Fibopo Pty Ltd v Willoughby City Council

Land and Environment Court (NSW)|2006-02-17|Before: Mr J

Background 1 This matter involves an application for costs incurred in an appeal against council's refusal of a development application for a duplex at 8 Coolaroo Road, Lane Cove. The applicant was successful in the merits appeal and the Court orders granting the consent were made on 25 November 2005.

2 Towards the close of the proceedings, Mr Cole on behalf of the applicant gave notice of a costs claim and subsequently provided an itemised list of costings amounting to $20,277. The claim is based on costs incurred after the Class 1 Application was filed on 7 March 2005 and whilst the individual costs are itemised, there is some difficulty in assessing their reasonableness in terms of the efficient conduct of the proceedings.

4 Furthermore, Mr Cole submits that, after Mr A Ludvik was appointed the Court-appointed expert for planning on 5 September 2005 and assessed the proposal, he concluded that it merited conditional consent. Accordingly the applicant sought council's endorsement of this conclusion to resolve the matter quickly and cost effectively, but this was not forthcoming.

5 Then at the hearing, the applicant accepted the draft conditions proposed by the council and other minor amendments were made to the proposal at the appeal, in order to resolve the matter.

6 Consequently, the applicant's ultimate submission is that it was eventually successful before the Court, in line with the previous recommendations to the council, as well as the position of the CAE, so that the cost amount of $20,277, together with an additional $3729 being its half share of the cost incurred by the CAE, should be awarded to it.

7 Against this, Ms Irish expressed concerns about the contents of the itemised list of costs. She refers to a number of cases relating to the principles for awarding costs, concluding that no costs should be awarded in this case because: · when the appeal commenced on 10 March 2005, the respondent did not act improperly or unreasonably in raising issues, which bear a strong resemblance to the concerns previous expressed by council on 5 March 2004; · after amendment C plans were prepared for the hearing, they were notified and further objections received. Notwithstanding the council officer's recommendations to enter into consent orders, based on deferred commencement conditions, the council maintained its position for refusal of the application. However council was not obliged to accept this recommendation and accordingly costs should not be awarded on this basis. Conclusions 8 The submissions from both parties refers to the provisions of Pt 16 r 4(2) of the Land and Environment Court Rules 1996, which provides that: No order for the payment of cost will be made in proceedings to which this Rule applies unless the Court considers that the making of costs is, in the circumstances of the particular case, fair and reasonable. 9 It is apparent from the submissions, that the applicant has experienced some delays and frustration in the determination of this application since it was first lodged with council and subsequently received a number of staff recommendations for its approval. But as some of these delays were outside the appeal proceedings, they would not be subject to any cost award by this Court.

10 However, following commencement of the appeal proceedings by the applicant on 10 March 2005, the usual procedures for a merit appeal appear to have been followed, with the presentation of a statement of issues for the applicant to respond that appeal. Accordingly the applicant has sought to address these issues by way of some minor amendments, which after notification and receipt of objections, the application was not approved by council.

11 Even though the amended proposal was recommended for approval by the council officers and the Court appointed-expert, nevertheless I do not consider the council was bound to accept these recommendations. In this regard, I rely on the following submissions and references by Ms Irish:

12 In RCM Constructions Pty Ltd v Ryde CC (No 2), Lloyd J agreed with Bignold J in Gales Holdings Pty Ltd v Tweed SC (No 2) and said that: The starting point in considering any application for costs in cases such as this, … is the general principle that costs are not awarded in planning appeals unless it is fair and reasonable in the circumstances of the particular case to make an order for the payment of costs. The reason behind the principle has been explained in many cases. Simply stated, it is to encourage dissatisfied parties to seek review of planning decisions made by local councils rather than discourage them by burdening them, if unsuccessful, with the risk of an adverse order for costs.

13 Then in the case of Optima Developments Pty Limited v Gosford City Council [2003] NSWLEC 338, reference was made to: "the application was the subject of some controversy within the neighbourhood…", "… a contest in relation to merit matters took place", "… significant issues of merit were advanced by local residents", "… the hearing required the resolution of merit matters". 14 My consideration of these decisions in the context of the subject application shows there are some similarities, particularly the strong public interest. Since the subject application was originally lodged with council and notified, it attracted a significant number of objections. With the further amendments, the objections were maintained and then at the on-site hearing, the objectors attended and expressed their concerns about the streetscape impact of the proposal, together with other amenity matters. 15 In my assessment, it was fair and reasonable to allow the objectors to express their views, prior to any determination of the application. In the circumstances in this case, the proposed attached dual occupancy development represented a departure from the conventional detached dwellings in this neighbourhood and various subjective opinions were expressed, relative to the prevailing streetscape, character of the area and amenity controls in the DCP. 16 It seems to me that the consent authority should consider all these objections and competing positions, including the recommendations of the assessing officers and where applicable, the Court-appointed experts opinion. But the ultimate balancing of these competing positions is determined by the consent authority, where these assessing officers do not have delegated authority. This general assessment and determination procedure has been followed in this case, with the council not accepting the technical recommendations, which is its entitlement.

17 It is apparent to me from the submissions, that whilst the assessment and determination procedure was protracted, nevertheless the applicant continued to negotiate and liaise with council/officers during the lead in period for the appeal, in an endeavour to efficiently resolve the matter. Insofar as this was unsuccessful and the applicant was ultimately successful at the appeal, I do not consider this is fair and reasonable grounds to award costs against the council. By reference RCM Constructions, the council is also entitled to have its planning decision reviewed at appeal, without the risk of an adverse order of costs, unless there are extraordinary circumstances.

18 Instead it seems to me, that if the applicant wished to have the planning decision procedure and merits of the appeal finalised earlier, then ample opportunities were available to apply to the Registrar to list the matter expeditiously for this purpose. But this was not pursued, and accordingly I do not consider the council should be penalised, in this case, for following procedures, which allow public participation, while the applicant knowingly acceded to this approach, notwithstanding that a number of recommendations for approval had been made. 19 For these reasons then, I do not consider it would be fair and reasonable to award costs against the council in these proceedings because I do not consider any extraordinary circumstances were established to warrant this. Court orders 1 The cost application is dismissed.

              R Hussey
              Commissioner of the Court
              rjs

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.

CITATION : Fibopo Pty Ltd v Willoughby City Council [2006] NSWLEC 19

RCM Constructions Pty Lt v Ryde CC (No 2) ; CASES CITED: Gales Holdings Pty Ltd v Tweed SC (No 2) ; Optima Developments Pty Limited v Gosford City Council [2003] NSWLEC 338

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