CSA Architects Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2004-05-19|Before: Mr P

The applicant raised the following reasons why an order for costs should be successful: * the applicant succeeded in the appeal, * while the council raised heritage and planning issues in relation to the replacement of the balustrade, it called no expert or lay evidence in relation to this issue. The applicant contends it was unnecessary to go to the expense of having to call a qualified expert to address these issues, * the expert planning evidence the council sought to tender was contrary to Expert Witness Practice Direction 2003 or the previous Practice Direction, in that it did not contain an acknowledgement by the authors of their obligation to the Court, and * the issues ignored the reality of the situation in that the development application was only for alterations and additions and the existing unsympathetic balustrades could have been retained.

9 . The respondent opposes an order for costs for the following reasons: * success in the appeal is not a basis for establishing fairness or reasonableness, * the respondent was under no obligation to file and serve any expert statement evidence. The council officers report could be considered a Position Paper and as such the Expert Witness Practice Direction does not apply, * while the respondent was unsuccessful in tendering the council officers report as a Statement of Evidence, the document would ordinarily form part of the council's bundle of documents. For this reason it is difficult to establish how the adducing of a council officers report would be unfair or unreasonable to the applicant, and * the appeal process allows each party to put their case to the Court and the relevancy of any matters is a matter for the Court to determine.

10 . In relation to the applicant's submission that costs should follow the result, I accept the respondent's submission that this is not, in itself, an indication of fairness or reasonableness.

11 . Combining the second and third reasons, the essential difference between the parties is whether the council adequately defended the issues it raised. The applicant contends that it did not, as it provided no expert evidence. The council contends that the issues are adequately defended through the contents of the council officers report.

12 . It has been the practice in Class 1 matters for both parties to provide expert evidence on issues in the expectation that the Court will adjudicate on this evidence. However, as the Chief Judge has made plain, such an approach is not necessary in all cases. It must also be remembered that the Court brings a level of specialist knowledge to Class 1 proceedings because of the qualifications and experience required of a Commissioner by s 12 of the Land and Environment Court Act 1979 (the LEC Act). Additionally, s 38(1) of the LEC Act states Class 1, 2 and 3 proceedings "shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matter for the Court permit". Clearly, the emphasis is on the content and quality of the evidence that will allow the Court to carry out its statutory duty rather than the exclusive use of expert reports. In many, cases an issue raised by the council will be sufficiently supported by an understanding of the plans and an appreciation of the site and its environment. Although the calling of an expert may add another opinion about the matter it may add little if anything to the knowledge that the Court may need to resolve the issue.

13 . In this case, the council supported and explained the issues through the tender of the council officers report. The position, which the council adopted in relation to the balustrade, comes from the council's Heritage Officer, Mr Zoltan Kovacs. Although Mr Kovacs is no longer employed by the council, his report was used in the first application and replicated in the current application. While the Court did not form the same view as Mr Kovacs, I accept that the amendments sought by Mr Kovacs had some merit and were not entirely without a rational basis.

14 . Mr Rigg correctly submits that there is no obligation on any party to the proceedings to tender expert evidence. Indeed, as I have indicated earlier, the Chief Judge has on a number of occasions expressed concern that a "culture" has developed where expert evidence is thought to be required before a party can expect to succeed on an issue. This is clearly not the case. If there are deficiencies in an application these can be identified and explained to the Court which in many cases will not require expert evidence to understand the alleged difficulties or to come to view as to whether the proposed development should be approved.

15 . Mr Parry's submission that the council officers report could not be an expert report because it did not contain an acknowledgement by the authors that they had read the Practice Direction is correct, however it is not of great significance as the report was ultimately admitted into evidence as a document relating to the council's decision and accordingly of relevance to the proceedings.

16 . The applicant's submission that the opposition to the development application ignored the reality of the situation should be rejected. While the Court ultimately found in favour of the applicant on the merits, I am not convinced that the proposed development was not so lacking in merit as would justify an order for costs.

17 . For the foregoing reasons, the application for an order for costs is dismissed.

  G T Brown
  Commissioner of the Court
  rjs

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CITATION : CSA Architects Pty Ltd v Woollahra Municipal Council (No. 2) [2004] NSWLEC 234 revised - 19/05/2004 APPLICANT CSA Architects Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 11466 of 2003 CORAM: Brown C KEY ISSUES: Costs :- Class 1 development application LEGISLATION CITED: Land and Environment Court Rules (Amendment 8) 2003 CASES CITED: DATES OF HEARING: Written submissions by 05/04/04 DATE OF JUDGMENT: 05/19/2004

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