Polden Mark v Wollongong City Council

CASES CITED: Grant v Kiama Municipal Council [2006] NSWLEC 70 ; Re Minister for Immigration and Ethnic Affairs, Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622

APPLICANT Ms Duggan (Barrister) SOLICITORS LEGAL REPRESENTATIVES: Pike Pike and Fenwick RESPONDENT Mr Pickles (Barrister) SOLICITORS Kells The Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 Talbot J: These proceedings were commenced by Class 4 application. The relief sought by the applicant was a declaration that a development consent granted on 3 October 2006 is void and of no force and effect. The only further relief was an order that the respondent be restrained from issuing a construction certificate pursuant to the development consent. The only respondent at all times was Wollongong City Council. The person who was the holder of the development consent, the subject of the application, was not joined in the proceedings.

2 Insofar as the question of costs is concerned the issue relied upon in regard to the validity of the consent is an issue relating to the prospect of connection to the Sydney Water sewerage system. The matter has been resolved by the dismissal of the proceedings following a further application for consent by the holder of the original consent. In the process of obtaining an alternative consent, the consent, the subject of the proceedings, has been surrendered. 3 Following orders made by consent by Jagot J on 25 May 2007 whereby the application was dismissed except as to costs the applicant is now seeking an order for its costs. 4 The development application was supported by a statement of environmental effects which indicated that sewer was available as one of the services to the land. It was indicated that sewerage disposal would be by means of sewer as an alternative to septic tank pump-out. The reasons for indicating those particulars will become apparent.

5 The development application was also supported by a geotechnical engineer's report. Inter alia that report published constraints which were described as general guidelines for development. In the course of that section of the geotechnical engineer's report the following paragraph appeared:- "All household liquid waste shall be connected to the Sydney Water sewerage network. No septic absorption/transpiration systems are permissible without further geotechnical investigation." 6 That reference is also important as will become apparent when I turn to the actual terms of the notice of determination of development application issued by the council in October 2006. Condition 1 relevantly provided that the development is to be carried out in accordance with the plans and documentation listed in that condition and endorsed with council's stamp except where amended by other conditions of the consent. A not unusual provision. Then followed a list. The list contained the statement of environmental effects from which I have just quoted. In addition, the list included a reference to the geotechnical report from which I have also just quoted. Moreover, condition 2A provided:- "All work is to be in accordance with the geotechnical recommendations contained in the report dated 3 May 06 by PRA Consulting and any subsequent geotechnical report required to address unanticipated conditions encountered during construction."

One of the plans incorporated by the condition and submitted in support of the development application was a site plan. The legend to that site plan contained site details including a statement as follows, "Sewer drains installed as per Sydney Water requirements."

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.

16 The applicant in that respect puts an argument to the effect that the council engaged with the holder of the development consent in a way that fits the description in the rule of causing the claim of the applicant to be satisfied after the proceedings have been commenced. Now there is no question that the council did take steps and the evidence shows that there was a process undertaken by the council whereby it sought to bring the real parties together. When I say the real parties, the parties other than the statutory authority, the neighbours, one of whom was attempting to restrain the other from taking advantage of a development consent that they had obtained. For whatever real reason I do not know and do not need to know, except for the legal niceties. The council engaged those people in a mediation process which failed, but ultimately by means best known to the parties, the consent holder was persuaded to re-apply and obtain a consent which was in sufficiently different terms to at least clarify the issue about connection to Sydney Water. The original consent was surrendered.

17 The fact that that occurred, of course, is not a persuasive element in relation to the first issue upon which Ms Duggan relied, which is a general common law rule as articulated by the High Court, but rather goes to the question of whether the council should be held accountable for the applicant's costs on the basis that the applicant was seeking relief of a particular kind and that relief was effectively satisfied when the consent was surrendered. In a way that is true, but firstly there is an issue about whether or not the council caused the holder of the consent to do what it did. It certainly participated in a process and encouraged, settlement but it was not an action of the council such as, for example, cancelling the consent. I do not suggest that is a matter open to the Council. I use it as an example of what might have occurred in the context of a respondent causing a claim to be satisfied. 18 I regard what the council did as a co-operative gesture in an attempt to resolve the difficulties that had arisen as a consequence of the challenge by the applicant. It had the result of overcoming the need for the litigation but not necessarily on the basis that the consent itself was found to be invalid. I am not therefore satisfied that this is a case, on its facts, where the court should order the respondent council to pay the costs of the proceedings by the application of Pt 15 r 7. 19 Now there is plethora of authority in this court about various nuances in relation to costs of which the decision by the present Chief Judge in Grant v Kiama Municipal Council [2006] NSWLEC 70 is but one. They are all cases effectively, (except with a few exceptions,) that turn on their own facts. This again is a case where, in relation to the first issue, I am not able to say that the applicant's case was so categorically iron clad or certain to succeed that a costs order against the other party in the circumstances of consent orders for the proceedings to be dismissed should be made. 20 For the reasons that I have just articulated I am not satisfied that the facts bring the respondent council within the ambit of Pt 15 r 7. However, if I be wrong about the application of Pt 15 r 7 in the circumstances, I would not have exercised the overall discretion which remains with the court and order the respondent to pay the costs. I would not have exercised the discretion in favour of the applicant in the circumstances of this case. 21 I therefore dismiss the application for an order for costs. I accept the submission by the council that each party should be ordered to pay their own costs in relation to the proceedings. Is there anything further Mr Pickles?

PICKLES: The only thing outstanding is the costs of today and the council would seek its costs today.

DUGGAN: Your Honour, I would merely ask that each party pay their own costs of the motion. I have no further submissions to make. 22 Talbot J: The motion today moved orally is a separate and distinct part of the proceedings. It raises issues in its own right and I think the general principle is in relation to an application for costs that the order for costs should follow the event except in circumstances where there are particular matters that would persuade the court to do otherwise. In this case the applicant came to the court seeking an order for costs. The council came to the court to oppose the making of that order and argue that the order should be that each party pay their own costs. In those circumstances the council has been wholly successful even though it might have appeared that Mr Pickles was not as successful in one of his arguments that he might have been. Nevertheless his only obligation in relation to this argument is to raise the issue and show that it was sufficiently arguable to overcome the submission by the applicant about the degree of certainty of the applicant's prospects of success. Accordingly in the circumstances it is appropriate that the applicant should pay the respondent's costs of today. The exhibits may be returned.

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