Land and Environment Court New South Wales

• Medium Neutral Citation: Brennan v Leichhardt Council (No 2) [2013] NSWLEC 199
• Hearing dates: 19 November 2013
• Decision date: 19 November 2013
• Jurisdiction: Class 1
• Before: Pepper J

Decision

The applicants' notice of motion is dismissed with costs.

• Catchwords: COSTS: whether fair and reasonable to make a costs order in a Class 1 tree appeal - no costs order made.
• Legislation Cited: Environmental Planning and Assessment Act 1979, s 97; Land and Environment Court Rules 2007, r 3.7
• Cases Cited: Brennan v Leichhardt Council [2013] NSWLEC 1172
• Category: Costs
• Parties: Mr Sean Brennan (First Applicant); Ms Deborah Soden (Second Applicant); Leichhardt Council (Respondent)
• Representation: Mr S Brennan (Applicants); Mr J Fan (Solicitor) (Respondent); N/A (Applicants); Pikes & Verekers Lawyers (Respondent)
• File Number(s): 10388 of 2013

Ex tempore Judgment

Mr Brennan and Ms Soden Seek their Costs in a Class 1 Tree Appeal

1 By notice of motion filed 1 October 2013, Mr Sean Brennan and Ms Deborah Soden, the applicants, seek an order that Leichhardt Council ("the council") pay their costs in respect of a partially successful appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EPAA") against an initial determination made by the council rejecting their application to remove a tree from their rear garden.

2 Because the appeal was filed in Class 1 of the Court's jurisdiction, costs do not follow the event. Rather, pursuant to r 3.7 of the Land and Environment Court Rules 2007 ("the Rules") the position is that the Court is not to make an order for payment for costs unless the Court considers that the making of an order is fair and reasonable in the circumstances.

3 Rule 3.7 of the Rules relevantly provides:

3.7 Costs in certain proceedings

(1) This rule applies to the following proceedings:

(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.

4 The application for costs is consequential upon the decision of a Commissioner of this Court partially upholding Mr Brennan's and Ms Soden's appeal by ordering the removal of a tree, but subject to a condition, opposed by them, requiring the planting of a replacement tree (Brennan v Leichhardt Council [2013] NSWLEC 1172).

5 As will be apparent from the description of the relevant background facts below, the orders made by the Commissioner were in precisely the same terms as those offered by the council to resolve the matter prior to the hearing of the appeal. Although Mr Brennan and Ms Soden allege unmeritorious conduct on the part of the council such that an order for costs is justified, no evidence whatsoever was put before the Court demonstrating any wrongdoing by the council. Further, there was nothing about the substance of the issues raised in the appeal that appropriately engages the jurisdiction of this Court to order costs pursuant to r 3.7 of the Rules.

6 In short, in circumstances where the only issue upon which Mr Brennan and Ms Soden were successful was a matter with respect to which the council was prepared to agree, Mr Brennan and Ms Soden are fortunate that the council is not seeking its costs of the appeal. If it had done so, the Court would have had little hesitation in ordering Mr Brennan and Ms Soden to pay the council's costs.

Mr Brennan and Ms Soden Seek the Removal of a Jacaranda Tree

7 The background to this application is found in the careful and thorough decision of the Commissioner. It is as follows. In March 2013 Mr Brennan and Ms Soden lodged a tree application with the council seeking permission to remove a large Jacaranda tree from their rear garden. The basis of the application was the dropping of a large branch from the tree onto their garage causing damage on 13 March 2013.

8 The application to remove the tree was refused by the council on 7 May 2013 ("the determination"). Instead, permission was given for pruning of the tree in accordance with the complying works section of the council's tree preservation order. It was this determination that Mr Brennan and Ms Soden appealed.

9 Prior to the council's determination, on 21 March 2013 the council's landscape assessment officer had undertaken a ground based visual inspection of the tree and determined that the tree was in good health.

10 However, an associate of Mr Brennan and Ms Soden, who had horticultural qualifications, inspected the tree on 14 April 2013 and advised that there could be a fungal infection, possibly Armillaria.

11 The council was informed of this and, accordingly, on 17 April 2013 a council officer and a consulting arborist inspected the tree but noted no signs of the fungus.

12 Meanwhile on 18 April 2013 Mr Brennan and Ms Soden had sent a sample of loose bark from the tree to the Plant Disease Diagnostic Unit of the Royal Botanic Gardens Sydney ("the Botanic Gardens").

13 Initially the test results came back negative for Armillaria. However, following the sending of another sample for testing on 9 May 2013, on 24 May 2013 Dr Edward Liew, Manager Plant Pathology, at the Botanic Gardens, advised Mr Brennan and Ms Soden that Armillaria had been detected.

14 Dr Liew advised Mr Brennan and Ms Soden that there was no effective fungicidal control of Armillaria and that, in situations where the disease is advanced, serious consideration should be given to removing the tree.

15 A copy of the letter from Dr Liew was sent to the council by Mr Brennan. Unfortunately, these latter events occurred after the council had made its determination refusing the application to remove the tree on 7 May 2013.

16 The council properly advised Mr Brennan after receipt of the second test results from Dr Liew that further consideration of the evidence could be the subject of an internal appeal of the original determination but that a fee of $97.50 was required to be paid by them.

17 Rather than go through the council's internal appeal process, Mr Brennan and Ms Soden elected, as was their right, to file an appeal in this Court.

18 Over initial objections from Mr Brennan and Ms Soden, the council engaged Mr Guy Paroissien, Consulting Arborist, of Landscape Matrix Pty Ltd, to carry out an assessment of the tree. This took place on 2 July 2013.

19 Mr Paroissien observed the tree to be in good health. While acknowledging the sample of bark had tested positive for Armillaria, he noted no visual evidence of any significant pest or disease, including on the broken branch. He also noted the visibility of the tree in its environment and considered the tree to be of moderate to high landscape value. Taking into account the tree's age, health, vigour and positive test for Armillaria, he concluded that the tree had a safe life expectancy of between 5 and 15 years.

20 After considering the various management options in respect of the tree, Mr Paroissien recommended its removal and replacement. His reasons for doing so included the absence of any effective controls for the disease, the relatively short safe life expectancy and the proximity of the tree to the garage and the likelihood of future damage to that structure.

21 With respect to its replacement, given the space restraints in the rear yard of Mr Brennan and Ms Soden, Mr Paroissien considered that a medium sized deciduous tree such as a Chinese Tallow or Ornamental Pear would be appropriate.

22 From an affidavit sworn on behalf of the council by Ms Julie Walsh, a solicitor employed by the Council's legal representatives, on 28 October 2013, it is apparent that following the receipt of Mr Paroissien's expert report, the council was prepared to enter into a s 34 agreement, the terms of which included the removal of the Jacaranda subject to the planting of a replacement tree. The council suggested that the matter be resolved by way of consent orders embodied in a s 34 agreement. In terms of the replacement tree, the council further suggested, as a compromise to objections from Mr Brennan and Ms Soden, planting a replacement tree not in their rear yard but in their front yard.

23 All attempts by the council to resolve the matter through the mechanism of a s 34 conference were, however, rejected by Mr Brennan and Ms Soden, who opposed the planting of a replacement tree. In addition, Mr Brennan and Ms Soden challenged the power of the council to impose such a condition pursuant to the removal of the Jacaranda tree.

24 As a consequence, the matter proceeded to a hearing with the council's statement of facts and contentions including the following contention:

3. The council does not object to the removal of the tree at this stage provided that it is satisfied that a suitable replacement tree can be planted as required under the Leichhardt Tree Preservation Order.

25 The hearing took place on 3 September 2013 commencing on site. At the hearing Mr Paroissien gave evidence that the root removal of the Jacaranda could be expensive and onerous. Mr Paroissien suggested an alternative to removing the roots and soil from the rear garden would be to plant a small tree in the front garden. Four species were suggested by him, three of which had been nominated by the council.

26 At the hearing, Mr Brennan and Ms Soden objected to the making of an order for them to plant a replacement tree and raised a jurisdictional issue concerning the power of the Court to make such an order. In addition, they argued that the planting of a replacement tree in their front garden would be detrimental to their enjoyment of that space, was a possible security risk, would be out of character with the adjoining properties and could cause disruption to underground services.

27 All of the arguments raised by Mr Brennan and Ms Soden were rejected by the Commissioner (at [55]-[76]). In her opinion, the imposition of the condition was within the Court's power, was reasonable in the circumstances and the merits of planting a small replacement tree outweighed Mr Brennan's and Ms Soden's arguments against doing so.

28 Therefore, the Commissioner approved the application to remove the Jacaranda tree and ordered that a replacement tree of one of the three species nominated originally by the council was to be planted in the front yard of Mr Brennan's and Ms Soden's premises within 28 days of the removal of the Jacaranda (at [78]).

It is Not Fair and Reasonable to Order the Council to Pay Mr Brennan's and Ms Soden's Costs

29 Mr Brennan and Ms Soden relied upon an affidavit sworn by Mr Brennan on 1 October 2013 in support of their application for costs. The affidavit contained material that was either self serving, was otherwise opinion evidence or constituted argumentative assertions for which there was no foundation.

30 In summary, Mr Brennan claimed that:

(a) there was a lack of impartiality by the council in determining their tree removal application;

(b) the council did not comply with orders of the Court directing them to file "documents evidencing the lodgement, processing and determination of the application by the consent authority". Instead they filed a "file note" from Mr Steven Griffiths, a council officer, which was "a litany of lies and was clearly designed to protect him from any complaint I might make" about his conduct;

(c) the council ran "the appeal in a way that hid its officers from scrutiny by the court"; and

(d) "it was obvious" from the outset that the tree was dangerous and unsuitable for its location.

31 In addition to the affidavit of Ms Walsh referred to above, the council also relied upon an affidavit of Ms Roslyn McCulloch sworn on 28 October 2013. Ms McCulloch is a solicitor under the supervision of Ms Walsh.

32 The evidence in the affidavits of Ms Walsh and Ms McCulloch unequivocally demonstrated that:

(a) the council complied with all orders of the Court;

(b) Mr Griffiths' file note was properly included in the council's bundle of documents tendered in the proceedings. In any event, because Mr Brennan objected to its inclusion at the hearing the file note was treated as not read by the Commissioner during the proceedings;

(c) there was no attempt by the council to hide any council officers from the scrutiny of the Court; and

(d) there was no bias or partiality in the manner in which the council assessed the tree removal application or in making its determination.

33 Having regard to the non-exhaustive matters for consideration pursuant to r 3.7(3) of the Rules it is tolerably clear that it would not be fair and reasonable for the Court to make an order that the council pay Mr Brennan's and Ms Soden's costs of the appeal before the Commissioner.

34 This is because:

(a) first, the proceedings did not involve, contrary to the submissions of Mr Brennan, a determination on a question of law that was truly determinative of the proceedings such that it could justify an order for costs. Rather, Mr Brennan and Ms Soden unsuccessfully raised a jurisdictional issue concerning the power of the Court to impose conditions. It would be somewhat perverse if, having failed on this argument, Mr Brennan and Ms Soden were able to claim the costs of such a failure;

(b) second, the council's conduct in terms of any alleged failure to provide its full file notes or documents was not proven on the evidence before the Court and was in no way shown to have been unreasonable. Indeed, when asked to provide further documents, the council willingly did so. No reference to these additional documents was, however, made by Mr Brennan and Ms Soden during the course of the hearing, thereby resulting in wasted costs on behalf of the council in having to produce them; and

(c) third, Mr Brennan's and Ms Soden's attempt to impugn the conduct of council officers in the council's assessment of the tree removal application must be emphatically rejected. Mr Brennan and Ms Soden have failed to demonstrate that there was any partiality or bias by the council in its conduct. On the contrary, the facts as found by the Commissioner make plain that there was ample evidence before the council validating its initial position that the tree ought not be removed. If anything, the council is to be commended for its willingness to change its position upon receipt of Mr Paroissien's expert report, namely, that removal of the Jacaranda tree was in fact warranted. It was this change of position that led the council to quite reasonably attempt to settle the matter by way of consent orders in order to avoid a hearing of the appeal with its attendant legal costs. The only parties acting unreasonably in the conduct of the appeal were Mr Brennan and Ms Soden. For example, they denied Mr Paroissien access to their property in order to inspect the Jacaranda tree forcing the council to seek an order to this effect from the Court. The stated basis for doing so was because the council had not filed its statement of facts and contentions, but as the council quite correctly advised Mr Brennan and Ms Soden, until Mr Paroissien had inspected the tree it was not possible for it to finalise and file its position.

35 Thus, for the reasons discussed above, the application must fail.

Costs of the Notice of Motion

36 The council seeks its costs of the failed notice of motion. This is opposed by Mr Brennan and Ms Soden.

37 In light of the discussion above, in my view, it is fair and reasonable to make such an order pursuant to r 3.7 of the Rules. Not only have Mr Brennan and Ms Soden been wholly unsuccessful in respect of their application, as the reasons above indicate, their application was wholly without merit and was entirely misconceived given the factual circumstances of the appeal.

Orders

38 The applicants' notice of motion is dismissed. The applicants must pay the respondent's costs of the notice of motion.

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Decision last updated: 20 November 2013