The Barossa Council v Wiebrecht [2005] SAERDC 99 (26 September 2005)

Last Updated: 28 September 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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THE BAROSSA COUNCIL v WIEBRECHT

Judgment of Her Honour Judge Cole

26 September 2005

LOCAL GOVERNMENT - TOWN PLANNING

Enforcement proceedings by Council in relation to use of land by respondent - Council seeking order pursuant to s 85(17a) of the Development Act 1993 - order that respondent pay the legal costs of the Council - respondent's application seeking order for costs rejected.
Development Act 1993, referred to.
Boscaini Investments & Ors v Corporation of City of Kensington & Norwood [1999] SASC 327, considered.

THE BAROSSA COUNCIL v WIEBRECHT
[2005] SAERDC 99


THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

The Barossa Council issued enforcement proceedings against Mr Wiebrecht, pursuant to s 85 of the Development Act 1993, in relation to his use of land at 30 Walden Street, Tanunda, for the storage of various items, such as building material, rubble and machinery parts. The substance of the matter between the parties has settled. The settlement does not require the making of an order by this Court. Work has been performed on the land by Mr Wiebrecht which has brought the land into a condition acceptable to the Council. The outstanding issue between the parties is the issue of legal costs.

2

The Council seeks an order for costs against Mr Wiebrecht pursuant to s 85(17a), which provides:-

s 85(17a) The Court may make such order in relation to costs of proceedings under this section as it thinks fit.

This section confers a broad discretion as to costs.

3

Mr Hilditch, for the Council, argued that the Council should be awarded its costs because it has achieved its objectives in the action. He pointed to the fact that the bringing of the proceedings had prompted Mr Wiebrecht to improve the condition of his land to the point where the Council considered it unnecessary to bring the matter to a hearing. Mr Hilditch relied upon the principles set out in Boscaini Investments Pty Ltd & Ors v Corporation of City of Kensington & Norwood [1999] SASC 327 by Justice Debelle, in the context of judicial review proceedings:-

In cases where the issues have become moot, the applicant has effectively achieved its goals, and it is reasonable to conclude that it succeeded because the proceedings were commenced and it had reasonable prospects of success, the applicant might recover its costs. (In this discussion, a reference to parties as applicant and respondent, also signifies plaintiff and defendant.) An instance is R v Gold Coast City Council; ex parte Raysun Pty Ltd [1971] QWN 13. In that case the applicant granted an order nisi calling upon the respondent to show cause why a writ of mandamus should not issue to compel the Council to determine an application before it for approval of road and drainage plans. After the order nisi had been granted, the Council considered the application and granted it. The Full Court held that it was not necessary to determine the merits of the matter as a condition precedent to an order for costs. The court concluded that the prosecutor had reasonable grounds to complain of the Council’s failure to consider its application and had an arguable case to support the issue of a writ of mandamus. The prosecutor was granted costs up to the time it was informed of the Council’s decision to grant the application. Plainly the Court was influenced by the fact that the prosecutor’s actions were justified and that it had reasonable prospects of success. It was reasonable to conclude that the Council’s decision had been prompted by the order nisi.

4	Mr Portway, counsel for Mr Wiebrecht, argued that his client had made no concession as to the lawfulness of his land use. He said that Mr Wiebrecht had made a commercial decision to undertake works to satisfy the Council. He submitted that costs should follow the event meaning, I take it, that the Council’s indication that it did not now seek any substantive orders should be counted as a successful outcome for Mr Wiebrecht.
5	The only evidence before me is the affidavit of Ronald John Sweetman, a Council officer. That affidavit gives details of inspections of the land over the last 10 years. The land is located in the Tanunda Residential Zone. There is a house on the land, together with some outbuildings. The affidavit has annexures comprising photographs of the land on various dates. The most recent photographs were taken on an inspection in December 2003. They show that the land was being used for the storage of a wide variety of items, including corrugated iron, vehicles and vehicle parts, wood, window frames, wire, bricks, roof tiles, machinery, 44 gallon drums, PVC pipes, concrete pipes and scrap steel.
6	I am satisfied that the Council had a reasonable chance of success in the proceedings, and that Mr Wiebrecht, whilst not admitting any unlawful conduct, was motivated in changing his use of the land by the proceedings. In those circumstances, it is appropriate that the Council be awarded its costs of bringing the proceedings.
7	Mr Portway, in his outline, sought an order for costs against the Council. I reject this application.
8	I will make an order that Mr Wiebrecht pay the costs of the Council in this matter, to be agreed or taxed.