Prefabricated Buildings Pty Ltd v Bathurst Regional Council

Land and Environment Court (NSW)|2017-06-27|Before: Robson J

Solicitors: Horton Rhodes (Applicant) Crennan Legal Pty Ltd (Respondent) File Number(s): 2016/00259688

Background

The principal issue in the substantive proceedings was whether Council had the power under the Act to levy annual water availability and sewerage access charges ('Availability Charges') against Lot 2 DP 270264, 369 Stewart Street, Mitchell 2795 ('Premises'), which is owned by Prefabricated.
Prefabricated's position was that Council could only charge for water and sewerage services according to the actual use of the service, and that Council had no power to make the Availability Charges, which were imposed independently of actual use. Prefabricated's argument was that s 502 of the Act does not confer a separate power to charge for services, but rather qualifies how the general power to charge for services under s 501 of the Act is to be interpreted.
Council's position on the other hand was that s 501 and s 502 of the Act are discrete sources of power, and s 501 of the Act permits it to make an annual charge for services. Council submitted that there is no express limitation on this power, nor should the Court infer such a limitation.
For the reasons set out in Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44, I dismissed the appeal and found that Council is entitled under the Act to charge for certain services based on both actual use and availability.
Council accordingly seeks the costs of the proceedings pursuant to s 98 of the Civil Procedure Act 2005 (NSW) ('Procedure Act') and Pt 3, r 3.7 of the Land and Environment Court Rules 2007 (NSW) ('Court Rules'), which provide respectively: 98 Courts powers as to costs (cf Act No 52 1970, section 76; SCR Part 52A, rules 5, 6, 7 and 8; Act No 9 1973, section 148B; Act No 11 1970, section 34) (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. ... 3.7 Costs in certain proceedings (cf Land and Environment Court Rules 1996, Part 16, rule 4) (1) This rule applies to the following proceedings (except for appeals under section 56A of the Act): ... (c) the following proceedings in Class 3 of the Court's jurisdiction: ... (iv) appeals and applications under section 526 (including section 526 as applied by section 531) or 574 of the Local Government Act 1993, ... (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, ... (d) that a party has acted unreasonably in the conduct of the proceedings; ...

Council's submissions

Council notes that r 3.7 of the Court Rules makes specific provisions for costs in certain proceedings, including applications under s 574 of the Act, and provides that the Court should not make an order as to costs unless doing so is "fair and reasonable in the circumstances".
Council relies on Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 ('Dunford v Gosford City Council') for the key principles relating to the award of costs in this Court, where Sheahan J noted at [30]: a. Rule 3.7(2) creates a basic rule where there is a presumption against the making of an order for costs [Port Stephens Council v Sansom ("Sansom") [2007] NSWCA 299; (2007) 156 LGERA 125 at [48]]. b. The effect of the basic rule in r 3.7(2) is that, in the ordinary course, costs will lie where they fall [Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34 at [5] per Biscoe J]. c. The question then is whether, despite the basic rule, it is "fair and reasonable" that a party should be reimbursed for the costs it incurred [Sansom at [50]]. d. The formulation -"fair and reasonable" - calls for a judgment to be made, rather than as a discretion to be exercised, but in any event the evaluative process can be accurately described as conferring a wide discretion [Sansom at [51]]. e. Rule 3.7(3) identifies, without limitation, some circumstances in which the Court might consider the making of a costs order to be fair and reasonable [Pet Carriers International Pty Ltd v Botany Bay [City] Council (No. 2) [2013] NSWLEC 150 at [4] per Preston CJ]. f. The circumstances identified in r 3.7(3) may rebut the presumption in r3.7(2) and may inform the Court's discretion but are neither prescriptive nor exhaustive [Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196; 160 LGERA 164 at [73] per Biscoe J; Hillsong Church Limited v Council of the City of Sydney (No. 2) [2012] NSWLEC 118 at [55] per Pepper J].
Council further relies on Ekermawi v Bennett (No 2) [2010] NSWLEC 40, where Preston CJ referred to a number of authorities regarding circumstances in which it may be fair and reasonable for the Court to make an order for costs.
Council submits that the proceedings involved a pure question of law focusing on construction of the Act, and therefore fall within the circumstances identified in r 3.7(3)(a). Council further submits that after Prefabricated filed a Notice of Motion for determination of a separate question, Council wrote to the director of Prefabricated, Raymond Carter, on 10 October 2016 confirming that the only question for determination in the proceedings was the construction of ss 501 and 502 of the Act. Council submits that this letter also stated Council's position on the construction point, being that Prefabricated's construction of ss 501 and 502 of the Act was incorrect, and foreshadowed that a costs application would be made.
In further support of its submission that the proceedings involved a pure question of law, Council noted that the Further Amended Application and the Amended Statement of Facts and Contentions, both dated 16 November 2016 and filed 18 November 2016, each effectively articulated that the construction of ss 501 and 502 of the Act was the sole question for determination.
In addition to the proceedings involving a pure question of law, Council also submits that prior to 16 November 2016, Prefabricated acted unreasonably in the conduct of the proceedings for the purposes of r 3.7(d) of the Court Rules by: 1. commencing proceedings in the name of Raymond Carter, who was not the recipient of the relevant rates notices the subject of the appeal; 2. making claims and/or seeking relief that was ultimately abandoned; 3. amending the Application and Statement of Facts and Contentions, with consequential wasted costs; 4. filing and serving significant lengthy material, which was ultimately unnecessary; and 5. making a failed application for the separate determination of a question.

Prefabricated's submissions

As a starting point Prefabricated submits that pursuant to s 98 of the Procedure Act, costs remains at the discretion of the Court. While r 3.7(3) of the Court Rules sets out a number of circumstances in which costs may be awarded, Prefabricated submits that there is no entitlement to costs, and even if one of the circumstances identified in r 3.7(3) arises, the Court is not compelled to award costs.
In any case, Prefabricated submits that the two bases upon which Council claims its award of costs should be dismissed, with costs.
First, in relation to Council's submission that an order for costs is appropriate given the proceedings involved a question of law, Prefabricated submits, relying on Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15] ('Grant'), that there are many instances where such circumstances arise, but a costs order is not appropriate. Prefabricated further submits that many of the cases in which costs were awarded relying on this ground involved Class 1 proceedings in which a preliminary question of law was identified, and the Court held that this changed the character of the proceedings from merits review to judicial review. Prefabricated submits that this approach has been rejected by the Court of Appeal in Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125 at [47], [67]-[77] ('Sansom') - and, rather, the better approach is to consider each statutory regime separately.
Prefabricated submits that it is not fair and reasonable to award costs against it as, relying on Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2014] NSWCA 429 at [22]-[23] ('Peregrine Mineral Sands'), there is a public interest in the proper exercise of Council's rate-making power. Prefabricated submits that Mr Carter made numerous attempts to raise his concerns with Council regarding the validity of the Availability Charges and did not receive a response, and that in the circumstances, the only way to challenge rates and charges in a rates notice is under s 574 of the Act. Further, Prefabricated submits that the proceedings raised a novel question of law and was of broader importance to the ratepayers of Bathurst Regional Council.
Second, in relation to Council's submission that Prefabricated acted unreasonably up until 16 November 2016, Prefabricated submits that contrary to Council's submission, Council did not communicate to Prefabricated that it considered Prefabricated's approach to the construction of the Act to be incorrect, but rather Council failed to respond to numerous letters sent to it by Mr Carter. Further, Prefabricated submits that while Mr Carter may have commenced proceedings in his own right rather than in Prefabricated's name, this was the mistake of a litigant in person, and does not amount to "unreasonable conduct" for the purposes of the Court Rules.

Council's reply submissions

In reply, Council submits that the fact that the only way to challenge a rating notice is by commencing merit review proceedings does not put Prefabricated in a special category that avoids the consequences of the action. Council also submits that care should be taken in applying Sansom, as this was decided before the introduction of the present r 3.7(3) of the Court Rules, and relevantly did not apply the non-discouragement principle in deciding what is fair and reasonable.
Council disputes that the proceedings raised a novel question of law or were in the public interest. While Council accepts that Mr Carter raised his concerns in correspondence over the years, Council submits that the case made at the hearing involved purely statutory construction, and this question was not clearly articulated at any time in the correspondence. Further, Council submits that the fact that Mr Carter is a lay person does not excuse unreasonable conduct, particularly given that he was the principal of a commercial operation and a not insignificant landowner. Importantly, Council submits that the concept of unreasonable conduct should be understood in the manner articulated by Preston CJ of LEC in Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council [2013] NSWLEC 86; (2013) 211 LGERA 337 at [36] and [99], and considered in that context, Prefabricated's conduct should be seen as unreasonable.

Consideration

I accept that the outline of the key principles in Dunford v Gosford City Council at [30] is an appropriate summary of the applicable law.
I am conscious that the starting point is the presumptive rule that there be no order for costs in Class 3 proceedings. As stated in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 at [10] per Biscoe J: One of the purposes of the costs follow the event rule in ordinary civil litigation is to encourage the parties to settle their disputes: Sansom at [26]; Thaina at [65]. In contrast, a no discouragement principle underlies the no costs rule in planning appeals, that is, that persons generally should not be discouraged from exercising their rights of appeal via the prospect of an adverse costs order: Sansom at [22]-[23]. This may be rationalised on the bases that a significant purpose of planning appeals is to improve the decision-making process and that those involved are not adversaries in the same sense as adversaries in conventional civil litigation. Spigelman CJ explained this in Sansom at [71]-[74]: ... [72] In my opinion, a significant purpose served by planning appeals is to improve the quality of the decision-making process. This is a purpose which any statutory consent authority should be presumed to be anxious to achieve as an incident of its exercise of the statutory powers which Parliament has reposed in it. Individuals and corporations who challenge such decisions do not have the same obligations. They do, however, have a legitimate expectation that the decision-making process will result in the correct or preferable decision. [73] One of the critical differences between ordinary civil litigation and planning appeals is the absence of a reciprocal relationship between the interests of the parties. They are not, or should not be, adversaries in the sense that can be said of the usual kind of civil litigation in courts. ...
Despite this presumptive rule, which is now encapsulated in r 3.7(2) of the Court Rules, r 3.7(3) of the Court Rules sets out certain circumstances in which the Court may find that it is "fair and reasonable" to award costs in Class 3 proceedings. The circumstances provided in r 3.7(3) are similar to the indicative guidelines formulated under the earlier rule (Part 16 Rule 4 of the Land and Environment Court Rules 1996 (NSW)) in Grant at [15] and approved by the Court of Appeal in Sansom at [56]. I note and adopt Sheahan J's comments in Dunford v Gosford City Council at [30] that these circumstances are neither prescriptive nor exhaustive.
Council raises two grounds upon which it contends that costs should be awarded - that being that the proceedings involved a pure question of law, and because Prefabricated acted unreasonably. I will deal with each of these in turn, commencing with the latter.

Unreasonableness

Council submits that Prefabricated's conduct prior to 16 November 2016 in relation to five separate aspects (noted at [14] above) is demonstrative of unreasonable conduct in the requisite sense.
I do not accept that Prefabricated acted unreasonably prior to 16 November 2016 for the purposes of r 3.7(3)(d) of the Court Rules. My reasons may be shortly stated.
First, I take into account the fact that Mr Carter was unrepresented when he commenced proceedings, and find that his commencing proceedings in his own right rather than in the name of Prefabricated is reflective of a "mistake", rather than unreasonableness.
Second, while the claim may have evolved over the course of the proceedings, I do not consider that this amounts to unreasonable conduct. Rather I consider this to be part of the refinement of the central issue in the proceedings. It is not unusual for parties to amend their Applications and Statements of Facts and Contentions - in fact it is a costs savings that this happen at a preliminary stage rather than proceeding to hearing on grounds which are no longer actively pursued. There are clear case management procedures put in place to manage the evolution of a claim in the lead up to a hearing, and accordingly, the mere development of a claim, without more, cannot in itself be indicative of unreasonableness. The fact that lengthy material may have been prepared and not utilised is not in my view unreasonable conduct. Nor is a failed application for a determination of a separate question.

Pure question of law

In the circumstances, it is clear that the hearing on 27 February 2017 involved a pure question of law which was confined to statutory construction of the Act and was determinative of the proceedings, therefore falling plainly within the circumstances identified in r 3.7(3)(a) of the Court Rules.
I note that Mr Carter's affidavit sworn 7 June 2017 attests to the content of correspondence with Council over a number of years in relation to the "legality of Rates and Charges Notices levied against the property the subject of these proceedings and other properties within the Bathurst Regional Council Local Government Area from 2004". Mr Carter also deposes that he made various submissions to Council during the period from 2011 to 2017 with emphasis upon the legality of the Availability Charges, and noted that he has been "concerned with the legality of the Sewer Availability Charge and Water Availability Charge since their inception in 2004".
The Class 3 Application initiating the proceedings included both factual and legal grounds, with Prefabricated challenging the Rates Notice on the basis that the Premises was not subject to the charges, as well as seeking orders that the Availability Charges be declared to be in breach of s 502 of the Act and contrary to law. The factual grounds of the application were later abandoned, as illustrated in the Amended Statement of Facts and Contentions, and the sole issue in the proceedings then became the legal question of whether Council had the power to make the Availability Charges.
The fact that the proceedings in fact centred around a question of law was foreshadowed in Mr Carter's (unsuccessful) attempt in September 2016 to have the matter be dealt with as a separate question for determination. I note also the letter dated 10 October 2016 from Council to Prefabricated (annexed to the affidavit of Paul Crennan dated 10 May 2017) confirming that the sole issue for determination was the interpretation of s 501 and s 502 of the Act, noting that Council disagreed with Prefabricated's interpretation of those provisions, and foreshadowing a costs application should Council be successful in the proceedings.
Prefabricated submits and it is true that not all Class 3 proceedings involving a question of law give rise to a costs order. In order to determine whether a costs order is warranted in these proceedings, it is useful to consider why, where proceedings that otherwise do not attract costs involve a pure question of law that is determinative, costs may be awarded against the unsuccessful party.
As Prefabricated submits, there was a line of jurisprudence stating that the reason for the award of costs where a preliminary question of law had arisen was because the proceedings then ceased to have the character of merits review and had taken the character of adversary litigation, where costs normally follow the event. This approach was considered, and on one view rejected, by the Court of Appeal in Sansom. The following comments of Spigelman CJ in Sansom bear some consideration although, as Council submits, I note that Sansom was decided before the introduction of the current r 3.7 of the Court Rules: [67] ...I do not find it helpful to approach the interpretation of the statutory power by characterising the proceedings as more or less like litigation in a court and to proceed by way of analogy. Although many, perhaps most of proceedings in classes 1, 2 and 3 of the Court's jurisdiction answer the description of merits review, they are not all equivalent in this respect.... ... [69] The application of r 4 must be determined in the context of the scope and purpose of the legislative scheme under consideration. Simply because r 4 is expressed to apply to a number of different statutes, which are classified in a certain way under the L&E Court Act, it does not follow that the relevant principles will necessarily apply in the same way to all of them. Each statutory regime must be considered separately in this respect. For present purposes the focus of attention is the Environment Planning and Assessment Act 1979 ("the EPA Act"). ... [71] There is, in my opinion, a clear analogy with the role of a consent authority under the EPA Act. An appeal from a consent authority is similarly "an element of the management" of the scheme of the EPA Act by that authority. To treat such a review as equivalent to a lis between adversarial parties is, in most cases, a considerable oversimplification. In particular, it does not give weight to the public interest regulatory responsibilities of the consent authority, which should itself be anxious to ensure that it has made the correct decision. In such a context, characterisation of the proceedings either as "merits review" or as equivalent to adversarial litigation does not appear to me to be a particularly useful approach to the formulation of the judgment for which r 4(2) provides.
Having dispelled the notion that it is simply the character of litigation that renders proceedings liable for costs, Spigelman CJ went on to say: [75] This issue now falls to be determined in the context of the broadly based judgment to be made as to what is "fair and reasonable" in the particular circumstances. It is wrong, and in my view inconsistent with principle, to impose upon that judgment any kind of presumption or to identify a matter, however expressed, which is determinative of what is "fair and reasonable" or which, in every circumstance, is entitled to presumptive weight. [76] In my opinion, it is not permissible to proceed to determine the "fair and reasonable" issue on the basis of the application of a non-discouragement principle. That would constitute an unreasonable fetter on the discretion. Similarly, it is not permissible to characterise an issue of capacity or permissibility as not constituting merits review and to give that consideration presumptive, let alone determinative, weight when formulating the judgment for which the rule now provides.
Bearing these comments in mind, I am conscious that my task is not to consider whether the proceedings before me were analogous to adversarial litigation. Rather, the question is whether, as a matter of evaluative judgment, I consider it fair and reasonable in the circumstances to displace the presumptive rule and award costs in the proceedings. In doing so, I take into account and place weight, as indeed I am directed to do by r 3.7(3)(a), on the fact that the proceedings did in fact involve, as a central issue, a question of law which was determinative of the proceedings.
There are a number of cases in which the Court has held that it is fair and reasonable to make an order for costs where proceedings involve only questions of law. Ekermawi v Bennett (No 2) [2010] NSWLEC 40 is an example where Preston CJ of LEC refers to a number of earlier decisions (including Grant at [15]; Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 at [199], [200], [208], [244], [249], [252]; Sansom at [88], [95]). In Grant at [15], Preston CJ also considered a survey of cases which "reveals a variety of circumstances where courts have considered that it would be fair and reasonable to make an order for costs".
Similarly, there are a number of cases also set out in Grant at [15] where the central issue in the proceedings was a question of law, but no costs order was made, see Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727; (2005) 149 LGERA 460 at [15]-[19].
Relevantly, it cannot be that the fact that proceedings centre around a question of law binds the Court's hands in determining whether costs should be awarded. Rather, pursuant to the Court Rules, this is one of the circumstances in which the Court "... might consider the making of a costs order to be fair and reasonable..." (emphasis added). Ultimately, it is a matter for the Court, engaging in an evaluative process and exercising its discretion, to determine whether the circumstances justify the grant of an order for costs; see Sansom at [51].
I am conscious of the careful submissions made by Mr White on behalf of Prefabricated that the context of the statutory scheme of the particular Act the subject of these proceedings is such that the only means of challenging the rating position of Council is by commencing proceedings under s 574 of the Act.
I also accept, as further submitted on behalf of Prefabricated that, as put by McColl JA in Peregrine Mineral Sands at [22]-[23], there is a "public interest in the proper exercise of the rate-making power" and "the mandatory requirements of the rate-making exercise demonstrate the importance of that function to a council's discharge of its duties." I further note that a not insignificant purpose served by appeals against rating decisions is to improve the quality of the decision-making process, and, more relevantly, the public interest in such appeals is "...readily comprehensible as the exercise of the rate-making power affects every owner or rateable land in the council's area"; Peregrine Mineral Sands at [22].
While ultimately unsuccessful, Prefabricated's case was not without merit, carefully argued, and raised a complex question of law that could, if determined in its favour, have had widespread implications for the rate-making abilities of councils across New South Wales. That the proceedings centred around this complex legal question concerning the scope of Council's rate-making power is in fact, somewhat to Prefabricated's detriment, the very thing that brings these proceedings within the purview of r 3.7(3)(a) of the Court Rules.
However, as is well accepted, the purpose of awarding costs is not to punish the unsuccessful party, but to compensate the successful party; see Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543, per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at 96-97.
Accordingly, while I am satisfied under r 3.7(3)(a) that it is fair and reasonable in the circumstances to award costs in favour of Council, given my reasoning above, and taking into account r 3.7(2), I find that it would not be fair and reasonable to award costs in respect of the entire proceedings. Rather, I consider the more appropriate course, given the background of these proceedings and the progress of this matter, is to award Council its costs from 18 November 2016, that being the date on which the Further Amended Application and Amended Statement of Facts and Contentions were filed. While the proceedings were initially commenced on both factual and legal grounds, from 18 November 2016 a number of the factual contentions were abandoned and it became abundantly clear that the sole issue in the proceedings was a legal question regarding the interpretation of the Act. This brought the proceedings squarely within the circumstances of r 3.7(3)(a), and I am satisfied from this point onwards, particularly given that the costs application was foreshadowed, that Prefabricated assumed the risk of costs and it is fair and reasonable in the circumstances for an order to be made. In effect, this encompasses the costs of the substantive hearing on 27 June 2016, as well as the costs of this Motion.

ORDERS

The Court orders that: 1. The applicant, Prefabricated Buildings Pty Ltd, is to pay the costs of the respondent, Bathurst Regional Council, on and from 18 November 2016.

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. Decision last updated: 30 August 2017

Land and Environment Court Rules 1996(NSW)

(2008) 158 LGERA 224

(2005) 149 LGERA 460

(2013) 211 LGERA 337

(2007) 156 LGERA 125

(2006) 149 LGERA 360

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