Finding
22 The Court of Appeal in Sansom reviewed the Court's consideration of "fair and reasonable" in the context of whether costs should be awarded in Class 1 proceedings when the usual position is that they are not. That is the formulation in Pt 16 r 4 in force before the Registrar, and the same formulation in Pt 3.7 of the Court Rules before me. As identified in the Minister's submissions, in Sansom Spigelman CJ (Mason P, Beazley, Giles and Ipp JJA concurring) emphasised at [60] and [75] that the question what is "fair and reasonable" must be considered in the particular circumstances of the case. The passages in Aldi and Marinkovic relied on by the Applicants are cases where judges in this Court have identified circumstances where they considered the awarding of costs because of amendment to plans as part of the usual conduct of Class 1 proceedings was not fair and reasonable. I note that in an earlier decision in the same proceedings, Marinkovic v Rockdale City Council [2006] NSWLEC 601, Preston J awarded costs in the course of the proceedings because of multiple failures to comply with the Court's timetables and the need to rely on multiple amended plans. While the conduct of the Applicants in these proceedings does not suggest such egregious breaches of the timetable, the large number of plan amendments after October 2006 leading up to the hearing and thereafter suggests the changes needed were far more than appropriate, even taking into account some need for evolution of the development proposed. I consider the observations of McClellan J in Millenium Projects Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 761 at [9]-[10] that costs thrown away when plans are amended are generally payable, continues to be an appropriate approach where the particular circumstances of a case warrant it.
23 The nature of the Applicants' development application changed significantly from that sought at the time proceedings were commenced in October 2005 as is clear from the judgment of Biscoe J of 11 October 2006 where his Honour allowed plans with substantial changes to be relied upon. It was necessary to vacate the first hearing date as a result. The amended plans/proposal were provided a year after the proceedings were commenced. Biscoe J refers in his judgment at [4] to the fact that there had been numerous case managements in the matter up to that point. Several more amendments were required before the Court was able to grant consent on 30 April 2007 well after the hearing date in December 2006. The inadequacies and inaccuracies are identified in the respective Amended Statement of Issues filed by both Respondents in November 2006. Three changes to the plans/proposal occurred before the hearing on 20 December 2006, including the third amended plans/proposal filed at the hearing for which leave to rely on had to be sought. The Commissioner did not consider the plans were in a fit state to approve at the hearing on 22 December 2006. Three further sets of plans/proposals were relied on by the Applicants after the hearing. Costs are only sought in respect of the latter together with any further costs up to the finalisation of the matter on 30 April 2006. As is clear from the brief history above, the amendments made were to both plans and the proposal as detailed in expert reports of J & K and the VMP, inter alia.
24 There has been an unnecessarily large number of plan/proposal amendments as the parties wrestled with the inadequate information supplied by the Applicants through their experts. That inadequacy is directly referred to in the Commissioner's judgment at [26] where he refers to the landscape plans being inadequate. At that stage the only plans relied on by the Applicants were those prepared by their landscape architect Narelle Sonter of Botanica but these purported to deal with more than landscaping and were found wanting by the Commissioner at the hearing and subsequently, as can be seen from the case management orders made by the Commissioner on 22 December 2006 and 12 February 2007, which required numerous plan amendments, inter alia. Further, the Applicants filed without leave the sixth further amended plans/proposal and sought leave after the event to rely on these. The inaccuracies and inadequacies are also apparent when the detailed evidence and submissions of Mr Jackson are considered.
25 The Applicants sought to emphasise that the amendments after 22 December 2006 were brought about because of the Respondents' experts' requirements or because of agreement resulting from the joint conferencing of the experts or because of the Court (in relation to drilling) and were part of an evolution of the proposal before the Court which was part of the usual conduct of Class 1 proceedings. The Applicants also submitted that some of the changes were minor, which is true in relation to the amendments to the VMP required. Many of the other changes were not minor and in any event the large number of changes, even if some were minor, still required the Respondents to incur costs in assessing them. A possible solution to the over-excavation of the site, a concern raised by both Respondents, was raised by the Commissioner at the hearing, namely drilling of pipes underground instead of excavation. This took place after three plans/proposal amendments had already made by the Applicants before the hearing. That the Applicants chose to adopt the agreed position of experts in the proceedings and amend the plans, once again late in the process, does not suggest costs ought not be awarded. Those submissions ignore the history of the matter relied on by the Respondents in relation to the large number of inaccuracies and inconsistencies in the plans/proposals submitted from 11 October 2006 by the Applicants through their experts.
26 It was emphasised in the Applicants' submissions by their counsel that the amended plans/proposal were not due to any particular demand of the Applicants. The Applicants have chosen to pursue an appeal in this Court which, if successful, provided the Applicants with valuable legal rights to develop their property in a certain way. The Applicants chose to engage certain experts to present their case and the way a matter is conducted through their experts is not something the Applicants are separate from for costs purposes. These remarks are directed to the submissions made on their behalf, and are not intended as a reflection on the Applicants' behaviour.
27 I consider it is fair and reasonable in the circumstances of this case that the Applicants must pay the Respondents' costs sought on and from 22 December 2006. The history of the proceedings after that date (and indeed leading up to it) amply demonstrates that the Applicants were required by the Court, or took unilaterally numerous opportunities, to amend the plans/proposal in relation to the development sought in matter no 11203 of 2005. Each of the amendments to plans and the proposal as contained in expert reports, particularly those of J & K relied on by the Applicants after 22 December 2006, required additional work by the Respondents and costs were incurred. I consider the Respondents have been very reasonable in only seeking costs on and from 22 December 2006. Had they been sought, for example, I would have been minded to award the costs thrown away by the change to the amended plans which Biscoe J allowed in October 2006 and reserved costs in relation to.
28 It is not necessary that I find any error in the Registrar's decision but, in any event, I do not. I agree with her conclusions at [95], [97] and [101] in particular.
29 I consider I should order that the Applicants pay both Respondents' costs on and from 22 December 2006. I also uphold the Registrar's decision that the Applicants pay the costs of the hearing before her. As the Applicants have been unsuccessful on this review application they should also pay the Respondents' costs of this application.