Roderick John Wilson & Ors v Coffs Harbour City Council

Aldi Foods Pty Limited v Holroyd City Council [2005] NSWLEC 338; Ervin Mahrer and Partners v Strathfield Council (2002) 123 LGERA 24; Grant v Kiama Municipal Council [2006] NSWLEC 70; CASES CITED: Hutchison 3G Australia Pty Ltd v Waverley Council [2003] NSWLEC 449; MacDonald v Mosman Municipal Council No 2 (2000) 107 LGERA 211; Moodley v Botany Bay City Council [2004] NSWLEC 762; Pafburn v North Sydney Council [2005] NSWLEC 444; Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438

APPLICANTS Mr Bennett (Solicitor) SOLICITORS LEGAL REPRESENTATIVES: Pike Pike & Fenwick RESPONDENT G Fernie (Solicitor as agent for) SOLICITORS MBT Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

RODERICK JOHN WILSON, JOY LESLEY WILSON, DARREN RODERICK WILSON, NICOLE BRIDLEY, RONALD EDWARD BUTCHER, MARGARET ANNE BUTCHER, GEOFFREY LEAVER & PAULA LEAVER Applicants

COFFS HARBOUR CITY COUNCIL Respondent

JUDGMENT Jagot J: Introduction 1 Coffs Harbour City Council ("the Council") seeks an order that the applicants pay its costs of an appeal brought by the applicants under s 97 of the Environmental Planning and Assessment Act 1979. 2 The applicants proposed to develop a property known as 786 Pacific Highway, Sapphire Beach, by constructing four two storey dwellings with an associated community title subdivision. The applicants lodged the development application on 2 April 2004. They lodged an appeal against the Council's deemed refusal of that development application on 27 May 2005. The development application remained undetermined by the Council throughout the proceedings. 3 Commissioner Brown heard the appeal on 17 January 2006. The Commissioner delivered judgment on 18 January 2006. The Commissioner made orders dismissing the appeal and refusing consent to the development application. The Commissioner's reasons for decision refer to issues under the headings "overshadowing" and "other issues". 4 With respect to overshadowing the Commissioner at [16] said that: In considering the impact of overshadowing, I agree with the general concerns expressed by Ms Green and Mr Snellgrove. To properly address this issue, it is necessary to know the existing overshadowing impacts. This information was, unfortunately, not available at the hearing. In my view it is not sufficient to simply base an assessment on the impact of the proposed development. 5 Ms Green was a Council officer and gave evidence in the hearing. Mr Snellgrove was a Court appointed town planning expert and also gave evidence in the hearing. 6 The Commissioner referred to the decision in Pafburn v North Sydney Council [2005] NSWLEC 444 to support his conclusion that the overall change in amenity of the neighbouring property was a key consideration. At [21] and [22] the Commissioner observed that: 21. I also note that no details are provided on boundary fencing. The fencing could also potentially impact on shadowing of the adjoining property because of the topography and lot orientation. Because of the limited sunlight currently available to the Dodd property, I am not satisfied that even considering the orientation of the lots, the generous setbacks and height of the dwelling on lot 2, that the relationship with the Dodd property is acceptable based on the evidence presented to the Court. 22. In coming to this conclusion I accept that the proposed development is not without some merit. The issue of overshadowing is the only significant issue in the proceedings and is the result of only the upper level of one dwelling. While attempts were made at the hearing to consider amendments to increase the solar access to the Dodd's property, no obvious solutions were available. It may well be that the level of development sought by the applicant may not be able to be achieved and other design solutions may need to be explored. The Legislative Provisions 7 Insofar as relevant, s 69 of the Land and Environment Court Act 1979 states: (2) Subject to the Rules and subject to any other Act: (a) costs are in the discretion of the Court; (b) the Court may determine by whom and to what extent costs are to be paid; (c) the Court may order costs to be assessed on the basis set out in Div 6 of Pt 11 of the Legal Profession Act 1987 or on an indemnity basis. 8 Part 16 r 4 of the Land and Environment Court Rules 1996 provides that: (1) This rule applies to the following proceedings in classes 1, 2 and 3 of the Court's jurisdiction: (a) proceedings under ss 95A, 96, 97, 98, 109K, 121ZK, 121KZM and 149F of the Environmental Planning and Assessment Act 1979 ... (2) No order for the payment of costs will be made in proceedings to which this rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable. Approach to costs in class 1 proceedings 9 Both parties accepted as correct the observations of Talbot J in Aldi Foods Pty Limited v Holroyd City Council [2005] NSWLEC 338 at [5] that: The Rules make it plain that the approach to an application for an order for costs in class 1 proceedings is fundamentally unchanged from the historical position to the extent that the underlying principle is that there will generally be no order as to costs. Accordingly, unless it is in the circumstances of the particular case otherwise fair and reasonable, the Court will approach the exercise of its discretion on the basis that parties are to remain confident they may commence or defend proceedings without the onerous threat of incurring liability for costs other than their own, even if they are not the successful party. In other words costs will not be awarded in the proceedings referred to in Part 16, rule 4 unless it is fair and reasonable to depart from the underlying assumption in the circumstances of the particular case. Reasonableness is to be determined according to the ordinary sense of the word. The award of costs has to be fair as well as reasonable. Thus not only must it be reasonable for costs to be awarded but it must also be just and equitable. 10 More recently, in Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15], Preston J analysed the categories of case in which orders for costs have been made. This analysis discloses seven broad categories of case, which may be described in summary form as:

(a) where the proceedings cease to have the character of merits review;

(b) where the matter the subject of the costs application involves only a preliminary question of law;

(c) where a party fails to provide or delays unreasonably in providing documents required as part of the application for approval, including statements required by the relevant statute, statements or information required by an environmental planning instrument or information or documents centrally relevant to the development the subject of the application and necessary to enable a consent authority to gain a proper understanding of and to give proper consideration to the application;

(d) where a party has acted unreasonably in the conduct of the proceedings;

(e) where a party has acted unreasonably in circumstances leading up to the proceedings such as effectively inviting the litigation;

(f) where the proceedings or the defence of the proceedings has been commenced or continued where the applicant or the respondent respectively properly advised should have known that it had no chance or very poor prospects of success; or

(g) where a party conducts its case in the proceedings for extraneous purposes. Submissions 11 The Council submits that it is fair and reasonable that an order be made requiring the applicants to pay the Council's costs of the proceedings by reason of the following circumstances:

(1) The Council put the applicants on notice from early on in the assessment of the development application that overshadowing was an issue of concern.

(2) The applicants had numerous opportunities to rectify the deficiencies in the information submitted with respect to overshadowing.

(3) Nevertheless the information which the applicants ultimately submitted remained deficient. In particular, the information did not permit an assessment of the cumulative or incremental overshadowing impact of the proposed development. In this regard, the Court expert had left the overshadowing issue for resolution by another expert (an option that the Council was willing to adopt).

(4) The deficiency in the shadow diagrams was contrary to the requirements of Practice Direction 17 - Pre-Hearing Practice Direction.

(5) The numerous amended plans filed and served by the applicants complicated the assessment process and increased the costs of the appeal overall.

(6) In the event, the Council succeeded in the appeal on the very ground which it had notified to the applicants from the outset. 12 Practice Direction 17 relevantly provides in [26] that: Requirements for Plans (26) Where plans of any development are to be tendered to the Court, they should generally meet the requirements identified in schedule B. Plans not filed with the application must be filed with the Court at least seven days before the hearing. A failure to comply with these requirements may justify an order for costs.

Schedule B relevantly provides that: Overshadowing plans are to: · be based on true north; · indicate the location and nature of existing and/or proposed fencing with the shadows projected; · indicate horizontal and vertical impact including any impact from any substantial wall; · provide a table of compliance and non-compliance with known criteria (such as a DCP, SEPP 65 or AMCORD); · make appropriate allowance for the topography. 13 The applicants submit as follows:

(1) The starting point is that there should be no order for costs in these proceedings.

(2) There was no circumstance in this matter making an order for costs fair and reasonable.

(3) The applicants had lodged supplementary information and amended plans in response to the issues raised by the Council.

(4) The applicants responded to a letter from the Council's solicitors of 5 August 2005 (which quoted from Practice Direction 17 without identifying that Practice Direction as the source of the quote) in a letter dated 10 August 2005. That letter included further information with respect to overshadowing. The Council did not respond to that information by identifying it as inadequate.

(5) The Council had not particularised its concerns with the overshadowing information lodged by the applicants in any meaningful way. It did not refer to Practice Direction 17 in its statements of issues but, rather, relied on its DCP.

(6) In the proceedings the Court expert agreed that the information provided in fact complied with the DCP. The DCP requirements were themselves inconsistent with Practice Direction 17.

(7) The Council originally raised 11 issues (with additional sub-issues) in the proceedings. The applicants were successful on 10 of the 11 issues.

(8) The development application was not unmeritorious as the Commissioner observed.

(9) The appeal was lodged against a deemed refusal more than twelve months after the development application was first lodged with the Council. Conclusions 14 I accept the principle that it would ordinarily be fair and reasonable that a party who, by its conduct in failing to provide information required by a development application or that is centrally relevant to the development the subject of the development application, causes another party to incur unnecessary additional expense, should, by paying costs, compensate that other party for that unnecessary additional expense (see, again, Grant v Kiama Municipal Council [2006] NSWLEC 70 at [69]). 15 I do not consider that the facts of this matter fall within this category of case for the following reasons:

(1) The applicants had provided to the Council, on the Council's request, additional information relating to overshadowing. The issue was not the provision of information centrally relevant to the assessment of the development application, but the adequacy of that information.

(2) Although the Council's solicitor had quoted the substance of the relevant parts of Practice Direction 17 in the letter of 5 August 2005, the applicants had responded in the letter of 10 August 2005. Thereafter the statement of issues and amended statement of issues relied on by the Council did not identify with particularity any alleged inadequacy of the overshadowing information as now relied upon to found the costs application (or, indeed, as found by the Commissioner).

(3) Moreover, issue 10 ("the proposal fails to provide adequately detailed plans in relation to overshadowing"), in fact, was deleted by the Council in its amended statement of issues.

(4) The remaining references to the issue of overshadowing in the Council's statements of issues were not expressed in a manner consistent with Practice Direction 17 (at [8b]) which provides that: Where non-compliance with a provision of an environmental planning instrument or development control plan is alleged, the Statement of Issues must not merely refer to non-compliance with the provision. The nature and extent of the non-compliance must be clearly identified and, where practicable, quantified. If more appropriate, the non-compliance may be identified in plan form.

(5) The issues pressed by the Council in its statement of issues were issue 2.8 ("the applicant's amended shadow diagrams do not adequately demonstrate compliance with (the) DCP") and issue 5 ("the proposal creates unacceptable overshadowing and loss of solar access to the southern adjoining neighbours' properties"). Although the Court expects parties to comply with its Practice Directions (including the information required to be shown in plans such as shadow diagrams), the fact is that in this matter the Council, having raised the substance of the Practice Direction in its letter of 5 August, did not thereafter particularise in its statement of issues any deficiency in the information supplied by the applicants except by reference to its development control plan.

(6) The Court appointed expert planner, Mr Snellgrove, at the time of writing his report, was satisfied that the applicants' information complied with the development control plan. While Mr Snellgrove did not express a final opinion on the accuracy of the shadow diagrams and suggested that another expert may be appropriate to address that issue, based on the information available to him, he nevertheless observed that there appeared to be "consensus" that the shadow diagrams were as "close to accurate as possible". Mr Snellgrove's opinion may have altered by the time of the hearing having regard to the references in [13] of the Commissioner's reasons, but can it be characterised as unreasonable for a party to have proceeded to hearing when the information then available included a report of a Court appointed expert to the effect that the information provided with the application complied with the development control plan?.

(7) Although the Commissioner refers to the deficiencies in the shadow diagrams in [16] of his reasons for decision, it is plain from the matters set out in [22] that the Commissioner was able to make an assessment of impact and decided that the impact was unacceptable. That is, the Council succeeded with respect to issue 5 (that the proposal created unacceptable overshadowing and loss of solar access). The Council succeeded on a merit issue in the ordinary course of the assessment and determination of an appeal under s 97 of the Environmental Planning and Assessment Act 1979. 16 I do not consider that these facts, in the context of the course of these proceedings taken as a whole, disclose an applicant unable or unwilling to provide information centrally relevant to the assessment of the development application and the disposition of the appeal. 17 In the circumstances of this matter, particularly: - (i) the applicant's letter of 10 August 2005, (ii) the terms of the original statement of issues which included issue 10, (iii) the terms of the amended statement of issues including the deletion of issue 10, and (iv) the substance of the report of the Court appointed expert, I do not consider that the applicants acted unreasonably in proceeding to hearing on the information available at the time. In the event, the information was characterised by the Commissioner as inadequate. Considered in conjunction with the other information available to the Commissioner, the Commissioner decided that the overshadowing impact was unacceptable - which led to refusal of the development application. The circumstance of refusal of the development application on its merits in the ordinary course does not sound in an order for costs against the applicant. 18 I also do not consider the lodgement of supplementary information and amended plans throughout the course of this matter, in the circumstances, to disclose any occasion for an exercise of discretion on the issue of costs in favour of the Council. I consider that the information was lodged in response to issues raised by the Council. Although both parties may have incurred costs by reason of the provision of that information, it is not irrelevant that the hearing of this matter was completed in one day in circumstances where, as the Commissioner's reasons disclose, overshadowing remained the only significant issue for determination. That is, the issues were reduced in number and scope by reason of the additional information submitted. I do not consider the course of conduct by the applicants in this matter, in seeking to address issues raised by the Council and thus reduce the length of hearing, to have been unreasonable. 19 In the result, I do not consider that it is fair and reasonable in the circumstances of this particular case that an order for costs should be made against the applicants. I consider that each party should pay its own costs of the class 1 appeal. I propose so to order. 20 At [74] in Grant v Kiama Municipal Council [2006] NSWLEC 70 Preston C identified a number of decisions of this Court in which the successful party to a motion for costs has been awarded its costs of the motion (namely McDonald v Mosman Municipal Council No 2 (2000) 107 LGERA 211 at 215 [17] - 216 [19]; Starray v Sydney City Council (2001) 112 LGERA 438 at 447 [55]; Ervin Mahrer and Partners v Strathfield Council (2002) 123 LGERA 24 at 41 [81]; Hutchison 3G Australia Pty Ltd v Waverley Council [2003] NSWLEC 449 at [21]; and Moodley v Botany Bay City Council [2004] NSWLEC 762 at [4] and the cases cited therein). 21 From the applicants' perspective, the applicants have been wholly successful in defending the Council's motion. The applicants did not have legal representation in the proceedings but were represented on the motion. The Council submits that in the particular circumstances of the matter including its complex history, it was not unreasonable for the Council to bring its notice of motion seeking an order for costs and that no order for costs on the motion should be made against it. 22 In circumstances where a party has been wholly successful in defending a motion for costs, I consider that the ordinary principle of compensation for the successful party is entitled to significant weight. Accordingly, I consider that the applicants, having been successful in defending the motion brought against them, should be compensated for the costs of so doing. As a result I propose to make, and make, the following orders:

(1) The respondent's notice of motion dated 25 January 2006 is dismissed.

(2) The respondent is to pay the applicant's costs of the respondent's notice of motion dated 25 January 2006 as agreed or as assessed.

(3) The exhibits on the motion (Exhibit A and Exhibit 1) are returned.

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