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[2005] NSWLEC 651
Land and Environment Court (NSW)
2005-11-15
Bignold J, Mr J
Original judgment source is linked above.
CITATION : Pittwater Council v Varney [2005] NSWLEC 651
APPLICANT: Pittwater Council
PARTIES : RESPONDENT: Varney
Costs :- in class 4 proceedings where consent orders made - whether proceedings were necessary - whether prosecution of the proceedings was unreasonable - whether any estoppel by representation applies. KEY ISSUES:
LEGISLATION CITED: Land and Environment Court Act 1979, s 69
Oshlack v Richmond River Council (1998) 193 CLR 72; CASES CITED: Auburn Council v F N Eckold Pty Ltd (1974) 34 LGRA 101
APPLICANT: Ms G Furness, Barrister SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES:
RESPONDENT: Mr J Johnson, Barrister SOLICITORS Cowley Hearn
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
40210 of 2001 PITTWATER COUNCIL v MARTIN WARWICK VARNEY
JUDGMENT A. INTRODUCTION 1 HIS HONOUR: By its Notice of Motion filed 22 April 2005, the Applicant (the Council) seeks an order that the Respondent pay all of the Council's costs in these class 4 proceedings which were commenced on 21 November 2001 and were concluded by consent orders made on 22 March 2002 and further consent orders made on 12 May 2004. Both those orders reserved the question of costs. 2 Based upon those outcomes as reflected in the consent orders the Council claims that it was the successful party in the proceedings and seeks its costs in the proceedings in accordance with established principle that costs follow the event. 3 The Respondent opposes the Council's Motion on a number of different grounds - firstly on the ground that the Council was not successful in the proceedings, secondly on the ground that the proceedings were unnecessary, thirdly on the ground that the Council in the course of negotiations between the parties during the interval between the two sets of consent orders, made a representation to the Respondent which the Respondent acted upon to his detriment upon the basis of which the Respondent asserts that the Council is estopped from seeking any costs order against the Respondent. The Respondent claims its costs on the hearing of the Council's Motion for costs. 4 Unfortunately, there is a protracted history documented in more than 100 written communications (totalling nearly 400 pages) passing between the parties' solicitors that are relevant to this litigation and which must be surveyed in order to adjudicate upon the disputed question of costs. 5 In surveying the litigation history four distinct or discrete period or phases can be identified and it is instructive to consider those separately from the viewpoint of the disputed costs question. They comprise -
(i) the period prior to commencement of the class 4 proceedings. (ii) the period from the commencement of the proceedings until the consent orders made on 13 March 2002; (iii) the period from those consent orders until the making of the second set of consent orders on 12 May 2004; and (iv) the period from those latter consent orders until the filing of the Council's Notice of Motion seeking costs in the proceedings. B. THE LITIGATION HISTORY 6 Within the protracted litigation history spanning more than four years and involving a staggering amount of correspondence passing between the parties' solicitors it is a remarkable fact that there have only been four separate occasions upon which the Court has given an adjudication and on each of those occasions that adjudication has been by way of consent orders made without any necessity for the conduct of any hearing on the merits of the case (including the reception of any of the extensive array of evidence that has been filed in the proceedings). Two sets of orders varied the original orders made (both interlocutorily and finally). Accordingly, at the outset of the survey of the litigation history, it is of first importance to recall the consent orders that have been made, because those orders encapsulate the result of this litigation. 7 On 14 December 2001 the Court by consent granted the following interlocutory relief: 1. Pending further or other order the Respondent cause to be forthwith, (and, in any event, not later than 7 days from the date of this order) installed the protective and support structure, the design of which is attached hereto, across the gully feature on the Property in accordance with the conditions. 2. Property means Lot 7 in deposited plan 222900 known as 8 Amelia Place, North Narrabeen. 3. Conditions mean (a) that the protective structure is installed under the supervision of the suitably experienced geotechnical practitioner (b) that the protective structure be located wholly on the Property unless the owner of 76 Powderworks Road, North Narrabeen otherwise consents in writing. 8 On 4 March 2002 the Court made the following order: 1. That the Consent Orders made by the Court on 14 December 2001 be varied to read: (a) The Respondent must not carry out or permit to be carried out further works to the gully feature on the Property without further Order of the Court before the conclusion of these proceedings. (b) Specifically, no alteration is to be made to the protective measures installed to secure the retaining wall the subject of these proceedings before the conclusion of these proceedings. (c) Before 1 May 2002 the Respondent must cause a suitably qualified geotechnical engineer to inspect the retaining wall and will carry out any works recommended by that engineer to be necessary for the continued stability of that wall, and will provide to the applicant a written report by that engineer of his opinions in that regard. 9 On 13 March 2002 the Court by consent made the following final orders: 1. Declares that in contravention of section 76A(1) of the Environment Planning and Assessment Act 1979, the Respondent, its servants and agents did on and from 22 August 2001 until 21 November 2001, carry out, cause permit or suffer the carrying out of the development on the property known as 8 Amelia Place, North Narrabeen ( Property) without a development consent in circumstances where a development consent was required. 2. Orders the Respondent to carry out such works as are reasonably necessary to reinstate the site of the Development described in the Application substantially to the condition it was in immediately prior to the Development (Reinstatement Works) if Development Application no. No 180/02 lodged with it by the Respondent on 6 March 2002 (DA) IS REFUSED BY THE Applicant (subject to any appeal rights against that refusal under Section 97 of the Environmental Planning & Assessment Act 1979) in the manner and pursuant to the time frame set out in the Schedule to these Orders. 3. Orders the Respondent to carry out the interim protection measures described in the Schedule to these Orders. 4. Notes the Applicant's agreement to provide the Information described in the Schedule to these Orders within the time frame set out in the Schedule. 5. Reserves the judgment on the issue of costs. 6. The timetable set out in the Schedule to these Orders may be varied by written agreement between the parties. 7. Grants liberty to apply to both parties on two days notice. Schedule (A) Interim Stability Measures (i) The Respondent will not carry out or permit to be carried out further works to any part of the Development described in the Application (and specifically the boulder retaining wall on the southern boundary of the Property and the retaining wall on the eastern boundary of the Property ( Retaining Walls ) except in accordance with this Schedule and these Orders, unless and until development consent has first been obtained for such works. (ii) Before 1 May 2002 and thereafter, at intervals determined by a suitably qualified geotechnical engineer, the Respondent will cause a suitably qualified geotechnical engineer to inspect the Retaining Walls, and protective structure installed pursuant to the Orders of the Court dated 14 December 2001 and the Respondent will carry out any works recommended by that suitably qualified geotechnical engineer to be necessary for the stability of each of those retaining walls and will provide to the Applicant a written report by that suitably qualified geotechnical engineer of his or her opinions in that regard within 14 days of the inspection. (B) Reinstatement Works (i) If Development Application No. NO180/02 lodged with it by the Respondent on 6 March 2002 is refused by the Applicant, and if the Respondent determines to lodge a Class 1 appeal, that appeal must be lodged within 14 days of receiving a Notice of Determination for the DA. (ii) The Respondent will provide the Applicant with particulars of works proposed by the Respondent to reinstate the Property within 14 days of the determination by the Applicant to refuse the DA or within 14 days from the date on which judgment is delivered in the Class 1 appeal. (iii) The Applicant will advise within 14 days of receiving the particulars as to whether the proposal they describe is adequate, and if not, any measures (or alterations) which the Applicant submits are reasonably necessary to be included (or made) to the proposal in order to reinstate the property and will answer any reasonable questions from the Respondent in that regard. (C) Time frame for carrying out of the works The Respondent will complete the Reinstatement Works within 60 days of being advised by the Applicant that the proposal is adequate. 10 In making those orders, the Court was requested by the Respondent to note his prior willingness to provide his personal undertaking in lieu of the making of orders 2 and 3. 11 On 12 May 2004 the Court made the following consent orders - 1. The Respondent must carry out the works contained in the Plans in accordance with the Conditions of Consent attached and marked A ( the Agreed Works ). The Agreed Works are to be carried out in substitution of the Reinstatement Works referred to in the Court Order dated 13 March 2002. 2. The Respondent agrees to carry out and complete the Agreed Works within 3 months of the date of this Order. 3. The timetable contemplated in paragraph 2 of this Order may be varied by written agreement between the parties. 4. The question of costs is reserved. 5. Liberty to either party to apply on two (2) days notice.
(The Conditions of consent need not be recited here.) 12 Three consent orders were made in response to an application by the Council. The interlocutory relief was sought and obtained three weeks after the class 4 proceedings had been commenced. The 2002 consent orders were made in the course of the three days that had been allocated for the final hearing of the Council's class 4 application. The 2004 consent orders were made after the Council had exercised the liberty to restore granted by the 2002 consent orders. (The variation of the interlocutory orders was made on the application of the Respondent.) 13 Although not expressly so formulated, the 2004 consent orders were made by way of variation of (indeed more precisely by way of substitution for) the 2002 order which had required the Respondent to reinstate his property "substantially to the condition it was in immediately prior to the carrying out of the unlawful development". 14 The correspondence passing between the parties' solicitors indicates that the parties were not able to agree upon the precise nature of the reinstatement works and it was on account of this fact that the proceedings have been so protracted following their prompt initial conclusion by the making of the 2002 consent orders. 15 In the result, the 2004 consent orders specified the requisite reinstatement works with far greater content and detail than had been the case with the formulation of the 2002 consent orders. 16 It was in the course of the parties' attempts to agree upon the content and detail of the requisite reinstatement works that the Respondent claims the Council made a relevant representation which provides the foundation for the Respondent's assertion of the relevant estoppel against the Council's claiming its costs in the proceedings. 17 Having considered the four consent orders made in the course of the litigation history, it is now necessary to examine the entire litigation history by reference to the four distinct periods or phases that I have earlier identified because different considerations as to any costs order may be applicable to each of those discrete periods.
(i) The period prior to the commencement of the proceedings 18 By written notice dated 24 August 2001, the Council gave a direction to the Respondent pursuant to the Protection of the Environment Operations Act 1997, s 91 in the following terms: 1. Cease all work associated with alleged illegal landfill and associated works within 24 hours of receipt of this Order. 2. Install erosion controls to prevent any silt or sediment from being washed from the property, within 24 hours of the date of receipt of this Order. 3. To obtain and forward a copy of the Geo Technical Engineer's report in relation to the illegal fill and the remedial steps required to remove all offending material to Council within 3 working days of the date of receipt of this Order. 4. Implement any recommendations of the Geo-Technical Engineer, in relation to the removal of the offending material. 5. To remove all offending material under the supervision of a qualified, practicing Geo-Technical Engineer within 5 working days from the date of receipt of this Order. 6. After the offending material has been removed obtain a report from the Geo-Technical Engineer certifying that the area is stable and will not endanger any person/s or property and forward a copy of this report to Council within 10 working days of the date of receipt of this Order. 19 By letter dated 31 August 2001, the Respondent's Solicitor responded to the statutory notice given to the Respondent and asserted that the notice was void and of no effect because there was no relevant "pollution incident". The letter went on to advise that the Respondent, without admission, was prepared to lodge a building certificate application in respect of "the landscaping works" that the Respondent had carried out on his property without having obtained the requisite development consent. 20 By letter dated 5 September 2001 the Council noted that the foreshadowed building certificate application was not considered to "adequately address the Council's concerns" and advised that unless the unauthorised land fill etc was removed from the property in accordance with the requirements of the s 91 Clean-up Notice the Council's Solicitors would be instructed to commence enforcement proceedings without further delay. 21 By letter dated 4 October 2001 the Council's Solicitors advised the Respondent's Solicitor that the Council was now considering the commencement of both class 5 and class 4 proceedings in this Court for the breach of the EP&A Act committed by the Respondent. They also advised that the Council did not accept that the works involved were "insignificant or of minimal environmental impact" as had been represented by the Respondent's Solicitor. Rather, it was asserted that the Council held concern about the stability of the boulder wall. 22 The Respondent's Solicitor responded by letter dated 13 November 2001 advising inter alia as follows: Our client has not progressed any further works since being informed of Council's concerns, and our instructions are that our client will undertake to carry out reinstatement works to Council's reasonable satisfaction once the application to be lodged is processed and determined (subject to his rights of appeal), if the application is finally refused, or alternatively any works required by conditions of any approval obtained. Our client will be seeking to have any injunctive proceedings adjourned in those circumstances to allow the foreshadowed building certificate (or other) application to be processed and determined. As there would therefore appear to be no utility in commencing such proceedings our client expressly reserves its rights as to the costs of any proceedings unnecessarily commenced. We do have instructions to accept service of any Class 4 proceedings to be commenced in relation to the disputed works. Our client had prior to your recent inquiries arranged a meeting with his advisers for this week to discuss the matters raised in Paragraph 4 of your letter dated 4 October 2001 to our office. We anticipate being able to lodge the foreshadowed application by early next week. 23 The Council's Solicitors by letter dated 21 November 2001 responded by stating that the "fill" placed on the Respondent's land was not a "building" and hence could not be legitimised by the issue of a building certificate and advised that the Council required both the fill and the retaining wall to be removed from the Respondent's property. They advised that they had been instructed to commence class 4 proceedings. 24 On 21 November 2001 the Council commenced class 4 proceedings claiming the following relief: 1. A declaration that, in contravention of section 76A(1) of the Environmental Planning and Assessment Act 1979, the Respondent, its servants and agents on and from 22 August 2001 until 21 November 2001 carry out, cause, permit or suffer the carrying out of the Development on the Property without a development consent in circumstances where a development consent was required. 2. An order under section 124 of the Environmental Planning and Assessment Act 1979 that the Respondent, within 30 days of the making of this Order, remove or cause to be removed from the Property the Development and restore the Property to the condition the Property was in immediately prior to the carrying out of the Development. 3. An order that the Respondent pay the Applicant's costs of these proceedings. 4. Such further or other order as the nature of the case may require. 25 On 7 December 2001 the Council filed a Notice of Motion seeking an order that the hearing of its class 4 application be expedited and claiming interlocutory relief. 26 On 11 December 2001 the Respondent's Solicitor lodged on behalf of the Respondent an application for a building certificate in respect of "the recently reconstructed retaining wall…." The letter contained the following comments in respect of the Council's recently commenced class 4 proceedings: We note that proceedings have been initiated in the Land and Environment Court of New South Wales and we advise that we will be seeking that the proceedings be adjourned until after the building certificate applications has been dealt with, and the Applicant's rights of appeal to the Land & Environment Court under Class 1 of its jurisdiction have been determined. In the event that Council is not disposed to promptly issue the building certificate applied for, the Applicant proposes that the stabilising works proposed by Douglas Partners be carried out as an interim measure in any event until the proceedings are resolved. Our client has no objection to the Class 4 proceedings being listed together with any Class 1 appeal necessary, however our client again repeats its position that those proceedings were commenced unnecessarily in view of the undertakings he had given. In the event that our client is unsuccessful in the proceedings our client is agreeable to carrying out appropriate reinstatement works (subject to agreement as to what those works should be in view of the removal and disposal of the old retaining wall). No court orders are necessary to that end. 27 By letter dated 12 December 2001 the Respondent's Solicitor advised as follows in respect of the Council's Motion seeking expedition and interlocutory relief -
We agree with your suggestion that the proceedings be expedited, but for reasons only that our client is unable to restore his property to a finished state until the dispute is resolved. Council has not produced evidence to suggest that there is any significant risk of harm to any person or property arising from any potential instability of the retaining wall which can easily be addressed by agreed works. Such works have been proposed by our client. In the event that our client's building certificate application is refused, we submit that the most appropriate location to review out client's works is through class 1 of the court's jurisdiction through an appeal against council's refusal. In view of our client's previous undertaking to reinstate the pre-existing form of the affected area of his property in the event that he is unsuccessful in the determination of that appeal, there does not appear to be any utility in a final determination of your client's class 4 application. However, whilst reserving his rights in that regard, our client does not oppose your client's class 4 application being listed with any necessary class 1 appeal. We propose that on Thursday's callover, the proceedings be adjourned to allow for council's processing and determination of our client's building certificate application, and that, in the event that it is refused, the foreshadowed appeal and your client's interlocutory Notice of Motion be listed for hearing concurrently for a determination of the final form the property is to take. 28 The Council's Solicitors responded by letter of the same date. That letter included the following advice: In the ordinary course, the council would be prepared to enter into consent orders in the Class 4 proceedings pursuant to which your client was ordered to remove the unauthorised works, with that order being suspended to allow the expedited appeal against refusal of the building certificate application to be determined. If your client succeeded, then the Class 4 order would be vacated (on its own terms). If unsuccessful, your client would be required to comply with the order. In this case, however, there is an issue which dictates another approach. The documents enclosed under cover of Mr Doyle's letter dated 11 December 2001 include information provided by Douglas Partners which confirms that the existing fill and boulder retaining wall is unstable and that a series of rectification works are required to stabilise the fill including, in effect, reconstruction of the boulder wall altogether (thereby confirming the Council's original concerns that the boulders are unstable in their current form). The consequence is that it is our opinion that it is not possible for the Council or the Court to grant a building certificate for a structure (leaving aside the fact that the fill is not a structure at all) in circumstances where the structure, in fact, does not currently exist - it is clear from the Douglas Partners report and page 4 of Mr Doyle's letter in order to stabilise the words carried out by your client what is required is a reconstructed wall . As such, we do not see how either the Council or the Court has power to direct that a building certificate be granted for the current works in circumstances where the applicant's own position now appears to be that those works cannot remain in their current form, are required to be removed in part, rebuilt and reconstructed in part, with additional new works. It seems to us, therefore, that the applicant cannot achieve its objective through a building certificate application; what would be required is either a development and construction certificate application for all of the new and reconstructed works (which will create a very complex relationship between the existing works which the applicant proposes to retain and the new works) or, at best, a consolidated hearing of both the Class 4 and the Class 1 appeals. It follows that, in our view, the Class 4 proceedings must be expedited and proceed. However, if your client wishes to have a Class 1 appeal heard with the Class 4 proceedings, the Council will facilitate that course by promptly determining the building certificate application and consenting to orders to that effect.
(ii) The Period from the commencement of the proceedings until the March 2002 consent orders 29 On 13 December 2001 the final hearing of the class 4 application was fixed for three days commencing on 11 March 2002. 30 The following day the Court made the consent orders granting interlocutory relief that is recited in paragraph 7 of these reasons. 31 On 8 January and 9 January 2002 the Council filed and served six affidavits (including the affidavits of two geotechnical engineers opining that the unlawful works were structurally unstable). 32 On 10 January 2002 the Council's Solicitors advised the Respondent's Solicitor in the following terms: 1. We are instructed that it is the objective of the Council to have all of the fill, boulders and associated unauthorised works removed from the site. 2. The Council is of the view that the building certificate application which has been lodged and, in particular, the report from Douglas Partners which accompanies that application makes it clear that prospective works are required (including removal and replacement of part of the boulder retaining wall) in order to stabilise the fill and wall. Accordingly, it is not possible for a building certificate to be granted for works which are prospective. In order to achieve approval for prospective works, a development application and a construction certificate application would be required. 3. The Council is not, however, inviting a development application or a construction certificate application to be lodged. As noted in paragraph 1 above, it is the objective of the Council to have the fill, boulders and unauthorised works removed. The removal works, most appropriately, would be carried out pursuant to consent orders entered into by your client and the Council in the class 4 proceedings, and would not require a development consent or a construction certificate. 4. If your client is willing to carry out reinstatement of the property (including the removal of all of the fill, the boulders and the associated works), then we invite you to provide details of your client's proposal to achieve reinstatement. We will then be in a position to obtain instructions from the Council in that regard. 33 On the same day the Respondent's Solicitor advised the Council's Solicitors as follows: We refer to our telephone conversation of today's date and reiterate our submission that the class 4 proceedings commenced by the Council currently pending before the court are of no utility and are unnecessary in view of our client's undertaking to carry out reinstatement works to the subject portion of the site in the event that he is unable to obtain development consent or a building certificate approval for his landscaping works (subject to his rights of appeal under class 1 of the court's jurisdiction). In those circumstances there are no issues in dispute which require litigation before the court in those proceedings and there has been no need for your client to incur any legal costs in that regard. Indeed, our client reserves his rights in relation to unnecessary legal costs being incurred by him in those proceedings. Our correspondence has also confirmed our client's willingness to lodge any application reasonably required by the Council to enable Council to consider both the works carried out on the site as well as any further measures required to regularise the affected area of the site. From a reading of the Affidavits filed by your client, we are optimistic that both the engineering and amenity issues can be resolved through discussion between the parties experts, and between our client and his neighbours. We note that your client has not yet determined our client's building certificate application. In that regard we refer you to section 149D(2), (3), and (5) of the Environmental Planning and Assessment Act 1979 which provide: (2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it . 34 This prompted the following reply from the Council's Solicitors: 1 The Council's objective is for the fill and the boulders to be removed and the site to be reinstated. The Council has received expert advice that these removal and reinstatement works can appropriately be carried out. Accordingly, it is not the objective of the Council to ensure the stability of the works currently on the site, nor is it the objective of the Council to settle a final form for landscaping . We do not believe that we can make our instructions any more clear than our previous correspondence - we are instructed that the objective of the Council is for all of the unauthorised works to be removed. …………….. The Council does not agree that the Class 4 proceedings serve no useful purpose. The Council does not classify the works which have been carried out as landscaping works and, through the Class 4 proceedings, has instructed us to seek orders to remove all of the unauthorised works. The Council would be willing to consider entering into consent orders with your client for all of the unauthorised works to be removed consistent with the Class 4 application. Insofar as we are aware, your client has never indicated, one way or another, whether he is willing to enter into consent orders to remove all of the unauthorised works. If your client is willing to do so, then the litigation is unnecessary. If your client is not willing to do so, then the Council can only achieve its objective through the Class 4 proceedings. In these circumstances, the Council instructs us that it will prosecute the Class 4 proceedings and will seek an order for costs. ………………. In these circumstances, we again invite your client to: 1 Identify whether he is willing to remove the unlawful fill and boulders, and the other ancillary unlawful works, as a matter of principle . 2 If your client provides this indication (which may be done on a without prejudice basis), then we anticipate that we will then receive instructions to enter into discussions, based on the advice which we receive from the Council's experts, in respect of the formulation of consent orders setting out: (a) a programme for removal of all of the unauthorised works; (b) milestones to be achieved in the removal and reinstatement works; and
(c) any additional works which need to be carried out in order to ensure the ongoing stability of the site of the property. 35 By facsimile dated 14 January 2002, the Respondent's Solicitor advised the Council's Solicitors as follows: You have asked whether our client will agree to removal of the boulders and retained sand. In answer, our instructions (which we have repeated to you on a number of occasions since before commencement of the proceedings) is that our client will carry out reinstatement works to Council's reasonable satisfaction which will include removal of the boulders in the event that he is unable to obtain Council approval (or approval from the Land & Environment Court under Class 1 of its jurisdiction on appeal). We refer you in particular to our client's without prejudice correspondence dated 13 November 2001 in that regard. You have advised that Council is still considering our client's building certificate application, but have informed us that it is Council's position that a development application will be required for the stabilisation works recommended by our client's engineer to be completed. We have advised that our client will lodge such an application. The building certificate application lodged with Council gives both detailed particulars of the works proposed to finalise the retaining wall structure, and a summary of the environmental effects of the structure if completed as there specified. We have advised that our client is willing to consider amending the plans lodged with the building certificate application in response to any issues identified by Council, but have submitted that it is good sense not to waste resources preparing any further plans until there has been an opportunity for Council to respond to the application it has received (as provided for under Section 149D of the Act). We have referred the Affidavits served by Council to our client and his engineers and are awaiting instructions as to whether any further measures can be adopted to address Council's concerns. 36 This prompted the following reply dated 15 January 2002 from the Council's Solicitors: As previously noted, if the building certificate application is refused, then we anticipate that the Council would instruct us to consent to an appeal against that refusal being heard together with the current Class 4 proceedings. By that method, the whole of the issues in dispute between the Council and your client can be resolved. In the event that the Court determines, consistent with the Council's position, the boulders and fill and ancillary unlawful works ought to be removed, appropriate orders can be formulated as part of the proceedings to ensure that these works are carried out in a timely manner and under the necessary geotechnical supervision. In respect of the stabilisation works which the Douglas Partners report identifies as critical, we confirm the Council's position that, in substance, what Douglas Partners recommend is new development, rather than the issue of a building certificate to retain development already in existence. Given that it is not the objective of the Council to authorise the boulders and fill to remain on the site (whether in the original or stabilised form), it is entirely a matter for your client whether it proposes to lodge a development application. Given that no such application has been lodged to date, we are unable to comment further. In respect of your comment that there is no sense in your client wasting resources until the Council has had an opportunity to respond to the application received, we confirm that while the Council has not yet formally determined the application, the Council will be taking into account the matters set out in the affidavits prepared by its consultants. Those affidavits raise a number of issues in respect of the geotechnical and planning impacts of the works. 37 By letter dated 22 January 2002 the Council notified the Respondent that it had refused to issue a building certificate for the reasons stated in the notice which included the following reason: 4 The retaining wall is considered unstable from a geotechnical perspective. 38 Subsequently, when asked by the Council's Solicitors whether the Respondent intended to file any affidavit evidence in the proceedings, the Respondent's Solicitor responded as follows: As we have stated on numerous occasions since before commencement of the Class 4 proceedings, our client does not resile from his undertaking to remove the works the subject of your client's application in the event that he is unable to obtain development consent or a building certificate for them. The Class 4 proceedings commenced by your client are therefore superfluous and the preparation of evidence in those proceedings is therefore unnecessary. Our client has no objections to repeating his undertaking formally to the Court if your client views this as necessary. 39 On 23 January 2002, the Council's Solicitors advised the Respondent's Solicitor that recent inspection of the property had revealed that the works required to be undertaken by the Court's consent orders granting interlocutory relief had not been undertaken in accordance with the Consent Orders and enquired whether the Respondent intended to approach the Court to vary those orders so that the design solution opted for by the Respondent was the approved design. 40 Thereafter, the Respondent's Solicitor submitted a report on the stability of the retaining wall "in an endeavour to resolve appropriate interim orders". 41 On 27 February 2002, the Respondent's Solicitor advised the Council's Solicitors as follows: Attached to this letter is a Notice of Motion proposed to be filed instanter at that time. Also attached is a draft Affidavit to be finalised tomorrow which in substance only attaches relevant correspondence exchanged between the parties. You will note that the Notice of Motion includes an application for the Court to note the undertaking of the Respondent substantially in the form made to your office prior to commencement of the proceedings. The provision of that undertaking in our submission renders the currently listed hearing unnecessary. For that reason, please advise as to whether the Council consents to the Orders sought in the Notice of Motion, and whether it consents to that Motion being heard on Friday. As there is less than 14 days remaining before the listed hearing dates the motion will need to be referred to the Duty Judge for the making of the Orders sought. We are happy to appear by consent for both parties if this assists. Also attached to this letter is a letter and sketch received from Colefax Consulting Engineers today by email (we will forward you a signed copy when it is received). Our client intends to lodge a Development Application for the works describe din Mr Colefax's letter as soon as possible, but remains open to any useful suggestions as to any measures to be incorporated into the works proposed. As has been the case since before commencement of these proceedings, our client is eager to resolve this matter through agreement and is willing to undertake any works necessary to remove reasonable amenity concerns. For that reason we again repeat our requests for a meeting of all concerned persons at any location nominated by you with the aim of settling an agreed schedule of works for the final form of the affected area of the site. We await your urgent response. 42 On 4 March 2002 the Court by consent varied the interlocutory consent orders in the terms recited in paragraph 8 of these reasons. 43 At the same time, the Court stood over to the hearing on 11 March 2002 the remainder of the Respondent's Notice of Motion which had sought the vacation of the allocated hearing dates and the notation of the Respondent's undertaking to reinstate the land if the development application lodged for the repair, replacement and partial removal of the retaining wall is refused by the Council. 44 Thereafter, the Respondent served and filed an affidavit by a Consulting Structural Engineer and on 5 March 2002 lodged with the Council a development application with the advice that the "proposal represents an attempt to address each of the structural and amenity issues identified by the Council in the affidavits filed in the Court proceedings….". 45 On 11 March 2002, the first day of the allocated hearing dates, the parties' legal representatives appeared to inform the Court that they were seeking to settle the case and sought an adjournment until 13 March 2002 on which date the Court made the consent orders.
(iii) The Period between the 2002 Court Orders and the 2004 Court Orders 46 On 29 November 2002, the Council notified the Respondent of its refusal of his development application for the reasons stated in the notification. 47 Following enquiry from the Council's Solicitors, the Respondent's Solicitor on 4 July 2002 advised that the Respondent did not intend to appeal the Council's refusal of the development application and would "accordingly be carrying out appropriate re-instatement works". 48 By letter dated 4 July 2002, the Respondent notified the Council of the reinstatement works that he proposed to undertake in order to comply with the Court's Orders made on 13 March 2002. 49 By letter dated 22 July 2002 the Council's Solicitors advised the Respondent's Solicitor that "much of the development proposed includes works which fall beyond that which the Court orders require". The letter continued: We note that all other works proposed by your letter dated 4 July 2002, those being for the construction of retaining walls, brush fencing, repairs to the existing pergola, re-instating fill/lawn and steps down to the eastern boundary, are not permitted until they are assessed by way of a development application submitted to Council. Pursuant to the Court Orders the only works permitted is the removal of the illegal fill so that the site is substantially in the same condition as it was immediately prior to the development. This removal of fill must only be done under the guidance of a geotechnical engineer because of the safety issues involved in relation to the property at No 72 Pittwater Road. We also hereby give notice to your client that Council will be issuing an Order to install a pool safety fence under the provisions of the Swimming Pools Act 1992 and Swimming Pools Regulations 1998. 50 By letter dated 13 December 2002 the Council's Solicitors advised the Respondent's Solicitor that they had been instructed "to move the Court for orders that your client is in contempt of Court, if within 28 days from 20 December 2002, the reinstatement works have not been carried out". 51 The Respondent's Solicitor responded by letter dated 23 January 2003, including the following advice: In your letter to us dated 22 July 2002 you stated that the schedule of proposed reinstatement works submitted by our client went beyond the works ordered by the Court on 13 March 2002. In particular, you submitted that the only work permitted pursuant to the Court order was the removal of fill under the guidance of a geotechnical engineer. We request that the Council specify which particular items under our client's proposed schedule of work are unacceptable and to provide reasons why they do not constitute reinstatement. In our view, the removal of fill in itself is not sufficient to comply with the Court order to reinstate the site of the development substantially to the condition it was in immediately prior to the development (refer to order 2 of the Court dated 13 March 2002). Reinstatement must involve replacement of the structure demolished as part of the works the subject of the proceedings. Our instructions are that a retaining wall is essential to securing our client's land. 52 Thereafter, correspondence ensued in which the parties' respective Solicitors attempted to settle the disputed question as to the precise nature of the reinstatement works that were required by the Court's Orders of 13 March 2002 to be undertaken. 53 This exchange of correspondence included the Council's Solicitors' letter dated 14 July 2003 to the Respondent's Solicitors written in contemplation of an on-site meeting between the parties and their technical advisers "to attempt to fully resolve all outstanding matters in these proceedings". The letter concluded with the following paragraph: In conclusion, the Council wishes to provide your client with a final opportunity to comply (at least in spirit) with the intention of the Court Order dated 13 March 2002. However, if we are unable to facilitate a satisfactory compromise, our client has instructed us to commence contempt proceedings in respect of the breach of the Court Order. We also note that the issue of costs was reserved in respect of the proceedings and if the Council is forced to bring the matter before the Court by way of contempt proceedings, we are instructed to seek costs in relation to the whole of the proceedings. 54 By letter dated 21 July 2003, the Respondent's Solicitor advised the Council's Solicitors as follows: We refer to our meeting with you on 16 July 2003 with our respective clients and consultants. Referring to the numbered paragraphs of your letter dated 14 July 2003 we confirm agreement at the meeting as follows: 1. the area to the south east of the swimming pool is to be landscaped and retained as shown in the attached diagram such that the fill adjacent to the swimming pool will be reduced in height to a level generally the same as the top concrete step on the adjoining property at No 9 Amelia Place; 2. the fill between the swimming pool and No. 9 Amelia Place will be reduced in height by 500mm; 3. no planter boxes are proposed at this stage; 4. see paragraph 1 above; 5. there was agreement that the south eastern corner of the property should be planted with low to medium shrubs to provide privacy along the fence line with 9 Amelia Place; 6. all damaged fences on neighbouring properties will be replaced on the rear common boundary; 7. it was agreed that the matter of the lower portion of the retaining wall adjoining 9 Amelia Place was not affected by the works the subject of the court proceedings, and could be resolved separately between the neighbours; 8. a pool safety fence will be located generally in the location of the fence which was removed as part of the landscaping works (as had always been our client's intention). As advised our client's engineer anticipates being able to provide a sketch by 30 July 2003 of the agreed works. Please confirm council's agreement to the above settlement in principle. 55 By letter dated 26 August 2003, the Respondent's Solicitor further advised as follows: We refer to our letter dated 21 July 2003. As we have had no reply, we presume that our record of the agreement made at the conciliation meeting set out in that letter is not disputed. On that basis, our client's engineer and landscape contractor have prepared the attached plans to record the agreed works: (a) drawing number BSOL-921 prepared by Tihanyi Consulting Engineers dated July 2003; and (b) Landscape Sketch Plan prepared by Living Colour Landscapes dated 17 August 2003. Once council confirms its' agreement to those plans as recording the agreed reinstatement works to satisfy the consent orders already made in the proceedings, we are instructed our client will complete those works. 56 By letter dated 4 September 2003, the Council's Solicitors called for the submission of amended plans to provide additional detail on some specified issues and to eliminate from the scope of the proposed works, works which were said to require separate development consent. 57 This letter was followed by a letter dated 28 October 2003 which stated inter alia: The Court Order dated 13 March 2002 required your client to undertake remediation works. We are instructed that those works have not been completed. Moreover, the Council considers that the amenity of Dr Wild's property (ie 9 Amelia Place) is being unreasonably compromised by your client's failure to complete the remediation works contemplated by the Court Order. Given that your client's breach of the Court Order dated 13 March 2002 constitutes a potential contempt of Court, we are instructed that if we have not been provided with the relevant documentation by 4 November 2003, we are instructed to file and serve a Notice of Motion for contempt. 58 By letter dated 27 November 2003, the Council's Solicitors notified the Respondent's Solicitor in the following terms: As noted in our facsimile to you dated 28 October 2003, the Council considers that this matter needs to be resolved one way or the other. In this regard, we still wish to pursue a compromise in the form contemplated by the without prejudice agreement of 16 July 2003. However, failing such a resolution, we are instructed to file and serve a Notice of Motion for contempt. If this course is ultimately taken, we put you on notice that the Council will also make an application for costs in respect of the whole of the proceedings. 59 Following the passage of further correspondence the Council's Solicitors by letter dated 16 December 2003 notified the Respondent's Solicitor as follows: If we have not received a satisfactory response to the proposed meeting, and details of the author of the landscape plan, by 4.00pm, 19 December 2003, we will assume that your client is no longer interested in resolving these proceedings. In those circumstances, we are instructed to file and serve a Notice of Motion for contempt. If this course is taken, we put you on notice that the Council will also make an application for costs in respect of the whole of the proceedings. 60 On 18 February 2004 the Respondent's Solicitor submitted to the Council's Solicitor further amended plans in respect of the reinstatement works. 61 However, the ongoing process of negotiations came to an abrupt end when on 31 March 2004 the Council's Solicitors wrote to the Respondent's Solicitor as follows: We refer to the above proceedings and the Court Order dated 13 March 2002 (the Court orders ). Court Orders In essence, the Court Orders deal with two distinct matters. Firstly, your client was required to undertake Interim Stability Measures to stabilise the boulder retaining wall on the southern boundary of the Property and the retaining wall on the eastern boundary of the Property. We note our instructions that the Interim Stability Measures were carried out by your client. Secondly, in the event that Development Application No. N180/02 was refused ( Development Application ), your client was required to undertake Reinstatement Works. We are instructed that the Council refused the Development Application on 6 June 2002. Mechanism for determining the scope of the Reinstatement Works In circumstances where the Development Application was refused, the Court Orders provided that your client was to provide to the Council particulars of the proposed Reinstatement Works. On 4 July 2002 , the Council received a letter from your client providing particulars of proposed Reinstatement Works. On 22 July 2002 , we wrote to you in relation to the adequacy of the proposed Reinstatement Works (as proposed by your client in his letter of 4 July 2002). In our letter we clearly outlined that the only works proposed to be undertaken by your client which were permitted by the Court Orders was the removal of the fill and retaining structures. Further, the Court Orders provided that once the Reinstatement Works had been approved by the Council, your client was to complete the approved Reinstatement Works within 60 days. Accordingly, the Council approved Reinstatement Works should have been completed within 60 days of 22 July 2002. Reinstatement Works other than those approved by the Council Any proposed works contemplated in your client's letter of 4 July 2002, other than the Council approved Reinstatement Works, are beyond the terms of the Court Orders. Whilst we are instructed that the Council accepts that the Court Orders may not require your client to reinstate the Property in situ, the Court Orders clearly do not empower your client to undertake landscaping works which are unrelated to the Reinstatement Works required by the Court Orders and that would otherwise require the prior consent of the Council. We are instructed that the works proposed by your client in his letter of 4 July 2002 (other than the removal of the fill and retaining structures) relate to landscaping works aimed at achieving greater amenity for your client. We are further instructed that those works will detrimentally effect the amenity of your client's neighbours at 9 Amelia Place. In our view, no reasonable interpretation of the Court Orders could lead to a conclusion that the Court Orders were to facilitate your client to undertake further landscaping works (or retain unauthorised works) aimed at achieving greater amenity for him to the detriment of his neighbours. Re-listing of matter As you are aware, the parties have been engaged in without prejudice discussions since March 2003 in an effort to resolve these matters. In our view, the discussions have been unsuccessful and we are now instructed to have the matter re-listed before His Honour Bignold J, and to seek directions that the parties' experts confer in accordance with the Court's Expert Witness Practice Direction 2003. In this regard, we are currently preparing a Notice of Motion and affidavit which we intend to file and serve within the next two (2) days. Further, we are instructed to seek an order that your client pay the Council's costs in relation to the whole of the proceedings. 62 The Respondent's Solicitors responded by letter dated 2 April 2004 in the following terms: We refer to your letter of 31 March 2004 which comes as some surprise to our client. The works to be carried out to our client's property were settled by way of the mediated agreement made on site on 16 July 2003 (as documented by our letter dated 21 July 2003). Plans detailing those works were provided on 26 August 2003. The fact that the levels were agreed at the 16 July 2003 meeting is confirmed in the letter from Mr Ambrosis of GHD Longmac of 24 November 2003. Furthermore, a file note taken by Ms Urquhart of our office of her telephone conversation with you of 14 January 2004, records that when she asked you why Council never replied to the summary of the mediated agreement in our 16 July 2003 letter, you answered with words to the effect that the reason that you did not reply was that you essentially agreed with what (was) in the fax . Additional detail requested by the Council's experts has been provided (most recently by way of the amended plans dated 18 February 2003). Our client is also frustrated by the ongoing delay in resolving this matter, particularly as he has expended significant time and money in preparing the plans now with Council reliance on the agreement reached. Your 31 March 2004 letter refers to adverse amenity impacts on 9 Amelia Street but does not particularise them. Rather than return the matter to Court please particularise: (a) what the alleged adverse impacts are; (b) how your client submits the 18 February 2004 plans differ from the mediated agreement of the 16 July 2003 meeting; and (c) what changes to the 18 February 2004 plans the Council submits are required. In circumstances where our respective clients' experts are communicating well, there is no identified issue in dispute, and the Council has not identified any matter of concern, we cannot see the utility in returning the matter to Court with the resulting expense. If Council does return the matter to Court without identifying the issues in concern and the orders it will be seeking, then we will tender this letter on the issue of our client's costs. 63 This prompted the following reply from the Council's Solicitors dated 5 April 2004: The matters to which you refer relate to without prejudice negotiations that have been taking place between the parties since March 2003. We do not intend to provide you with further details of our client's position as we do not consider that there is any ambiguity as to what was agreed between the parties. As we have already indicated to you, our client considers the without prejudice negotiations to be at an end. However, if your client is willing to: 1 provide the Applicant with the material it has been seeking since July 2003; and
2 agree to an order that he pay the Applicant's costs, we will seek our client's instructions as to whether it may agree to resolve the matter by way of consent orders and, therefore, minimise any additional costs. 64 By letter dated 5 April 2004, the Respondent's Solicitor replied as follows: We refer to your facsimile received this morning which again is confusing to our client in that Council appears very eager to return this matter to Court in circumstances where all material matters have been agreed. You advise that Council is awaiting outstanding documentation, but to the contrary detailed plans have been provided via your office documenting the agreement reached at the conclusion of the without prejudice meeting on site on 16 July 2003. It is Council's response to that documentation that is outstanding for over 6 weeks. Our client considers Council bound by the agreement reached at the 16 July meeting. While the negotiations that lead towards that agreement may be without prejudice, the agreement made is not. Again we invite Council to particularise any remaining concern in relation to the plans provided. Our client will seek an order to recover any wasted costs if Council files a motion without giving our client notice of the orders it will be seeking so that we may respond to them. As you are aware, since the first letter received from Council in this matter our client has at all times advised Council that he is willing to carry out appropriate works to address Council's concerns, but even now Council has not given a clear indication as to what it submits those works are. In the circumstances of your recent correspondence, if no adequate reply is forthcoming to the material sent to Council on 19 February 2004, our instructions are to file a motion seeking orders that the proceedings be re-listed before Bignold J for orders to the effect that works described in that material will satisfy the order for reinstatement so as to bring the matter to a close. 65 On 8 April 2004 the Council filed a Notice of Motion seeking the following orders: 1 That the parties' experts confer in accordance with the Court's Expert Standard Practice Direction No. 22 to determine the necessary scope of the Reinstatement Works. 2 That the matter be re-listed before His Honour Bignold J pursuant to Order 6 of the Orders made by the Court on 13 March 2002. 3 That the Respondent pay the Applicant's costs. 4 Such further or other order as the nature of the case requires. 66 On 12 May 2004 the Court made consent orders (in the terms earlier recited in paragraph 11 of these reasons).
(iv) The period from the 2004 Consent Orders to the filing of the Council's costs Motion on 28 April 2005 67 On 17 August 2004 the Council's Solicitors notified the Council's consent to a variation in the timetable provided for the undertaking of the requisite reinstatement works by 22 September 2004. 68 By letter dated 27 September 2004 the Council notified the Respondent that it considered that the reinstatement works were not being carried out in accordance with the Court's consent orders. 69 Further correspondence passed between the parties' respective Solicitors concerning the Council's claim that the requisite works were not being undertaken in accordance with the Court's orders culminating in the letter dated 18 March 2005 from the Council's Solicitors noting the Council's view that the works undertaken by the Respondent were not in accordance with the Council's orders but advising that if the Respondent agreed to provide and properly maintain appropriate screen planting in respect of the adjoining property (No 9 Amelia Place) the Council would not require the removal of the unauthorised works. The letter suggested that the Court orders be appropriately amended in that respect. 70 By letter dated 22 March 2005 the Respondent's Solicitor denied that the Respondent had not complied with the Court's orders and asserted that the Court orders did not need to be amended. 71 By letter dated 23 March 2005 the Council's Solicitors responded as follows: We are instructed that our client disagrees that the Consent Orders should not be amended to incorporate the provision and maintenance of appropriate screen planting in the area of concern. Further, we advise that we are instructed to lodge a Cost Application in relation to the entire proceedings and it is our intention that both these matters can be dealt with concurrently by the Court. We will provide you with a Notice of Motion for Costs and supporting affidavit shortly. 72 On 22 April 2005 the Council filed its Notice of Motion seeking an order that the Respondent pay the Council's costs in the proceedings . No other relief (as had been contemplated) was sought. 73 The Notice of Motion was supported by an affidavit by Michael Causer, Solicitor sworn 20 April 2005 which annexes documents forming part of the relevant history in the litigation following the making of the Court's Orders on 13 March 2002. C. THE ADJUDICATION ON THE DISPUTED COSTS QUESTION 74 Having regard to the litigation history, it is apparent that the Council was the successful party in the litigation by obtaining the interlocutory relief granted on 14 December 2001 and the final relief granted on 13 March 2002. The 2004 Orders did not change the litigation results reflected in the Court's earlier orders. Rather, the 2004 orders more effectively defined the precise nature of the required reinstatement works. 75 According to the results obtained in the litigation, the Council as the successful party has a presumptive entitlement to the "usual order as to costs" that is made in class 4 proceedings by way of civil enforcement. 76 However, as I have earlier outlined, the Respondent's opposition to the making of the usual costs order is based upon the following discrete grounds - (i) that in truth the Council was not the successful party; (ii) the proceedings were commenced unnecessarily and prosecuted unreasonably; and (iii) the Council is estopped by its representations made in the course of the litigation from claiming costs. 77 In my judgment, there is no substance in the Respondent's claim that the Council was not in truth the successful party. A comparison between the relief claimed and the relief granted both on an interlocutory and a final basis entirely puts paid to the Respondent's argument. 78 In support of his claim that the proceedings were unnecessarily commenced by the Council and were unreasonably prosecuted by the Council after the making of the final orders on 13 March 2002, the Respondent relies upon the exposition of the "usual order as to costs" contained in the following passage from the judgment of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97/98:
The expression the usual order as to costs embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [ Latoudis (1990) 170 CLR 534 at 543, per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ.] . If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.
The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [[1951] 1 All ER 873 at 874.] , Devlin J formulated the relevant principle as follows: No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct Misconduct in this context means misconduct relating to the litigation [ King & Co v Gillard & Co [1905] 2 Ch 7; Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 812.] , or the circumstances leading up to the litigation [ Bostock v Ramsey Urban District Council [1900] 2 QB 616] . Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the (1998) 193 CLR 72 at 98 litigation [ Jones v McKie [1964] 1 WLR 960; [1964] 2 All ER 842; Bostock [1900] 2 QB 616 at 622, 625, 627] ; unnecessarily protracts the proceedings [ Forbes v Samuel [1913] 3 KB 706] ; succeeds on a point not argued before a lower court [ Armstrong v Boulton [1990] VR 215 at 223] ; prosecutes the matter solely for the purpose of increasing the costs recoverable [ Hobbs v Marlowe [1978] AC 16] ; or obtains relief which the unsuccessful party had already offered in settlement of the dispute [ Jenkins v Hope [1896] 1 Ch 278.] . 79 Were the proceedings unnecessary? The detailed correspondence passing between the parties and their respective Solicitors prior to the commencement of the proceedings and up to the Court making the final orders on 13 March 2002 has been collected in my survey of the litigation history. What clearly emerges from that correspondence is that the Respondent had undertaken works on his property without obtaining the requisite development consent from the Council and in response to Council's threatened enforcement action had indicated that he would seek to obtain ex post facto legitimisation of those works and in the event of failure to obtain that result, that he would undertake to remove the unlawful works. However, the Council did not accept this scenario principally for the reason that it believed that the unlawful works were structurally unstable and posed a real risk to two adjoining properties. 80 It was because of its perceived urgency of the need to eliminate the risk of structural instability that the Council immediately sought and obtained interlocutory relief and having obtained that relief pressed on for urgent final relief (having obtained expert geotechnical engineering advice confirming the existence of the aforesaid risks posed by the unlawful works undertaken on the Respondent's property). 81 In my judgment, the facts of the case entirely justified the Council's insistence that the appropriate form of relief was that to be obtained in the proceedings that the Council had brought against the Respondent. This is so, notwithstanding the long standing practice in this Court enabling in an appropriate case a respondent in pending civil enforcement proceedings to seek to obtain ex post facto outstanding development consent in the course of those proceedings and before any adjudication is required in those proceedings. 82 That practice however is neither automatic nor invariable and in a situation such as that evidenced by the facts of the present case, where urgent relief was seen to be necessary in the interests of public health and safety, the Court does not generally adjourn or stay the civil enforcement proceedings pending the outcome of any legitimate attempt to obtain ex post facto the outstanding development consent. 83 For those reasons, I am of the opinion that it was not unreasonable for the Council in the circumstances of this case to institute the present proceedings and to press for urgent interlocutory relief and expedited final relief, such as were obtained by the granting of the December 2001 and March 2002 consent orders, notwithstanding the Respondent's offer of a personal undertaking to the Council. 84 Accordingly, the Respondent has not substantiated his claim that the proceedings were unnecessary - either in being commenced or being prosecuted to the obtaining of the March 2002 final orders. 85 However, I have reached a different conclusion in respect of what happened in the proceedings after the granting of the March 2002 final orders. 86 In respect of this period in the litigation history, my survey has revealed a far less clear-cut course of dealings between the parties' respective solicitors. Rather, it reveals a certain amount of confusion, delay, indecision and an overall sense of unreasonable or unnecessary conduct (at least from a costs viewpoint). 87 This is not to deny the obvious need for there to be found between the parties some means of clarifying and defining the precise nature of the required reinstatement works. However, the protracted and inconclusive process embarked upon (involving the incurring of expense that could readily have been avoided by more efficient and decisive action) I have concluded, was both unnecessary and unreasonable to a very significant extent. In so concluding, I do not for a moment suggest that fault lay only at the feet of the Council. However, the whole question of the proper elucidation of the precise content of the required reinstatement works should have been far more readily, speedily and economically achieved. 88 Nor, in so concluding, have I overlooked the fact that it was the Respondent who was bound by the March 2002 final orders to undertake the requisite reinstatement works. However, in terms, those orders contemplated an important involvement of the Council in the elucidation of the requisite works and the Council did not efficiently or effectively undertake or complete that task. 89 Moreover, since the parties had collectively consented to the March 2002 final orders, any detailed outworking of those orders, as was ultimately reflected in the 2004 Orders, must I think be fairly considered to be the joint responsibility of the consenting parties. Where the circumstances of the making of the 2004 consent orders did not involve any adjudication or any finding adverse to one or the other or both parties it appears to me to be only fair and reasonable for the parties to have to bear their own costs in that protracted process for the elucidation of the precise content of the reinstatement works required to be undertaken by the March 2002 final orders. 90 In any event there is nothing in the documentary evidence (or otherwise) which enables me to conclude that that process was legitimately required because of the default by only one of the parties. 91 Having regard to the fact that the parties had reached a negotiated agreement in July 2003 and to the fact that the 2004 consent orders did not materially change the substance of that negotiated agreement, I am of the opinion that the costs incurred in this third (and most protracted) period in the litigation history should fairly be regarded as being unnecessarily and unreasonably incurred in the proceedings, and should on that account, be excluded from any costs order that might otherwise be justified in respect of the proceedings up to the making of the final orders in March 2002. 92 What I have just said applies with greater force in respect of the fourth period identified in the litigation history since that period produced a totally inconclusive result (save for the emergence of the Council's Motion seeking costs). 93 Accordingly, for all of the foregoing reasons, I have concluded that the proceedings were not unnecessarily commenced or prosecuted up to the obtaining of the March 2002 final orders, but that thereafter, the proceedings were either unnecessarily or unreasonably prosecuted by the Council in the sense that I have earlier explained, so as to justify the exclusion from any costs order that might be made in favour of the Council, on the basis of its success in the litigation, any costs incurred after the obtaining of the March 2002 final orders. 94 This brings me finally to adjudicate upon the Respondent's claim that the Council is estopped from claiming costs in the proceedings (including the costs of the proceedings up to the making of the March 2002 final orders). 95 The only basis for the alleged estoppel are the representations contained in two of the 2003 letters written by the Council's Solicitors. The first relevant letter dated 14 July 2003 is extracted at par 53 of this reasons and the second relevant letter dated 16 December 2003 is extracted at par 59 of these reasons. 96 It is apparent from the terms of these two letters that there is no express representation that the Council would forego or abandon any claim it might make against the Respondent in respect of the question of costs that had been expressly reserved by the March 2002 final orders. Rather, the Respondent seeks to distil an implied representation to the effect that unless the Council files a Contempt Motion against the Respondent it will not seek a costs order against the Respondent. 97 In my opinion , it is not legitimate to imply such a representation from the Council's Solicitors' two letters. Significantly, Counsel for the Respondent did not attempt to formulate the implied representation cf Auburn Council v F N Eckold Pty Ltd (1974) 34 LGRA 101 at 110. 98 But even if such a representation could be so implied, the Respondent has not established that he relevantly relied upon that representation to his detriment. Whereas it is clear that after receipt of those two letters the Respondent continued to negotiate with the Council's Solicitors, the more probable reason for the Respondent's continuing conduct was to avoid a threatened Contempt Motion being brought against him and to attempt to reach agreement with the Council on the precise content of the reinstatement obligation imposed upon the Respondent by the March 2002 final orders. There is nothing in the evidence to suggest that the Respondent so conducted himself in order to avoid the Council having cause to claim costs against him pursuant to the reserved question of costs. 99 Moreover, as Counsel for the Council pointed out in her argument, it is improbable that the Respondent relied upon any such representation said to found the relevant estoppel against the Council in view of the fact that the 2004 consent orders (like the 2002 consent orders) expressly reserved the question of costs. 100 For all the foregoing reasons, I am of the opinion that no relevant estoppel has been substantiated by the Respondent such as to preclude the Council from claiming its costs in the proceedings. D. CONCLUSIONS AND ORDERS 101 For all of the foregoing reasons, I am of the opinion that the Council is entitled to its costs in the proceedings up to the date (13 March 2002) upon which the Court initially made its final orders. However, no costs order is justified in respect of the proceedings thereafter. Since each party has enjoyed partial success on the hearing of the Council's Costs Motion, there should be no order for costs in respect of that Motion. These conclusions reflect my exercise of the broad costs discretion conferred by the Land and Environment Court Act 1979, s 69. 102 Accordingly, I make the following costs orders -
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.
Pittwater Council
Varney
(1998) 193 CLR 72
(1990) 170 CLR 534
(1994) 179 CLR 403