Finding
13 Section 69(2)(a) of the Land and Environment Court Act 1979 (the "Court Act") provides that costs are in the discretion of the Court. As these are Class 1 proceedings, Pt 16 r 4(2) of the Land and Environment Court Rules 1996 (the "Court Rules") also apply. This provides that in Class 1 proceedings:
No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable .
14 At [14], Grant refers to Talbot J's finding in Aldi Foods Pty Limited v Holroyd City Council [2005] NSWLEC 338 at [5], where he stated:
The Rules make it plain that the approach to an application for an order for costs in class 1 proceedings is fundamentally unchanged from the historical position to the extent that the underlying principle is that there will generally be no order as to costs. Accordingly, unless it is in the circumstances of the particular case otherwise fair and reasonable, the Court will approach the exercise of its discretion on the basis that parties are to remain confident they may commence or defend proceedings without the onerous threat of incurring liability for costs other than their own, even if they are not the successful party. In other words costs will not be awarded in the proceedings referred to in Part 16, rule 4 unless it is fair and reasonable to depart from the underlying assumption in the circumstances of the particular case. Reasonableness is to be determined according to the ordinary sense of the word. The award for costs has to be fair as well as reasonable. Thus not only must it be reasonable for costs to be awarded but it must also be just and equitable.
15 This approach was confirmed recently in the Court of Appeal in Hunter Development Brokerage Pty Ltd v Cessnock City Council 63 NSWLR 124. In that judgment, Baston JA reiterated that costs are to be decided on a case by case basis, at the discretion of the judge. He held at [50] that:
…in relation to (Pt 16 r 4), the preferable approach is to treat the power granted to the Court to depart from the general principle as one to be exercised in relation to a particular case, dependent upon the conduct of those proceedings. The rule itself does not distinguish categories of Class 1 proceedings: rather it provides a general approach subject to the Court otherwise ordering "in the circumstances of the particular case". This language provides an indication that a general alternative approach was not intended to be adopted for particular categories of cases within Class 1, 2 or 3.
16 The circumstances identified in Grant v Kiama at [15] are a useful guide to situations where in a particular case costs have been awarded where it is fair and reasonable to do so. Those situations are not described in the judgment as categories. They continue as a useful reference in costs matters.
17 When considering costs the Court must focus on the conduct of the parties in the proceedings. I agree with the Council's submissions that here, the relevant proceedings are the s 97 appeal, and not the Council's determination of the s 82A review. Whether the Council behaved reasonably or not in how it dealt with the s 82A review is not material and I draw no conclusions in that regard.