Sammut Developments Pty Ltd v Sutherland Shire Council

Millenium Projects Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 761 McClellan CJ; CASES CITED: Aldi Foods Pty Ltd v Holroyd CC [2005] NSWLEC 338 Talbot J; Kennedy & Anor v Woollahra MC [2005] NSWLEC 226

APPLICANT Mr S. Kondilios, solicitor of Maddocks LEGAL REPRESENTATIVES: RESPONDENT Ms E. Rankin, solicitor of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10266 of 2005 Sammut Developments Pty Limited v Sutherland Shire Council

JUDGMENT 1 Commissioner: On 29 September 2005 the Court handed down its judgement in this matter upholding the class one appeal involving the construction of a residential flat building at 18 - 20 Coast Avenue, Cronulla.

2 The respondent Council by Notice of Motion dated 12 October 2005 now seeks the following orders: + That the applicant pays the respondent's costs thrown away by virtue of plans substituted 24 June 2005 and the vacation of hearing dates of 28 and 29 Jul 2005 + That the applicant pays the respondent's costs of the motion. 3 More particularly, in relation to costs thrown away, the respondent seeks expenses and costs totalling as follows: + Costs thrown away by virtue of the applicant's reliance on amended plans and the cost of motion: $6,325. + Half of the fees of Mr Dickson the court-appointed expert for assessing the original plans: $1,500. + Costs associated with the provision of preliminary advice (on plans no longer relied on) to the Court-appointed traffic expert: $1,610. + Preparation for costs hearing: $1,058. 4 The following matters appear to be relevant to the costs application: + The development application was originally lodged with the council in July 2004, + In November 2004 amended plans were lodged with the council, + On 9 June 2005 Mr Dickson, the Court-appointed urban design expert, visited the site and delivered an oral report, + On 14 June 2005 Mr Dickson's preliminary report became available, + On 24 June 2005 at call over the respondent advised that it did not oppose amended plans, provided that the hearing dates were vacated to enable readvertising and subject to council being awarded costs of the notice of motion and costs thrown away as a result of the amended plans and the vacation of the hearing dates. + On 24 June 2005 the registrar granted leave for reliance on the amended plans and vacated the previously allocated hearing dates. The question of costs was stood over to the hearing. + As a result of the amended plans, additional reports were prepared by Mr Dickson and Mr G. Pindar the Court-appointed traffic expert. + The amended plans were renotified. + Following its consideration of the amended application the council and the resident objectors maintained strong objections to the proposal. 5 Mr Kondilios for the applicant submitted that the amended plans were directly responsive to the expert evidence provided by the Court-appointed experts. The scale of changes was not significant hence the extent of additional works to assess the changes was also not significant. Also, even if the changes were significant this does not necessarily mean that extra costs are involved. Because the applicant behaved in a responsive and responsible manner it would not be fair and reasonable to award the costs sought by the respondent Council.

6 Mr Kondilios also submitted that the quantum of costs provided by Miss Rankin was excessive and that an examination of the breakdown of these costs reveals that many of these are not expenses properly associated with a notice of motion for costs.

7 Miss Rankin for the respondent disagreed with Mr Kondilios arguing that there were numerous non-compliances with applicable planning controls and that the changes to the design of the building were significant. The changes include the deletion of one dwelling and the redesign of the floor plans together with other associated external changes. These changes together with the changes to building setbacks required recalculations of the landscaped area and the floor space ratio. As a consequence the amended proposal required further consideration by the Court-appointed experts and the preparation of further reports. The application was also renotified. These matters resulted in the need to vacate the allocated hearing dates.

8 The power to award costs is to be found in s 69 of the Land and Environment Court Act 1979 ("the Act"). Part 16 r 4 of the Land and Environment Court Rules ("the Court's rules") is to control the unfettered costs discretion conferred by s 69(2) of the Act and enables the making of an order for the payment of costs where, in the circumstances of a particular case, it would be fair and reasonable to do so. This does not affect the general principle that costs are not normally awarded in planning/merit appeals.

9 Hence the question to be answered in this case is whether it would be fair and reasonable in the circumstances to require the applicant to pay the respondent's costs thrown away as a consequence of the design changes reflected in the amended plans, renotification of these plans and the vacation of the hearing dates.

10 In Millenium Projects Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 761 McClellan CJ whilst acknowledging the benefits of allowing amended plans in certain circumstances said that: … it is also the case that when amended plans are allowed to be filed, councils may suffer by reason of a need to assess the amended application, with the costs, which have already been incurred in assessing the original application being lost. Those costs may extend to the cost of its lawyers, cost of experts and also the costs of advertisement of the application. The Court has said on a number of occasions that the price, which an applicant can expect to pay, in circumstances where it seeks to lodge an amended application, will be an order for the costs thrown away by reason of the amendment. 11 Of course any order for costs must, in the circumstances of the particular case, only been made if it would be fair and reasonable to do so.

12 In Aldi Foods Pty Limited v Holroyd City Council [2005] NSWLEC 338 ("Aldi"), Talbot J said (at 14): The generation of a succession of amended plans as a consequence of an evolutionary process involving management techniques recently adopted by the Court and the appointment of a Court-appointed Expert (CAE) is not necessarily of itself a matter for adverse comment in respect of reasonableness in the context of a costs application. 13 Hence, simply because an application has been allowed to be changed in manner of amended plans this does not automatically mean that an order for costs will result. It is the consequences of the acceptance of such plans that may or may not trigger such an order.

14 Clearly this case reflects the evolutionary process as referred to in Aldi but this does not necessarily mean that a properly substantiated application for costs cannot or should not be awarded. It is not the process of itself that triggers a costs order but rather whether the financial consequences of the process are reasonable. More particularly it is necessary to decide whether in this case the respondent Council has incurred costs beyond those, which it should reasonably bear. (Kennedy & Anor v Woollahra Municipal Council [2005] NSWLEC 226).

15 Taking into account the extent of the changes revealed by the amended plans it was essential that the application be renotified and that the Court-appointed experts and the council be allowed to consider these plans and the response to the renotification. In the circumstances the vacation of the allocated hearing dates was unavoidable. 16 I agree with the council that the changes were significant. In the circumstances, whilst the amended plans were mainly the result of recommendations made by the Court-appointed urban design expert and were provided in a timely fashion, the consequences of the changes were such as to warrant an order for costs. More particularly the costs thrown away are in my opinion, beyond those that the council should be reasonably expected to bear.

17 It was not argued that any portion of the costs said by the respondent council to have been thrown away might nevertheless have been of benefit in the resolution of the dispute thus warranting a variation on the amounts sought.

18 In all of the circumstances I have decided that it would be fair and reasonable to support council's notice of motion for costs thrown away as a result of the amended plans. However I agree with Mr. Kondilios that the breakdown provided by Miss Rankin is likely to include expenses that are inappropriate for inclusion in an order for costs.

19 Having been successful in its application for costs thrown away, costs associated with the notice of motion should also be ordered in the not unreasonable amount sought. Provisional orders 20 The provisional orders of the Court (subject to the concurrence of the Chief Judge) are that the notice of motion dated 12 October 2005 is upheld and: 1) The applicant is to pay the respondent's costs thrown away as a consequence of the amendments to the development application in the sum agreed, or failing agreement as assessed and 2) The applicant is to pay the costs of the motion in the sum of $1,058. 21 In accordance with cl 10 of the Land and Environment Court Practice Direction 1993 (Directions 1 to 15), the parties are to advise the Registrar within fourteen (14) days whether they wish to make further submissions to the Chief Judge in relation to this matter.

      T A Bly
      Commissioner of the Court
      ljr

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