Potter v Woollahra Municipal Council (No 2)

JUDGMENT

1. On 7 August 2025, I delivered judgment (Potter v Woollahra Municipal Council [2025] NSWLEC 80 (Judgment)) in relation to a motion brought by the Applicant for a review of a decision of the Registrar, made on 4 July 2025 (the Review Motion).

2. In her decision of 4 July 2025, the Registrar, on the motion of the Respondent (the Council), had relevantly made the following orders:

“2. The Respondent is granted leave to rely on the expert town planning evidence of Simon Smith.

3. The Respondent’s leave to rely on the expert town planning evidence of Stephen McMahon is withdrawn.

4. The Respondent is granted leave to rely on the expert arboricultural evidence of Peter Castor.

5. The Respondent’s leave to rely on the expert arboricultural and landscaping evidence of Craig Kenworthy is withdrawn.”

3. In the Judgment, I varied the orders made by the Registrar by setting aside the orders set out above. In summary, I did so because I was of the view that granting leave to the Council to rely on Mr Smith and Mr Castor in lieu of Mr McMahon and Mr Kenworthy would in the circumstances tend to subvert the objects and purposes of Division 2 of Part 31 of the Uniform Civil Procedure Rules 2005 (UCPR), the Expert Witness Code of Conduct (Expert Code), and part of this Court’s relevant practice note: see Judgment at [41]. I also felt that, with respect, the Registrar had erred in making the orders she did for the reasons set out at [43]-[44] of the Judgment.

4. I reserved costs of the Review Motion, and ordered the parties to file written submissions. Both parties have now provided me with their submissions as to costs. The Applicant seeks an order that the Council pay the costs of the Review Motion. The Council contends that each party should bear their own costs. For the reasons that follow, I agree with the Council.

Rules and principles

5. As these are Class 1 proceedings, r 3.7 of the Land and Environment Court Rules 2007 (LEC Rules) applies, which relevantly is in the following terms:

3.7 Costs in certain proceedings

(1) This rule applies to the following proceedings (except for appeals under section 56A of the Act)—

(a) all proceedings in Class 1 of the Court’s jurisdiction…

(2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following—

(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question—

(i) in one way was, or was potentially, determinative of the proceedings, and

(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,

(b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents—

(i) that are required by law to be provided in relation to any application the subject of the proceedings, or

(ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application,

(c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,

(d) that a party has acted unreasonably in the conduct of the proceedings,

(e) that a party has commenced or defended the proceedings for an improper purpose,

(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where—

(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

6. In determining whether a costs order should be made in a Class 1 Appeal, “[t]he starting point must be the presumptive rule that there will be no order as to costs”: Port Stephens Council v Sansom [2007] NSWCA 299 (‘Sansom’) at [48] per Spigelman CJ. The evaluative process for considering whether it is “fair and reasonable” to make a costs order confers a wide discretion that is to be “exercised judicially and consistently, so that the result does not depend on idiosyncratic views”: Sansom at [52] per Spigelman CJ.

7. The circumstances outlined in r 3.7(3)(a) to (f) are examples of where the presumptive rule might not apply, but are not exhaustive.

Resolution

8. The Applicant in her written submissions at [5] seems to suggest that an order of costs should be made in her favour by reason of r 3.7(3)(a). While the Review Motion did involve a question of law, part (i) of r 3.7(3)(a) is not satisfied. The Review Motion could not be said to be determinative or potentially determinative of the Class 1 Appeal.

9. Further, the Council’s conduct in seeking to rely on Mr Smith and Mr Castor in lieu of Mr McMahon and Mr Kenworthy in the circumstances described below, is not conduct that in my view persuades me that the presumptive rule is displaced, and that it is “fair and reasonable” to order the Council to pay the Applicant’s costs of the Review Motion.

10. The reason the Council sought to substitute experts was that while Mr McMahon and Mr Kenworthy were generally supportive of the refusal of the Applicant’s development application (DA) by the Woollahra Local Planning Panel (WLPP), it transpired that they could not support every reason for refusal of the WLPP. By reason of s 8.15(4) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the Council is under the direction and control of the WLPP in this Appeal. As Ms Hewitt stated in her affidavit of 1 July 2025, the WLPP directed the Council that it wanted the Applicant’s Class 1 Appeal opposed based on all of its reasons for refusal of the DA.

11. While the fact that the Council is under the direction and control of the WLPP in this Class 1 Appeal is by no means decisive, I have had regard to the fact that whilst Mr McMahon and Mr Kenworthy were named as the Council’s relevant planning and landscaping experts in orders made by the Court on 30 May 2025, this occurred before a site view had taken place. Further, the Council’s motion before the Registrar was heard prior to any expert evidence being served in the proceedings, prior to any joint conferencing, and prior to the s 34AA conference.

12. In the circumstances, while I did not agree with the orders made by the Registrar for the reasons set out in the Judgment, I do not consider the Council’s conduct in seeking to have its first nominated experts substituted to be conduct of the kind that in this particular instance warrants a departure from the usual rule set out in r 3.7(2). The fact that the Council was the unsuccessful party in the Review Motion is also not of itself a reason for departing from the presumptive rule concerning costs in a Class 1 Appeal.

13. The order that should be made then is that each party pay their own costs of the Review Motion.

Order

1. Each party is to pay their own costs in relation to the Applicant’s notice of motion filed on 21 July 2025 and heard on 31 July 2025.

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