless there are 'exceptional circumstances' to warrant an order for costs.

The applicant in effect seeks an apportionment in respect of issue eight. However apportionment of costs against a successful applicant should only be made in exceptional circumstances, otherwise the ultimate ends of justice might be prevented because a party is dissuaded by the risks of costs from canvassing all issues 'however doubtful' (see Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J; see also Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 per Toohey J).

It could not be said that the council acted unreasonably in pursuing issue eight in view of the expert advice it had received. The evidence was ultimately not accepted by the Commissioners but this does not lead to the conclusion that the conduct of the council in pursuing such matters, even with 'vigour', was unjustified. The Commissioners did not suggest that such issue should never have been raised.

In these circumstances the Court concludes that the conduct of the council was not unreasonable as alleged and that no exceptional circumstances exist to warrant a departure from the practice of this Court to make no order for costs in planning and building appeals. For these reasons the Court concludes that no order for costs should be made.

The Court therefore orders that:-

1. The notice of motion be dismissed.
2. The exhibits be returned.

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