7 For the purposes of the costs argument the council has conceded that as at the date of the development consent the land was not capable of being connected to the Sydney Water sewerage system. The applicant moves the court for an order that the respondent council pay his costs of the proceedings on the basis that, first, if the proceedings had been the subject of a hearing he would have been successful relying on the matters that I have just referred to in relation to the sewerage. Alternatively relying on Pt 15 r 7 of the court's rules as a consequence of the council's so-called capitulation in entering into consent orders following a process of negotiation and the grant of a further consent and the surrender of the subject consent, it entered into the consent orders.
8 The argument put by Ms Duggan, who appears for the applicant, is that consistent with the Wednesbury principle the council acted unreasonably in granting the consent in circumstances where the premises were incapable of connection to the Sydney Water network. In so arguing Ms Duggan reminds the court that in judicial review proceedings it is appropriate only to focus on the decision itself and not on the consequences.
9 The applicant also relies upon the fact that the holder of the consent commenced to act on the consent and that at that time, as the consent was incapable of being performed, he was entitled to challenge the consent on the basis I have just mentioned that no reasonable council properly advised would have granted the consent in circumstances where the land was not capable of connection to Sydney Water. Although the catalyst for the action taken by the applicant was the fact that the consent holder commenced work, what was attacked in the proceedings was the actual consent. As Ms Duggan put it, the consent was the root of the evil. It was the applicant's case that by merely looking at the consent itself (that includes the incorporated documents) there can be no defence to the complaint that the consent could not be acted on in the context of the concession made by council. I understand that there was mediation that involved the third party consent holder. All I know about that mediation, of course, is that it failed. A second development application was lodged by the other person and took an independent course. The second development consent has been granted. I do not need to go to it (although I was taken to it), except to note that in many respects it bears a number of similarities to the original consent, but recognises that there is a prospect specifically that effluent disposal may be required by other than connection to Sydney Water. The original development consent was surrendered thereby taking away any cause of action in these proceedings.
10 That is enough of the facts. I raised with Ms Duggan during submissions the question as to whether the consent has to be considered in the context of the instant that it is granted and the capacity to connect the land to Sydney Water at that time. Alternatively whether the court is entitled to, if it was necessary to do so, have regard to the prospect that the consent would continue to operate for a period of time in accordance with the provision of the Act and that at some time in the future it may have been possible to comply with the consent.
11 I am not entirely satisfied that it is so clear on the record that the consent was at all times incapable of being acted upon. The court does not know and the court does not need to know, for the purposes of determining this costs application, what the prospects may have been for Sydney Water to provide a connection over the period of the years during which the consent continued to operate. There was certainly an issue that needed to be argued in that respect.
12 Moreover, Mr Pickles who acts for the council sought to demonstrate that the consent could be construed on the basis that there was not a strict requirement to connect the premises to the Sydney Water system. The argument in that respect to an extent has been rebutted in an anticipatory way by Ms Duggan who dealt with that issue in reply. I accept that the question of construing the consent itself as to whether or not there was an obligation to connect to the Sydney Water system is a matter that is not necessarily unarguable. I consider the prospects in respect of the second point to be less emphatic than the prospect in relation to the first point.
13 But it does not matter, I am not charged with determining who would have won and who would have been unsuccessful on balance, and then making a costs order accordingly. Both parties, not surprisingly, rely upon the judgment of the High Court in Re Minister for Immigration and Ethnic Affairs, Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 in particular the judgment of Justice McHugh at 625. I think it is appropriate to quote what his Honour says there at about point three of the page:-
"Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried."
14 Now, in this case I do not have the benefit of points of claim and defence but I do have the benefit of the way in which the argument would have progressed and the basis upon which Ms Duggan effectively says she could shut the gate on the council. It must be apparent from what I have said already that I am not convinced that either Ms Duggan's argument or Mr Pickles' argument in reply to it are so clear cut that the outcome was effectively inevitable, or to use the words of Justice McHugh, "almost certain to have succeeded". That is not the case.
15 That then leads me to refer to the secondary argument which relies on Pt 15 r 7 of the court's rules:-
The Court may order the respondent to pay the costs of the proceedings where a respondent satisfies or causes to be satisfied the claim of the applicant after the proceedings have been commenced.