Shah Friends Pty Ltd v Cumberland Council

Land and Environment Court (NSW)|2023-06-09|Before: Moore J

TABLE OF CONTENTS Introduction The costs' determination in my principal decision The Summons initiating the Company's appeal The Company's costs submissions The Council's costs submissions The Company's "reply" costs submissions Consideration Order

Introduction

On 5 April 2023, I handed down a decision (Shah Friends Pty Ltd v Cumberland Council [2023] NSWLEC 31 ‑ my principal decision) upholding an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) against the dismissal of an appeal by Shah Friends Pty Ltd (the Company) against a Cease Use Order which been issued by Cumberland Council (the Council) directed at the Company's operations at 187 Parramatta Road, Auburn.
Familiarity with the detail of my principal decision is assumed (including the bases upon which the appeal was upheld; the grounds of appeal pleaded in the Company's Summons commencing the appeal and which were subsequently abandoned at the appeal hearing; and the terms of the grounds of appeal rejected by me).

The costs' determination in my principal decision

At [113] to [117] of my principal decision, I explained why I had concluded that there should be no order for costs of the appeal proceedings, with a view that each party bear its own costs of the appeal. The relevant portion of my principal decision was in the following terms: 113 For appeals pursuant to s 56A of the Court Act, costs ordinarily follow the event. However, s 98(1) of the Civil Procedure Act, earlier set out, permits me to "otherwise order" if circumstances are appropriate so to do. I am satisfied that it is, here, appropriate to make a different costs order for the reasons which follow. 114 As the Company has been successful in this appeal on a basis not fully or adequately argued before the Commissioner, and in circumstances where the course of the hearing before me involved, in a fashion divorced not only from the hearing before the Commissioner but also in a fashion which differed to some considerable extent from that which might reasonably have been expected by the Council in its preparation for this hearing (including that leave was given for Ground 1A to be argued ‑ unsuccessfully ‑ before me although it was not advanced before the Commissioner), I am satisfied that the appropriate costs order to be made is that there be no order for costs of this appeal, with a view to each party bearing their own costs of this appeal. 115 However, given that the question of costs was not argued before me, it is appropriate that I provide the parties (particularly the Company) the opportunity to consider whether some alternative costs order would be sought in the proceedings. To this end, my orders provide that there be no order for costs of these proceedings unless my Associate is advised, within 14 days of my making of the orders disposing of these proceedings, that an alternative costs order is sought. If my Associate is so advised, the question of whether or not such alternative costs order should be made will be addressed on the basis of short written submissions to be provided to me, without further oral argument. 116 Any submission on behalf of the initiating party seeking an alternative costs order is to provide written submissions of not more than four pages in A4 size, 12‑point Arial font at 1.5‑line‑spacing within two weeks of notifying my Associate, and the other party, of the alternative costs order sought. The other party is then to provide my Associate, and the initiating party, with any submissions in reply (those submissions to be confined to the format and length applying to the initiating party seeking that different costs order). These submissions are to be provided within two weeks of the receipt of the submissions seeking the different costs order. Finally, the initiating party seeking the different costs order may file and serve submissions in reply within a further two weeks. Any such reply submissions are to be subject to the same format requirements but limited to a maximum length of two A4 pages. 117 As I had advised the parties that I would be on leave until toward the end of May 2023, my decision on any alternative costs order, if one is sought, will be dealt with upon my consideration of the written submissions after my return from leave.
The relevant paragraphs in the orders in my principal decision were: (3) There is to be no order for costs with a view to each party bearing their own costs of this appeal unless a party notifies my Associate within 14 days of the date of these orders that that party seeks a different order as to costs; (4) If my Associate is advised that an alternative costs order is sought, the initiating party seeking the alternative costs order is to provide written submissions, of not more than four pages in A4 size, 12‑point Arial font at 1.5‑line‑spacing, within two weeks of that party's notification to my Associate and the other party of the alternative costs order sought and the basis for it. The other party is then to provide my Associate and the initiating party with any submissions in reply (those submissions to be confined to the format and length applying to the initiating party seeking the different costs order). These response submissions are to be provided within two weeks of the receipt of the submissions seeking the different costs order. Finally, the initiating party seeking the different costs order may file and serve submissions in reply within a further two weeks with such reply submissions being subject to the same format requirements earlier set out but limited to a maximum length of two A4 pages. The question of whether any different costs order, if sought, will be made will be dealt with on the papers;
As can be seen, I provided the opportunity for either party to seek an alternative costs' outcome to the position which I had determined was otherwise appropriate to be ordered.
On 3 May 2023, Ms Pearman provided written submissions seeking that I should order that the Council pay the Company's costs of the s 56A appeal in lieu of my conclusion that there should be no costs order in the Company's favour. It will be appropriate, later, to reproduce the terms of the Company's costs submissions (and its "reply" costs submissions) in full. On 17 May 2023, I granted Ms N Hammond, counsel for the Council, a short extension of time within which to file the Council's response to the Company's costs' proposal.
As a consequence of the granting by me of the two‑day extension within which the Respondent was to provide the submissions (submissions in the terms set out above), it was appropriate for me to regard the deadline within which the Company should file and serve any reply to those submissions from the Council was appropriate to be regarded as being extended until close of business on Friday 2 June 2023, rather than what would have been the otherwise applicable requirement for their provision by the close of business on 31 May 2023.

The Summons initiating the Company's appeal

It is, at this point, appropriate to set out the entirety of the terms of the Summons filed for the Company initiating its s 56A appeal. The terms of the Summons were: DETAILS OF APPEAL 1 The plaintiff appeals from the part of the decision below in relation to Order 2. ORDERS SOUGHT 1 The appeal pursuant to s 56A of the Land and Environment Court Act 1979 be allowed. 2 Order number 2 of the court below be set aside. 3 The development control order issued by Cumberland Council on 22 December 2021 pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) in terms of a stop use order, Order Number 1 in the table to Part 1 of Schedule 5 of the Act, is declared void and revoked. 4 The Respondent in relation to this Summons is to pay the Appellant's costs of this appeal. APPEAL GROUNDS 1 The Commissioner erred on a decision on a question of law by failing to properly construe and apply the terms of the 1979 development consent to the immunity for the use of the Premises to which the appellant was and is entitled to under section 4.70 of the Environmental Planning and Assessment Act 1979 (NSW). PARTICULARS a. The finding at [77] that "In granting the 1979 development consent, the use authorised by the consent is consistent with the description of the proposed development found in the development application, which is "metal manufacturing, foundry, general engineering and metal pressing"" is erroneously inconsistent with the finding in that same paragraph that "I consider that the purpose of that use is a foundry." b. The finding at [77] that "I consider that the purpose of [the use authorised by the 1979 development consent] is a foundry." erroneously fails to apply the test at [75] that the purpose is "identified as the end for which the premises were being used"" by failing to find that the end for which the premises were being used was for the sale of ferrous and non‑ferrous metal or for ends including those ends. c. The erroneous finding that at [82] the current activities on the Premises are not authorised by the 1979 development consent. d. The erroneous finding that at [84] "it matters not that some of the activities approved by the 1979 development consent overlap with the current activities on the Premises". e. The erroneous finding at [84] that "[w]hat is relevant is that the purpose of the use approved by the 1979 development consent is not the purpose of the use currently undertaken on the Premises." f. The erroneous finding at [84] that "the current activities on the Premises are not authorised by the 1979 development consent, as they are not for the purpose of the use authorised by that consent" g. The erroneous finding at [84] that "[t]he current activities are ... carried out without development consent." h. The erroneous finding at [86] that "[t]he current use of the Premises is ... for the purpose of a waste or resource transfer station." i. The erroneous finding at [86] that "the purpose of a waste or resource transfer station ... is a use that is permissible on the site, but only with development consent. ..". j. The erroneous finding at [86] that "[a]s the Premises does not benefit from development consent for use as a waste or resource transfer station, Shah is carrying out a use for which development consent is required and has not been obtained." k. The erroneous finding that at [87] that "[t]he statutory requirements for the issue of a stop use order are met." I. The erroneous finding that at [88] that it is implicit that because "[the appellant] is presently using the Premises for the purpose of scrap metal receipt, processing and transfer, which falls within the definition of a waste or resource transfer station under the CLEP" that purpose therefore "requires planning approval in the form of a development consent" and "[a]ccordingly, a stop use order can be issued to stop that use from continuing." m. The erroneous failure to apply the proper tests to characterise the purpose of the use of land. 2 The Commissioner erred on a question of law by ignoring evidence critical to issues in the case and contrary to assertions of fact made by the Respondent and accepted by the Commissioner. PARTICULARS a. The failure to take into account the expert evidence that "On inspection of the site at 10.30am on Monday 18/07/2022, it was apparent that this is an extremely noise locality where there are multiple sources of noise, such as a Parramatta Road to the south, the Western Motorway to the north and then various other industrial uses around the site such as a metal related use on the site (Copper) and a large car repairer on Stubbs Street. Stubbs Street also leads to an overpass over the Western Motorway that is well used by trucks.." (at Joint Report at [52]). b. The failure to take into account the expert evidence that "PB and SM agree the subject premises also has no residential neighbours, and the nearest residential dwellings are on Parramatta Road approximately ?Orn from the site's Stubbs Street boundary across Parramatta Road." (at Joint Report at [53]). c. The failure to take into account the expert evidence that "SM considers noise generation as an ancillary contention as the Order specifies 'unauthorised use' which is the primary matter. However, SM does acknowledge that the noise generation of this operator does contribute to the overall noise of the locality ‑ whilst also noting the proximity of similar noise generating uses as identified by PB above. SM experienced the noise levels on site over two visits during mid‑week operations where noise from deliveries, forklifts, manual sorting into metal 'skip' bins and stripping of copper/metal pipes were occurring both within the building and within the Associated carpark." d. The failure to take into account the expert opinion that "[t]he veracity of the compliant was not tested to determine the extent of the noise impact and whether or not that noise emanated from the premises or posed a life threatening hazard or a threat to public health or public safety." (at Appellant's Written Submissions at [13]). e. The failure to take into account the approved plans show that the approval includes movements of commercial vehicles and activities Associated with weighing metal and the transfer of metal both in indoors and outdoor areas of the Premises. 3 Further and in the alternative to Ground 2, the Commissioner erred on a question of law by failing to apply the Briginshaw standard of proof in relation to the findings about the acoustic impacts of the Premises. 4 The Commissioner erred on a question of law by failing to exercise a discretion to revoke the development control because upon the facts the result of Order 2 is unreasonable or plainly unjust. 5 In the alternative to Ground 4, the Commissioner erred on a question of law by failing to exercise a discretion to extend the timeframe for compliance with the development control order to a date no earlier than 6 months after the material date because upon the facts the result of Order 2 is unreasonable or plainly unjust.
In a process described in my principal decision, only a limited element of Ground 1 was pursued on appeal; leave was granted (without opposition from the Council) permitting the Company to rely on a new Ground 1A and recording that Ground 2, 3 and 4 pleaded in the initiating Summons were abandoned.
It is unnecessary for me to undertake any detailed analysis of the abandoned grounds. It is sufficient to note that many matters particularised complain of findings of fact made by the Commissioner, findings of fact which were not amenable to appeal pursuant to s 56A of the Court Act (such appeals being confined to ones on questions of law).
It is also sufficient, for present purposes, to note that the elements of the appeal actually pursued during the appeal hearing, and upon which the Company failed, were ones that did expressly challenge matters determined by the Commissioner in her decision.

The Company's costs submissions

The written submissions on costs filed for the Company were succinct. It is appropriate to reproduce them in full: Background 1. On 5 April 2023 the Court made findings in Shah Friends Pty Limited v Cumberland Council [2023] NSWLEC 31 (Judgment) upholding the appeal, and at [113]‑[114] preliminary findings on costs with the opportunity for the parties to make costs submissions in writing. 2. Notwithstanding the Applicant's success on the appeal, the Court's preliminary finding on costs is that it is appropriate to make a different costs order from the usual order that costs follow the event, UCPR 42.1 ‑ the event being success on the appeal. 3. The reasons given at [114] are twofold ‑ (i) that the Applicant has been successful on a basis not fully or adequately argued before the Commissioner and (ii) costs of the hearing in respect of Ground 1A which was unsuccessfully argued before the Court and was not advanced before the Commissioner. 4. While costs are in the discretion of the court, 98(1) of the Civil Procedure Act, it is axiomatic that the discretion is to be exercised judicially. 5. The appeal succeeded because the Court upheld the second element of Ground 1 being the material with which the Company was dealing was not waste. This finding meant there was no lawful basis for a Stop Use Order to be issued with the result the Court did not remit the matter, upheld the appeal and set aside the modified Stop Use Order. First reason 6. Given the reasons for a different costs order, the first issue is whether the question of material with which the Applicant was dealing was not waste, was fully or adequately argued before the Commissioner. 7. With respect, the successful basis of appeal was advanced before the Commissioner. This is evident from the following. 8. The Applicant's Supplementary Written Submissions (ASWS) on waste, extracted at Judgment [88] noted that the Applicant in both written and oral closing submissions squarely addressed the substance of the question of whether the materials purchased by the Applicant were waste (in his hands) or valuable goods to it for which it paid its suppliers. The substance of that submission was understood by the Commissioner as recorded at ASWS [25], Judgment [88]. The directed submissions were necessarily succinct and did not include in terms every reference to the issue being before the Commissioner. Beyond the ASWS, the Applicant's Written Submissions below (Appeal Book p 132S‑T) relies upon the unchallenged finding of the Applicant's expert that: (emphasis added) "Western Sydney Scrap metals do not accept metals from the public (they only buy from other businesses with an ABN). For example, they do not charge a fee to dispose of waste metal, they are metal dealers and processor [sic].", and makes a related submission at [31] of those submissions (Appeal Book p 133G‑J). The Commissioner's decision touches on this at [37] (Appeal Book p 22T‑W) and [58] (Appeal Book p 27N‑P). 9. The Court found Pain J's findings in Glass Recovery Services on how the term "waste" is to be understood was "relevant and persuasive" and that the Court should give significant regard to her Honour's conclusion on this point, Judgment [95]. 10. Justice Pain's conclusion was reached by finding it instructive to ask the question as to whose view material is waste. At AS [43] the Applicant referenced her Honour's finding at [83] that it was relevant to consider whether the material was waste in the hands of the operator of the facility, noting the fact that the operator paid for the material indicated that it was not waste in the hands of that operator. This led to her Honour's conclusion that the used glass should not be classified as "waste". 11. While neither party made mention of Pain J's decision in Glass Recovery Services, Judgment [94], with respect the Applicant squarely addressed the substance of her Honour's finding on waste, relevantly whether the materials received and paid for by the Applicant were waste in the hands of the Applicant. 12. This was done in two ways. The fact of the Applicant paying for the material was raised by both the Applicant's expert in the Joint Report, AS [39], and by the Applicant orally in closing submissions, ASWS [23]. 13. While the Applicant below did not in terms raise Pain J's decision, with respect it did adequately raise below the substance of the decision which the Court found to be persuasive. 14. Additionally, the Applicant's Further Submissions in Reply (AFSR) on waste at [16] underline the fact that the issue of waste was put squarely before the Commissioner, not only by the Applicant but also by the Respondent. 15. Having found for the Applicant on this element of Ground 1, Judgment [109], "as to the fundamental defect in the characterisation of the Company's activities of the site" which "require the Order to be set aside" it would be unreasonable not to allow the Applicant its costs on the appeal. 16. This is particularly so given the fact that the Applicant will remain out pocket for all costs up to and including the Commissioner's decision, including the cost of GIPA inquiries, and extensive submissions made responsive to Council's Notice of Intention prior to the issue of the Stop Use Order (evidenced at Appeal Book behind Tabs 9, 10 and 33‑36), despite the Stop Use Order not being a valid or lawful order. 17. The fact that the Applicant will continue to bear significant out of pocket costs is relevant to the judicial exercise of the Court's discretion on costs on the appeal. Second reason 18. Relevant to costs is the fact that at the hearing the Respondent did not object to leave being granted to new Ground 1A, leave was subsequently granted to allow the Applicant to rely upon the new ground and the ground did not require the Respondent or the Court to consider fresh materials ‑ Annexures A and B both being in evidence in respect of existing grounds. Consideration of these documents did not raise the Respondent's costs in any, or in any material way. 19. Whilst Ground 1A was not successful the circumstances of this case can be distinguished from a case where leave is opposed, leave is ultimately not granted and additional materials are required to be considered on the new ground. Those circumstances may be relevant to the exercise of discretion to award a different order than costs to follow the event. 20. In the circumstances of this case the failure to succeed on Ground 1A ought not be a reason to deny the Applicant its costs. 21. Further, the proceedings were efficiently conducted requiring only half a day to hear the appeal. Ground 2, 3 and 4 were not pressed as notified in the Appellant's Submissions (AS) filed 8 November 2022 at [5], and ground 5, an alternate ground in the event Ground 1 did not succeed, was unnecessary to be addressed, albeit for completeness the Court did address the ground. Conclusion 22. For the above reasons, it would be just and reasonable to make the usual costs order and award the Applicant its costs of the appeal.

The Council's costs submissions

The Council's costs submissions were also succinct and it is therefore appropriate to reproduce them in full: Introduction 1. On 5 April 2023, the Court handed down its decision on this s 56A appeal in Shah Friends Pty Ltd v Cumberland Council [2023] NSWLEC 31 (Decision). In relation to costs, the Court formed the view that there should be no order for costs and that each party should bear its own costs of the appeal: Decision at [114]. The Court gave the parties the opportunity to seek a different costs order, and on 3 May 2023 the Applicant filed submissions seeking that the Council pay its costs of the appeal. 2. For the reasons set out below, the Applicant's application for costs would be refused, and the Court would confirm its decision that there be no order for costs. 3. The Applicant identified five grounds of appeal in its Summons filed on 5 October 2022. In its written submissions filed on 8 November 2022, Ground 2, 3 and 4 were not pressed and the Applicant sought leave to introduce a new Ground 1A. The Applicant also raised a number of new alleged legal errors in its written submissions. 4. On the first day of the hearing of the appeal, the Applicant obtained leave to amend the Summons by adding Ground 1A: Decision at [23]‑[24]. Leave was also granted to the Applicant to further amend the Summons by adding the two matters in paragraph 29 of its submissions as additional particulars to Ground 1: Decision at [25]‑[27]. 5. As the Court noted in its Decision at [39] and [114], the appeal succeeded on a basis not fully or adequately argued before the Commissioner, and in circumstances where the hearing was run "in a fashion divorced not only from the hearing before the Commissioner but also in a fashion which differed to some considerable extent from that which might reasonably have been expected by the Council in its preparation". 6. The Council identified these problems with the way that the appeal was advanced in the Respondent's Outline of Submissions filed on 18 November 2022 (see [3], [17], [19], [30]‑[35]). The Applicant's written submissions bore very little resemblance to the matters pleaded in the Summons: Decision at [16]. Ground 1A 7. Ground 1A was raised for the first time in the Applicant's written submissions. Council did not object to leave being given for Ground 1A to be argued, and leave was granted on Day 1 of the hearing. However, the Applicant was unsuccessful on that ground. 8. The Court rejected Ground 1A for four reasons: Decision at [103]. Those reasons included that Applicant is bound by the forensic decisions in the way it conducted the case before the Commissioner (this ground was not advanced before the Commissioner), and was founded on a premise that was contrary to the agreed position of the town planners in the proceedings below. 9. Ultimately the Council had to incur the expense of addressing Ground 1A and it succeeded on it. Ground 1 10. The scope of Ground 1 was unclear to Council, and this was exacerbated by the fact that the Applicant's opening submissions did not address particulars (a) to (m) of Ground 1. Further, new allegations were raised in paragraphs [29]‑[30] of the Applicant's submissions in support of Ground 1. The Applicant sought, and was granted, leave to amend the Summons to rely on the paragraph 29 content as further particulars to Ground 1. The position advanced in paragraphs 29(a) and (b) was contrary to the position taken by the Applicant before the Commissioner. 11. The Court determined that there were two elements to Ground 1 (Decision at [41]) and proceeded to deal with those two elements separately. First element 12. In relation to the first element, the Council was successful. The Court concluded that the Applicant's activities did not fall within those that are permitted by the 1979 Consent: Decision at [67]. The approved plans for the 1979 Consent made clear that the consent approved the use as a "foundry", particularly in respect of that part of the building where the Applicant operates its business. The Court held that the approved foundry use is not consistent with the activities being undertaken by the Applicant in those portions of the building: Decision at [72]‑ [75]. Second element 13. The second element of Ground 1 was that the Applicant's activities were not properly characterised as being for the purpose of a "waste or resource transfer station" because the material being dealt with by the Applicant was not "waste". 14. The Applicant succeeded on this ground, however, on a basis that was not put before the Commissioner below nor squarely addressed in the Summons. Ground 1 was that the Commissioner failed to properly construe the 1979 consent and find an immunity from the need for (further) consent based upon section 4.70 of the Act. That may be understood as the first element above and a ground upon which the appeal failed. Rather than being squarely addressed by the summons as per the Decision at [41] the second element "arises from particulars (h) to (j) of the Summons ‑ but considered in the fashion addressed in Mr Lancaster's oral submissions and the Company's written submission on the appeal as to how the purpose for which the Company's use of the premises should be properly characterised" and in this sense as per the Decision at [114] differed to some considerable extent from that which might reasonably have been expected by the Council in its preparation for this hearing. 15. At [5] of the Applicant's Outline of Costs Submissions, the Applicant submits that the finding on waste meant that there was no lawful basis for a Stop Use Order to be issued with the result that the Court upheld the appeal. This submission emphasises the divorce from the fashion that the Council reasonably could have expected the case be run. There was no ground raised in the Summons alleging there was no lawful basis for the Stop Use Order to be issued. Indeed Ground 4 (no matter that it was subsequently not pressed) referred to a "discretion" to revoke the order. 16. The status of the material being dealt with by the Applicant was not a matter put into significant issue before the Commissioner: Decision at [81]‑[82] and [93]‑[94]. The issue of whether the material was defined as "waste" or "resource" was not squarely raised by either party, nor was it the subject of any significant legal submissions. 17. The Applicant's case before the Commissioner only lightly touched on the issue of whether or not the materials were "waste". At paragraph [31] of the Applicant's written submissions to the Commissioner the Applicant submitted that "the disposal of waste from the subject premises must be viewed with caution". That submission was concerned with outgoing materials, not incoming purchased material. Paragraph [31] of those submissions below went on to refer to a core use of the purchase of metals or items containing metals and concedes that they may be accompanied by other materials which are disposed of as waste. That is the extent of the Applicant's submissions below. 18. Further, the Commissioner's attention was not drawn to the decision of Pain J in Director‑General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49, that case being a significant basis upon which it succeeded on appeal. The Applicant's submissions on costs (at [11] and [13]) suggest that although Pain J's decision was not drawn to the Commissioner's attention, the "substance of the decision" was put to her ‑ that submission would not be accepted. The way that the "waste" argument was put on appeal did not relate in any way to the Applicant's case put to the Commissioner. 19. While a definition of "waste" was averted to by the Council, it did not limit its case to only "waste". On Council's case, it did not matter whether the material was "waste" or "resource" or both, because it could be either: see Respondent's Further Submissions on the appeal at [20]‑[28]. 20. The Applicant's case on the issue of "waste" was not raised in the Summons, and the manner in which it was advanced on appeal was not put to the Commissioner. This was the only issue that it succeeded on. For that reason alone it would not be just or reasonable for the Court to make an order for costs against the Council. Ground 5 21. The Court determining that the Commissioner's exercise of discretion to set a compliance period of 28 days was not unreasonable. The Court confirmed that the bar for demonstrating legal unreasonableness was a high hurdle and concluded that there was no proper basis to conclude that legal unreasonableness had been established. The Court concluded that, had it been necessary to determine Ground 5, it would have dismissed this ground. Limited success 22. The Applicant was ultimately unsuccessful on all of its grounds, except in relation to one aspect of Ground 1. It's success on that part of Ground 1 was on a basis not argued before the Commissioner and not addressed in the Summons. 23. Further, Ground 1A was raised for the first time in the Applicant's written submissions and was, again, not a matter that was argued before the Commissioner and, indeed, was a position that was contrary to the position taken below. 24. Given the manner in which the appeal was conducted and the Applicant's limited success, the Court would confirm the costs orders that it has made in its Decision, being that there be no order for costs. In the circumstances of the case, that order reflects a judicial exercise of the Court's discretion under s 98(1) of the Civil Procedure Act. Conclusion 25. For all of the above reasons, the Court would dismiss the Applicant's application for costs. 26. Should the Court be minded to make a different costs order, only a small percentage of the Applicant's costs should be recoverable, reflecting the way that it conducted the proceedings and its limited success in the appeal.

The Company's "reply" costs submissions

After the close of business on Friday 2 June 2023, a document was e‑mailed to my Associate (copied to the legal representatives of the Council) by the legal representative of the Company. This document (the contents of which are reproduced in full below) purports to be reply submissions on the question of costs. As can be seen from the opening paragraphs of this document, these "reply" submissions do not, in fact, reply to anything advanced for the Council in the submissions reproduced above, following [15]. They effectively constitute (without leave or any notice to my Associate or to the legal representatives of the Council) an entirely different approach to the question of costs in these proceedings, without any leave being sought to reopen for this purpose, and without any indication as to whether these "reply" submissions are intended to be in substitution for, or in addition to, the submissions earlier reproduced at [14].
It is also to be observed that these "reply" submissions sought to be relied upon for the Company are more than four pages in length ‑ a position contrary to that which was permitted in order (4) of my orders in my principal decision. No leave has been sought to do so, and no explanation given for the reasons for this length exceedance.
It is suggested, in paragraph 4 of these "reply" submissions, that the legal representatives of the Council should be afforded a further opportunity to respond to this entirely new basis advanced on behalf of the Company concerning how the costs' burden for the s 56A appeal hearing should fall. It is to be assumed that, if this course was to be followed, it might well be the position that the Company would seek the right to respond to any submissions advanced by the Council to these "reply" submissions.
The great British comedians, Monty Python's Flying Circus, would introduce different segments of their comedic routines with the phrase, "And now for something completely different". Such a description is an appropriate introductory observation to be made concerning the "reply" submissions e‑mailed to my Associate and to the legal representatives of the Council at 5.49 pm (after the close of business hours) on Friday 2 June 2023. No request was made to me for consent to be given to the Company, effectively, to entirely recast the basis upon which it wished to propose an alternative costs order.
However, having read and considered these "reply" submissions over the weekend, and having reached the conclusion that they provided nothing of substance (for the reasons later explained) to alter my tentative conclusion based on consideration of the Company's original submissions and the Council's response that order (3) of the orders in my principal decision should not be altered, I had my Associate advise the legal representatives of the Council, first thing on the morning of Monday 5 June 2023, that I did not wish to receive any submissions on behalf of the Council in response to these "reply" submissions advanced on behalf the Company. The 2 June 2023 "reply" submissions on behalf of the Company were in the following terms: 1. As noted in the Applicant's primary submissions on costs (ACS) the appeal succeeded because the Court upheld the second element of Ground 1 being the material with which the Company was dealing was not waste. 2. It followed that this finding meant there was no lawful basis for the Stop Use Order with the result the Court did not remit the matter, upheld the appeal and set aside the modified Stop Use Order. 3. In preparing these Reply submissions the Applicant considers Thaina Town v Sydney (2007) 71 NSWLR 230; (2007) 156 LGERA 150 at 181 (Thaina Town) a relevant authority to bring to the Court's attention, albeit in Reply. 4. The Applicant apologises for late notice of this authority and so would not oppose the Respondent having an opportunity to put on an additional submission, with a further opportunity for the Applicant to reply. 5. In Thaina Town Spigelman CJ (each of the Five Bench of judges, Mason P, Beazley JA, Giles JA and Ipp JA agreeing) found that contrary to Preston CJ's order in the Land and Environment Court that each party should bear its own costs, this case was an appropriate one in which costs ought to have been awarded in the proceedings, not only before Preston CJ but also before Commissioner Brown. This was found to be so notwithstanding the reasoning implicit in Preston CJ's determination that, "…the claimant may be regarded as fortunate to have succeeded with respect to the second matter as a finding of fact. Nevertheless he did succeed and was entitled to the conclusion that no Prevention notice should have been issued to him at all." 6. Similarly in this case neither the Stop Use Order nor the modified Stop Use Order should have been issued to the Applicant at all. 7. Spiegelman CJ noted "the claimant found itself in a position in which it was required to incur considerable expenditure in complying with the Notice or proceeding with its appeal." His Honour observed "…the claimant was resisting the imposition of a burden upon it by a council demand that was found by the Court to be unjustified" and found "… in these circumstances it is just and reasonable that the Council should compensate the claimant for the costs it was forced to incur by way of the Council's insistence on maintaining its stance." 8. Spigelman CJ had earlier accepted6 that the character of litigation is a relevant question in the exercise of the costs discretion, the relevance here being Class 1 proceedings resisting an Order. 9. As in Thaina Town the Applicant has incurred considerable expense in proceeding with its appeal and was required to either comply with or appeal the Stop Use Order as issued or as modified by the Commissioner. In a decision handed down on the same day by the same five bench Court, in Port Stephens Council v Jeffrey Sansom (Sansom) at [50] the Court addressed the basic "fair and reasonable" rule applying to Class 1 matters. The Court noted the relevant question is whether, despite the basic rule, in particular circumstances of a case, it is fair and reasonable for a party to be reimbursed for the costs it incurred. 10. Relevantly, Thaina Town and Sansom have been referred to subsequently in the Court of Appeal in Community Association DP270253 v Woollahra Municipal Council (Community). 11. Barrett JA (with whom Emmett and Leeming JJA agreed) at [19] noted the primary judge's observation that: "In Thaina Town (a decision of the Court of Appeal handed down the same day as Sansom) Spigelman CJ at [75]‑[76] considered there was a difference between an order imposing liability on a person by requiring conduct to occur and expense incurred under the threat of criminal sanction, such as that issued under s 121B of the EPA Act, and a merits appeal in relation to a development application or consent pursued within the regulatory planning framework in the context of exercising the costs discretion under s 69 of the Court Act then in force. Rule 3.7 was not then in force." 12. Barrett JA said at [21] "the distinction drawn in Thaina Town between appeals against orders and development appeals referred to in the passage set out above was "of course to be recognised" but "each case must be considered on its own facts and that requires consideration of what was involved in this complex appeal"". 13. In Community against the costs applicant it was found at [54] that: a. because (emphasis added) "[n]othing was said about the matters concerning the Stairway Conditions that ultimately found favour with the primary judge."; b. the case was "… distinguishable from one in which a party proposing to take proceedings puts to the prospective defendant a clearly articulated and reasoned basis for the view that any defence is doomed to fail and the prospective defendant, having had the untenable nature of all defences pointed out to it, nevertheless refuses to accede to the particular demand and thereby compels the prospective plaintiff to pursue the foreshadowed proceedings." 14. This case is in our submission clearly a type of case which their Honours in Community distinguished. The Applicant had repeatedly put the position to the Council to the effect that the material the Applicant was dealing with was not waste including as early as its detailed letter dated 25 June 2021 (accompanied by statutory declarations). In that letter, which was in response to the Stop Use Intention Notice issued by the Council on 22 March 2021, it was put squarely to Council that: "[t]he definition of 'waste or resource transfer station' is inappropriate to our client's business as it handles metals for purchase and sale that are used in further production. These metals are not waste." 15. Having found for the Applicant, albeit on the second element of Ground 1, the Applicant maintains that it would be unreasonable not to allow the Applicant its costs on the appeal (in accordance with the Court's wide discretion and the principles in Thaina Town and Community) and further submits, also relying on Thaina Town and Community, that the Court would be satisfied, in its judgment, that it is "fair and reasonable" for the Council to pay the Applicant's costs before Commissioner Gray, described at ACS [16]. 16. For completeness, contrary to the Respondent's costs submissions (RCS) at [16]‑[17] on whether the material the Applicant was dealing with was not waste, was fully or adequately argued before the Commissioner, and to the extent it is necessary to now resist the submission, for the reasons given at ACS [7]‑[8] the Court would accept that the issue was adequately raised by the Applicant at first instance in terms, as was the substance of the relevant argument relied upon by the Applicant in Glass Recovery Services ACS [11]. Further, and contrary to RCS [16] the Respondent in terms at first instance also addressed the matter of waste before the Commissioner, ACS [14]. 17. Further, whilst Ground 1A was not successful the Applicant relies upon the reasoning in Thaina Town and on distinguishing this case for the reasons outlined at ACS [18]‑[19] and [21]. Conclusion 18. For the above reasons, it remains just, fair and reasonable to make: a. in respect of the section 56A appeal, the usual costs order awarding the Applicant its costs of the appeal; and b. in respect of the proceedings before the Commissioner, to award the Applicant its costs of the appeal.

Consideration

I set out earlier how I came to be provided with "reply" submissions on behalf of the Company that are to be characterised, correctly, as raising entirely fresh material without leave to do so, and without notice to the Council's legal representatives of proposing to do so, and in a form which more than doubled the length that had been provided for genuine "reply" submissions by order (4) in my principal decision. I read these "reply" submissions over the weekend of 3 and 4 June 2023. As soon as was practical on Monday 5 June 2023, I had my Associate e‑mail the legal representative of the Company and of the Council. The e‑mail was in the following terms: Dear Mr Weinberger and Mr McFadzean His Honour has read the 'reply' submissions and directs that the legal advisers for the Council take no action to respond to them unless advised further by his Honour that it is necessary to do so.
It is to be observed that the three Court of Appeal decisions referenced in the "reply" submissions set out above (Thaina Town v Sydney (2007) 71 NSWLR 230; (2007) 156 LGERA 150 (Thaina Town); Port Stephens Council v Jeffrey Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 (Port Stephens); and Community Association DP270253 v Woollahra Municipal Council [2015] NSWCA 80) were not mentioned by the author of the primary submissions advanced on behalf of the Company seeking an alternative costs order, nor were any of them cited in the submissions provided on behalf of the Council in response to those initial submissions advanced on behalf the Company.
Although it was tempting to reject, out of hand, the "reply" submissions sought to be relied upon on behalf of the Company, I have concluded that I should address them without the necessity for providing the legal representatives of the Council with any opportunity to respond to them. I have so concluded because I am satisfied on a reading of the matters contained in these "reply" submissions, they do not alter the conclusion which I had reached (for the reasons explained below) that my initial conclusion, that there should be no order for costs of the Company's s 56A appeal, should remain undisturbed. My conclusion that the decisions of the Court of Appeal in Thaina Town and Port Stephens are to be distinguished and not applicable to the circumstances of these proceedings can be dealt with briefly. Although those two Court of Appeal decisions carry significant weight in circumstances where relevantly comparable factual situations would arise, that is not here the case.
Although, in Thaina Town, the five‑judge Bench of the Court of Appeal drew a distinction between merit appeals and appeals against orders (as was here the case before Gray C), the appeal in Thaina Town was, from my reading of the first instance decision before the Commissioner and the subsequent s 56A appeal before Preston CJ, argued on consistent grounds ‑ that is, the issues that were pursued before the Commissioner were those which were pursued before the Chief Judge. The same position applied in Port Stephens.
Here, the position is distinctly different ‑ in that, effectively, the grounds that were argued on the s 56A appeal before me (for reasons described in my principal decision) were completely different from the matters that were submitted on behalf of the Company before the Commissioner.
I accept that, had that difference of significance not occurred, it would have been appropriate to have followed the conventional position in s 56A appeals and award costs to the Company. However, for the reasons in the following portion of this judgment, the distinctly different course of events in this s 56A appeal means that the differential process discussed in Thaina Town is appropriate to be distinguished in the present circumstances.
The circumstances requiring my determination in the s 56A appeal against the decision of Gray C giving rise to the overturning of the Commissioner's determination were based, for the reasons explained in my principal decision, on what was effectively an entirely different, new, or radically expanded, case on appeal, when compared to the case which was advanced before the Commissioner (noting earlier that the representation of the Company on appeal differed from the representation before the Commissioner). As a consequence, the matters which were permitted to found the Company's 56A appeal as argued and determined as giving rise to errors in the legal process before the Commissioner, such errors did not arise through any fault of the Commissioner but arose on appeal on what amounted to an entirely different basis from the basis upon which the original Class 1 appeal was mounted before the Commissioner.
That procedural position is entirely different from that which was required to be considered by the Court of Appeal in either Thaina Town or Port Stephens. For this simple reason, the determinations of the Court of Appeal are not applicable to the procedural position which arose in these s 56A appeal proceedings. As a consequence, they provide, I am satisfied, no relevant guidance as to whether or not I should exercise the discretion given to me by s 98(1) of the Civil Procedure Act 2005 (the Civil Procedure Act) to depart from the ordinary, presumptive position that costs follow the event in s 56A appeals.
The submissions advanced on behalf of the Council in support of the proposition that the costs' outcome I had proposed in my principal decision should stand are to be accepted. In particular, the analysis contained in those submissions explaining why the gloss put on the submissions advanced by Mr Weinberger before the Commissioner, concerning whether or not the material being dealt with by the Company in its activities was "waste", and the failure, before the Commissioner, to draw the Commissioner's attention to the decision of Pain J in Director‑General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49 and its relevance to the matters requiring to be considered by the Commissioner are to be accepted.
The fact that the Company succeeded on appeal (in effect, only on matters that were not advanced before the Commissioner) provides, I am satisfied, a sufficient and proper basis to exercise the discretion given by s 98(1) of the Civil Procedure Act and to set aside the presumption that costs would follow the event in the principal proceedings and "otherwise order" that there should be no order for costs, for the reasons explained in my principal decision and earlier set out in this costs decision.
I note that, in the Council's submissions in response to the Company's proposal that I should vary my determination that there should be no order for costs of the appeal hearing, the Council does not seek its costs of this costs' consideration.
Although I have concluded that I should maintain my conclusion that there should be no order for costs of the s 56A proceedings and that each party should bear its own costs of those proceedings, I have also concluded that it is a position which should also apply to the costs of the Company's application to have me vary order (3) of my principal decision in the fashion sought by the Company.
I have reached this conclusion for two separate reasons. First (and primarily), the legal representatives of the Council have not sought, in the written submissions set out at [15], that the Company be required to pay the Council's costs of this costs' consideration. Further, that position is entirely consistent with what I consider to be the appropriate outcome of the overall s 56A appeal in circumstances where, for the reasons discussed in my principal decision, the Council's position before the Commissioner at first instance was also infected with error.
I should also observe, as it is relevant on this point, that my having an e‑mail sent to the legal representatives of the parties in the fashion described at [21] above should have headed off any necessity for any further costs being incurred on behalf of the Council for consideration of, and response to, the Company's "reply" submissions.
As a consequence, not only will there be no order for costs of the appeal proceedings, there will also be no order for costs arising out of the Company seeking a variation to the costs' position determined by me in my principal decision.

Order

The order of the Court, therefore, is: 1. The application to vary order (3) of the orders of 5 April 2023 is refused.

Amendments 09 June 2023 - Amended cross-referencing in [16] and [33]. 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: 09 June 2023

(2007) 156 LGERA 125

(2007) 156 LGERA 150

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