[2008] NSWLEC 103
Community Association DP270253 v Woollahra Municipal Council (2015) 207 LGERA 268
[2015] NSWCA 80
Dunford v Gosford City Council (No 3) [2015] NSWLEC 96
Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45
[1990] HCA 59
Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156
Marinkovic v Rockdale City Council (2007) 151 LGERA 385
[2007] NSWLEC 71
McDonald's Australia Limited v Ashfield Council (No 2) [2012] NSWLEC 268
Port Stephens Council v Sansom (2007) 156 LGERA 125
Source
Original judgment source is linked above.
Catchwords
[2008] NSWLEC 103
Community Association DP270253 v Woollahra Municipal Council (2015) 207 LGERA 268[2015] NSWCA 80
Dunford v Gosford City Council (No 3) [2015] NSWLEC 96
Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45[1990] HCA 59
Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156
Marinkovic v Rockdale City Council (2007) 151 LGERA 385[2007] NSWLEC 71
McDonald's Australia Limited v Ashfield Council (No 2) [2012] NSWLEC 268
Port Stephens Council v Sansom (2007) 156 LGERA 125
Judgment (9 paragraphs)
[1]
The Applicant
Mr Doyle responded both in writing (pars 20-27, 32, 36 and 37), and orally. His written submissions say:
20 The DA was amended on a number of occasions with the Court's leave, with the amendment on each occasion responsive to issues raised by the Council.
21 On each occasion the proceedings were adjourned, the adjournments were allowed by consent presumably because both parties agreed that conciliation was preferable to the cost and uncertainty of a hearing. The extended process of negotiation between the parties was consented to and permitted by the Court having regard to the complexity of the [DA].
22 The result of these negotiations between the parties was a major reduction in issues to the point where there was no hearing on the merits and the contest was reduced to an adjudication of the parties' respective positions in relation to conditions.
23 ... The outcome of the proceedings was mixed, with the applicant obtaining a development consent that it could not have obtained without the intervention of the court.
24 Significantly, in relation to many issues, the ultimate design of the proposal was substantially dependent on Council decision making. Specifically, a major road intersection had to be redesigned with a new complicated round-about installed. Design of that round-about was necessarily a collaborative process. So [too], the design of the internal drainage basin, and whether there ought to be one or two basins was dependent upon developing Council infrastructure. The Council's original position that there be two basins and that the development could not proceed without an easement and design which connected the basin to a neighbouring property was dropped partly through witness conferral and partly through the determinations of the Commissioners.
25 The number of amendments made to the plans was a factor of the Council insisting that it would not permit its experts to consider any iteration of the scheme inside or outside of the s.34 process unless the material was filed in Court. That requirement had the effect of increasing the number of filed amendments during a negotiation process which was proceeding by consent.
26 Where plans were amended by more than a minor extent, costs under s.97B of the Act were allowed, and an order to allow for the final amendment was consented to by Council.
27 In terms, the orders made in that regard compensate the Council for all costs thrown away by any significant amendment made to the plans. Where the proceedings can only be construed as a settlement with give and take on both sides, and with a mixed judicial determination of remaining issues, there is no sufficient ground to expand upon the costs orders already made.
...
32 At a simplistic level, it might be said that the Applicant has been successful. The appeal has been upheld and many conditions which the Council had advanced were rejected by the Court. However, the case is better presented as a compromise outcome. Through the conclave process, sensible concessions made during extensive conciliation consented to by the parties, and through an adjudication of remaining non-determinative issues, an approval was reached which both parties can accommodate.
...
36 The history of the present proceedings demonstrates that the Council itself has been responsible for delays in the proceedings. Examples are set out in the Affidavit of Amanda Patricia Johnstone sworn 9 February 2018 at paragraphs [38] - [51] including:
a. Council's Statement of Facts and Contentions was filed 11 days late;
b. Council's Amended Statement of Facts and Contentions was filed 12 days late;
c. On 4 March 2018 (sic), the Court ordered Council to provide a response to the applicant's amended plans and documents by 9 March 2016. Council's response was not provided until 15 March 2016;
d. Council's draft Conditions of Consent were due on 28 October 2016, but were not served until 15 December 2018, 7 weeks late;
e. Council delayed in providing a response to the applicant's plans amended in accordance with the 3 March Judgment.
Outcome in the present proceedings
37 The judgment of Commissioners Brown and Dickson was delivered on 3 March 2017. The outcome reflected a result which was favourable to both the applicant and the Council on different issues. The applicant's Development Application was approved and issues in dispute in relation to the final form of conditions were resolved, with both parties succeeding and failing on different areas of argument.
Mr Doyle said during his oral submissions:
1. (Tp33, LL18-22):
... there is work done in this case in relation to which costs ought be ordered, but there is another part to this case which served a useful purpose in which the planning purposes of this Court in relation to the development application, including its amendments, was usefully performed.
1. (Tp34, LL29-36):
... both the amber light aspect and also the conclave aspect, as matters which may oblige a party effectively to adopt an amendment which has been agreed to by experts conferring and agreeing pursuant to a direction of the Court, and that is what happened here. The Court directed the experts to meet. The experts met and agreed, and the applicant made, at least, some of the important amendments, and the council - also the council made a number of its concessions to adopt what was the result of that procedure.
1. (Tp35, LL16-21):
Now, given that those orders have been made, made by consent, and at least one case quantified and paid, we must be in a situation where we're looking at the difference between the orders that have been made, the additional order that my client has said it's accepting of by way of open offer made in the submissions today, and working out whether that is a fair resolution of the complaints of the council.
1. (Tp37, LL27-30):
... we say there are aspects to the chronology in which either the council might be responsible for some delay or at least that the matter complained of should not be attributable or seen as attributable to some fault of the applicant.
1. (Tp37, LL35-50):
... the applicant should not be criticised for that part of any amendment of documents whilst it is part of a court-directed negotiation process. ... the whole purpose of a conciliation process is to allow the parties to explore settlement; that they should not be constrained in the way that they do that.
If the applicant produces during a conciliation process various options and changes to the plans, it is always open to the council to terminate that process, if it sees that as appropriate, but we would say that it's very different in character to the ordinary conduct of an appeal where I guess you do need to put your knife in the ground at some point and be judged. If you move away from that, there's a general proposition that you should pay costs attributable to amendment, but I don't think that principle does apply in a conciliation setting, nor ought it, because otherwise an applicant that sees a way that it might be able to, through conciliation, reduce issues, perhaps solve the complaints that are levelled against it by the council.
1. (Tp38, LL9-14):
... an applicant might say, "Well, how about I do this to solve your problems, council? How about I do this?" Now, the fact that the applicant has done that through a new addition of the plans, shouldn't be criticised. It may have frustrated the council, but for all of that where it is done within the conciliation process, the applicant would say is oughtn't be criticised, or at least it oughtn't have the same principles applied to it.
1. (Tp41, L41-p42, L44):
So this plan, as with many of the plans that there is complaints of, it's just the applicant producing in pictorial form its answer to queries raised by the council. Now, your Honour, it's just simply not fair to simply count the number of plans that are provided to the council because that doesn't necessarily say that each time that the applicant sends a plan that it is amending its application. Your Honour, I can you can imagine quite clearly that in some instances the best way to simply confer or conciliate with the council is to produce a drawing. ... It's where substantial amendments are made that the rules mandate the making of a costs order. ... If the plan was being submitted to revise - to describe pictorially to say just one corner of a road to show that the truck can go around it, that doesn't mean that it's an amendment to the application.
... there was (sic) significant communications between both sides, and ... some of those communications were made pictorially ...
1. (Tp44, LL13-17):
all of the adjournment were by consent. My friend says that's because the council is the model litigant, but we say ... that's because at each step along the way progress was being made towards a resolution, so it was not only good manners that led to the adjournment but also good sense.
1. (Tp45, LL39-41):
So these are not simple matters. It's a 152 lot subdivision. This is not a matter where the applicant is simply changing its mind to obtain some extra yield. This is very complicated and technical work.
1. (Tp47, LL39-31):
... to criticise the applicant for sending any additions of drawings is just not accurate. It's not a fair presentation of the real process that was going on.
1. (Tp50, LL23-28):
... there were continued communications with the council ... but it's not necessarily something where the applicant has done something so extraordinary as to receive an order for costs which goes beyond the costs of the amendment.
1. (Tp61, LL37-44):
... to adopt a position where - just because the council has asked for a document and ultimately it becomes relevant that that becomes sufficient, that you should pay the whole costs of the case is not a proposition that should be adopted by the Court. Nor that an applicant who in every time it sees an issue raised by the council sends over a plan in the hope of resolving that issue should not likely be criticised. That doesn't say that when that method of communication turns into a substantial order that the ordinary rules apply.
1. (Tp62, LL21-25):
the proceedings were useful. They proceeded on a rational basis. The applicant proceeded through making senior experts available to resolve issues. They weren't resolved all in the applicant's favour or the council's favour. They're matters that came before the Commissioners - weren't resolved in the applicant's favour or the council's favour.
Mr Doyle's underpinning submission is that the litigation, as conducted by the Applicant, served "useful purposes", and led to "good outcomes" (see generally at Tpp39-41). He also sought to distinguish (at Tp43, LL41-42) between "additional" and "amended" materials produced in the context of the s 34 process.
Mr Doyle said of the ongoing negotiations (Tp51, LL47-48): "outside the context of a costs hearing, nothing seems particularly extraordinary about that ...", adding (at Tp54, LL12-13) that:
This is just a process that's being undertaken to good purpose to resolve a complicated subdivision.
Of the developing antagonism evident in the negotiations, he says (Tp53, LL15-17):
It is not uncommon in this litigation for the applicant and the council both to think that the other is being unreasonable or difficult. It's just the nature of litigation.
He generally argued that such costs as are appropriate are already the subject of s 97B orders (see generally Tp57).
If, on applying the appropriate tests, the Court finds a case for additional compensation to Council, "that couldn't be more than $10,000" (Tp60, especially LL39-48).
He concluded (Tp62, LL27-30):
There was a need for this litigation, and, therefore, the Court could not conclude that the applicant should pay all of the costs, and the offer it's made is an appropriate one for those matters where blame can be laid on the applicant.
[2]
F: Consideration
The parties basically agree upon the principles to be applied, and I will now quote from some of the authorities to which counsel referred.
[3]
The Authorities
In Marinkovic, to which the relevantly similar 1996 Court rules applied, Preston ChJ noted (at [21]) that Class 1 matters often involve "the generation of amended plans as a consequence of an evolutionary process", and then said (at [22]-[23]):
22 There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs.
23 Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment. This case is a good illustration. The multiple amendments that were made by the applicant prior to 19 September 2006 is an illustration of where an applicant has stepped outside what can be reasonably expected in the usual conduct of a class 1 appeal.
His Honour did not accept ([26]) that there is "an inviolate rule that an order for costs should always be made whenever there is an application to amend", but said that:
there must be some capacity for an applicant to respond to the evidence and the concerns of the Court. This should be seen as part of the usual conduct of proceedings. Where making that amendment does lead to costs thrown away, then there may be some justification for making an order ...
In Universal Childcare Pty Ltd v Leichhardt Municipal Council ("Universal") [2008] NSWLEC 277, I surveyed key authorities, including (at [13]) Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141, in which Talbot J said (at [5]):
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.
I noted (at [6]) what has become known as the "non-discouragement" principle "underpinning the basic rule or presumption that there be 'no order'", and then added:
That principle requires the court to be careful not to act in such a way in relation to costs that it will discourage applicants entitled to appeal from doing so because of the risk or threat that failure would more likely result in an order for costs against them.
I then noted (at [14] and [54]):
14 It is only when the facts are clear that the principles can be applied. In the present case there is an extraordinary volume of documentary evidence before the court, and competing sworn evidence from the solicitors for the parties on the significance of those documents and particular events ...
...
54 In adversarial proceedings the principle that "costs follow the event" has a big influence on the parties, not least on settlement of the dispute. On the other hand, the "non-discouragement" principle (see par [6]) underpins the "fair and reasonable" test this court applies in planning appeals.
In my conclusion I said (at [71]):
While the present case may not be seen to be as serious a breach of "the usual conduct of a class 1 appeal" process as Marinkovic, I am satisfied that it is fair and reasonable for the Council to recover costs which would otherwise not be incurred in an appeal of this type. While I could set a particular date, or adopt some other formula as the various authorities I have surveyed suggest, I am satisfied that the principal order suggested by Mr Ayling is appropriate, in the sense of being fair, just, reasonable and equitable (as required by the authorities), in all the circumstances.
Mr Eastman, who had appeared in Universal, reminded me in the present case (Tp31, LL20-43) that, during argument in Universal, there had been discussion about the concept of what the Council lawyer called the "usual 'argy bargy' that goes on between an applicant and Council" in development assessment, as they work, hopefully collaboratively, towards "an appropriate environmental outcome".
Mr Eastman's argument in the present case is that what occurred here, as in Universal, went beyond such "usual 'argy bargy'", or beyond what Marinkovic says is "the usual conduct of a class 1 appeal".
In Arden Anglican School v Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103, Biscoe J said (at [9]):
In the context of the presumptive rule that there will be no order as to costs in planning appeals, the power to make a costs order is in the broadest of terms, that is, what is "fair and reasonable in the circumstances". All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the Court, they are of sufficient weight to overcome the presumptive rule. ...
In Valoth v Parramatta City Council (No 2) [2012] NSWLEC 161, I applied the principles I had summarized in Universal, and dismissed an application for costs. I found "no unreasonable, irrational or improper conduct" on Council's part, and I also awarded to Council its costs on the costs NOM, as I was not satisfied it was reasonable for the Applicants to seek a costs order (see [118]-[121]).
In McDonald's Australia Limited v Ashfield Council (No 2) [2012] NSWLEC 268, I dismissed the Council's application for costs on the basis of the above principles.
In Dunford v Gosford City Council (No 3) ("Dunford") [2015] NSWLEC 96 I dealt with a series of Court of Appeal decisions on orders for costs in Class 1. That Court noted, in Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299, at [51], that the formulation "fair and reasonable" requires the Court to make a judgment rather than exercise its wide discretion (Dunford at [30]d.), and that the circumstances identified in Rule 3.7(3) are neither prescriptive nor exhaustive ([30]f). Each case clearly turns on its own facts and circumstances.
In Community Association DP270253 v Woollahra Municipal Council (2015) 207 LGERA 268; [2015] NSWCA 80, Barrett JA, delivering the judgment of the Court of Appeal, distinguished (at [53]) between the unreasonableness of conduct, related the particular proceedings, with which Rule 3.7 is concerned, from "unreasonableness" affecting the decision challenged in the proceedings. His Honour said (at [55]):
The Association chose to bring Class 1 proceedings and thereby to enter an arena to which rule 3.7 applied. That being so, it could not (and did not seek to) argue simply that costs should follow the event. It was required to establish that some aspect of the conduct of the Council as a litigant in the Class 1 proceedings made it fair and reasonable that the judge should cause the prima facie position prescribed by rule 3.7(2) to be replaced by a situation in which the Council was required to pay the Association's costs. The Association has, in my opinion, failed to establish this. ...
In November 2017, Pain J dismissed a costs claim in Hunter v Central Coast Council [2017] NSWLEC 154, which concerned the Avoca Beach Theatre. Her Honour noted (at [38]) that:
... despite the presumptive rule in r 3.7 of the Court Act, a comparison of the interests of the parties in planning appeals suggests that an unsuccessful consent authority should be more likely to suffer an adverse costs order than an unsuccessful applicant ...
[4]
The present case
In the present case I am satisfied that the Applicant has infringed the appropriate standards the Court should apply to the conduct of a Class 1 appeal.
That infringement must sound in costs, but the Court must decide to what extent.
Section 97B orders have been made, on a piecemeal basis to compensate Council for particular transgressions of the norm during the case, but I must now take an overall view of the Applicant's conduct, not to punish the Applicant, but again to compensate the Council.
The original DA documents (March 2015) were patently inadequate. The original Class 1 appeal documents (September 2015) were also inadequate. During consideration of the amended application (filed April 2016) several suites of documents embodying contradictions were put before the Court, but the July 2016 hearing could not proceed, despite fifteen months to prepare.
The Applicant then put on material which went beyond a variation and was "actually inconsistent" (Tp17, L16) with the substance of the application as it had evolved before the Council and the Court.
Both the Council and the Court must be able, at all times, to respond to, and assess, what is actually sought by an applicant.
The Applicant was wrong "to provide reams of inconsistent material in multiple versions and not squarely say this is my application" (Tp17, LL33-34), and Council was clearly correct to insist that such a major amendment should be sought by NOM.
As at 6 December 2016, the available material was (still) rightly considered "inadequate" and/or "inaccurate", and further new amending material was provided up to and including a hearing on 19 December 2016.
In some instances Council waited more than a year for information for which it consistently asked during that time (Tp23, LL10-15), and which really should have accompanied the original DA.
Such delays had "significant cost consequences" for the Council as the case proceeded.
The Court was prepared to grant, on 3 March 2017, a conditional approval, but further "argy bargy" was required to finalize the conditions, and further amendments were made to achieve final orders.
Even three months later again (June 2017), the Commissioners felt the need to give the Applicant "one more chance" (Tp27, LL27-28) to complete its submission of appropriate documentation to enable a decision.
Final orders could not be made until 16 August 2017.
[5]
Findings
Clearly the Council is entitled to compensatory costs.
The Court has in effect been asked to signify whether a further payment of $10,000 is sufficient additional compensation to the Council, which assesses its total costs at well over $100,000 ([12] above).
I do not consider the amount offered to be sufficient, but, on the other hand, I should not play the role expected of a costs assessor.
Nor am I persuaded that I should limit the Council's entitlement to costs to a particular period, or to a particular percentage of its total costs.
However, I am not satisfied that such minor delays as might be blamed on the Council amount to "disentitling conduct" on its part.
Accordingly, I have decided to order the Applicant to pay the Council's costs of the whole proceedings on a party-party basis, as agreed or assessed.
[6]
Costs of the costs hearing
I must turn then to consider, finally, the parties' costs on the NOM.
As the Council has been entirely successful in its quest for costs, the costs of that quest should follow that "event", also on a party-party basis, as agreed or assessed.
[7]
Conclusion
The relief sought in the NOM should be granted.
[8]
G: Orders
The Orders of the Court are as follows:
1. So far as it may be required, leave is granted to the Respondent to file its Notice of Motion for costs more than 28 days after the Court made its final orders in this appeal, namely on 27 October 2017.
2. The Applicant is ordered to pay the Respondent's costs thrown away as a result of amending the development application on 19 December 2016, pursuant to section 97B of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
3. The Applicant is further ordered to pay the Respondent's costs of the proceedings on a party-party basis, other than in respect of which the Court has already made costs orders, as agreed or assessed.
4. The Applicant is also ordered to pay the Respondent's costs of the Respondent's motion for costs, including the costs of the hearing on 26 February 2018.
5. The Exhibits are returned, including YAK-1, APJ-1, A1, and A2.
[9]
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.
Decision last updated: 27 July 2018
Parties
Applicant/Plaintiff:
Statewide Planning Pty Ltd
Respondent/Defendant:
Penrith City Council
Cases Cited (25)
Leave required?
The company resists the leave sought in par 1 of the NOM, on the basis of the Court's Practice Note for Class 1 Development Appeals, (22 March 2017), which mandates (in par 106) that such costs applications should be filed within 28 days of "final orders".
The chronology of relevant events is not really disputed, but the respective counsel seriously contest the effect or significance of various events, in costs terms.
Council saw the need to collate an extraordinary mass of documentary material, to be verified and filed in support of its NOM, and I accept that that exercise took some time.
The length of the delay (16 August to 27 October 2017), although regrettable, and the reason for it, have been adequately explained. Clearly, the Council has an arguable case for a costs order, and there is no serious prejudice to the Applicant if the NOM proceeds. The tests in Tomko v Palasty (No. 2) (2007) 71 NSWLR 61; [2007] NSWCA 369, at [55] per Basten JA, have, therefore, been satisfied. (See competing arguments at Tp58, L8-p59, L38, and p64, L22-p65, L42.)
Insofar as the Court's leave may be required to bring the motion after the 28 days had expired, I am prepared to grant it.
B: Costs in Class 1 - the law
Costs are compensatory, and not punitive, in character: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59.
Section 97B of the EPA Act relevantly provides (emphasis added):
Costs payable if amended development application filed
(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).
(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
(3) The regulations may provide for circumstances in which subsection (2) does not apply.
(4) This section has effect despite the provisions of any other Act or law.
The threshold question in any application for s 97B costs is whether the amendment allowed is "minor", and some principles to guide that decision were articulated by Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council ("Futurespace")] (2009) 169 LGERA 45; [2009] NSWLEC 153, at [42].
Rule 3.7 of the Land and Environment Court Rules 2007 "essentially mirrors what Preston Ch J said in Grant v Kiama [Municipal Council [2006] NSWLEC 70]" (Tp10, LL4-6), and relevantly provides (emphasis added):
Costs in certain proceedings (cf Land and Environment Court Rules 1996, Part 16, rule 4)
(1) This rule applies to the following proceedings (except for appeals under section 56A of the Act):
(a) all proceedings in Class 1 of the Court's jurisdiction,
...
(2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:
...
(b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents:
(i) that are required by law to be provided in relation to any application the subject of the proceedings, or
(ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application,
(c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,
(d) that a party has acted unreasonably in the conduct of the proceedings,
(e) that a party has commenced or defended the proceedings for an improper purpose,
(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:
(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or
(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
The Court's first judgment
On 3 March 2017, Commissioner Brown delivered the Court's first of two judgments in these proceedings ([2017] NSWLEC 1133 - Exhibit YAK-1, tab 52). At paragraphs ([22] to [26] of that judgment, the Applicant was required to amend its plans to the Respondent's satisfaction, within three weeks (Koprivnjak par 67). At par [97], after reviewing Futurespace, the Commissioners said:
... As it is agreed that the changes are not minor and we find that the applicant is to pay the respondent's costs, as agreed or assessed, under s 97B of the EPA Act. Following compliance with the directions, this will be formalised in the final orders.
Contrary to Mr Doyle's suggestion (Tp33, L31), that March 2017 judgment does not qualify as an exercise of this Court's "amber light" approach, as to which see Marinkovic v Rockdale City Council [("Marinkovic")] [2007] NSWLEC 71, 151 LGERA 385, and my decisions in Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156, and Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19.
On 16 March 2017, the Respondent's solicitors emailed the Applicant's solicitor informing him that the Respondent was preparing conditions in light of the 3 March judgment, which could not be finalised until the Applicant provided agreed amended plans in accordance with the 3 March judgment (Koprivnjak par 68).
On 20 March 2017, the Applicant's solicitor responded to the Respondent's solicitors, indicating the amended plans required by the judgment would be completed by Friday, 24 March 2017, and as such proposed a Court communication seeking a variation to the timetable ordered in the 3 March judgment (Koprivnjak par 69, and Exhibit YAK-1, tab 53). On 21 March 2017 Council provided amended conditions (chronology p18).
As at 24 March 2017, the Applicant's solicitor had not provided any further amended plans (Koprivnjak par 71).
Instead, between 26 and 28 March 2017, inclusive, the Applicant provided a number of sets of plans purportedly amended in accordance with the 3 March judgment (Exhibit YAK-1, tab 54), but Mr Eastman says (par 48) that "these were provided in such a way that it was neither certain nor explained how these were in accordance with the 3 March Judgment".
On 27 March 2017, the Applicant's solicitor provided to the Respondent a draft set of conditions, purportedly in accordance with the judgment (Koprivnjak par 75).
On 3 and 5 April 2017, the Respondent's solicitors again asked the Applicant's solicitor to provide the Respondent with a complete suite of plans, amended in accordance with the 3 March judgment (Koprivnjak par 78).
On 7 April 2017, at 6:00pm, the Applicant's solicitor responded with an email containing a link to a set of plans. Mr Eastman says (par 50) that the link was not properly provided until 11 April 2017 (see also Koprivnjak pars 79-82, and Exhibit YAK-1, tab 55).
The Court's second judgment
On 16 August 2017, and after final amendment of the plans, final judgment (No 2) was given, and final orders made, in these proceedings ([2017] NSWLEC 1440 - Exhibit YAK-1, tab 68).
Mr Koprivnjak observes (par 101):
In the Final Judgment the Commissioners made no further comments about section 97B costs, but also made no order for the payment by the applicant of the respondent's costs under s97B of the [EPA Act].
Between 16 August and 1 September 2017, the respective solicitors corresponded about, and the Court finalized, the "correct" conditions to be attached to the orders (Koprivnjak par 103, and Exhibit YAK-1, tab 69).
Mr Doyle submitted (Tp55, LL26-29, and 41-42):
... seeing the applicant obtained a development with conditions that were different to those which the council urged, there had to be a hearing, there had to be submissions, there had to be a court process and there had to be a judgment, ... [and] council is ultimately successful there in obtaining a deferred commencement condition.
Mr Doyle notes (par 44) that, apart from costs orders to which I have referred in the above chronology, "no issue as to costs in the litigation was raised by the Council after [those] final orders were made", until the present NOM was filed on 27 October 2017. Johnstone says (pars 49-50) that it was filed on 30 October 2017, "with no notice ..., nor indeed any other correspondence from the Respondent ...".
On 7 and 13 April 2017, notwithstanding the emails between the solicitors, the Applicant's consultants emailed the Respondent's planner purportedly submitting documents in accordance with the conditions of consent, but not in accordance with the 3 March judgment, and seeking confirmation of an amendment to the subdivision plan (Koprivnjak par 83, and Exhibit YAK-1, tab 56).
By 19 April 2017, the Respondent's experts had reviewed the plans and documents provided, as at that date, and the Respondent's planning expert emailed the Respondent's solicitors indicating (Exhibit YAK-1, tab 57) that:
The information now significantly amended is unsatisfactory in its detail, accuracy and the resulting drainage and finished ground level outcomes. The civil design amendments are contradictory to agreements reached during the hearing with respect to landscaping, drainage and traffic contentions and renders the proposal non supportable again.
On 21 April 2017, the Respondent's solicitor emailed the Applicant's solicitor to inform him that they were instructed that the documents provided by the Applicant were unsatisfactory in detail, accuracy, and, to the extent that they are legible, had not been prepared in complete accordance with the judgment. He sought to have the matter relisted (Koprivnjak par 85, and Exhibit YAK-1, tab 58). Johnstone counters (par 42) that "the applicant's solicitor contacted the Court to relist the matter as conditions of consent could not be agreed. The applicant's solicitor requested a response from Council to the updated material and conditions provided by the applicant".
On 28 April 2017, the matter was relisted before the Registrar, on which occasion the Respondent's solicitors made an application for the Respondent's costs flowing from a default of the Court's order of 3 March 2017. The Applicant had appointed new solicitors at this stage (Koprivnjak par 87, and Johnstone pars 1 and 36).
On 2 May 2017, Council's engineer's comments were provided to the Applicant (Johnstone par 42).
Between 2 and 26 May 2017, the solicitors corresponded regarding links emailed to Council's representatives on 2, 9 and 12 May 2017 with amended conditions and plans (Koprivnjak par 90, and Exhibit YAK-1, tab 62). Johnstone counters (par 43) that "on or about 9 May 2017, amended documents were provided to Council's solicitor following Council's comments and in accordance with the Judgment. The plans were already agreed between the experts before the hearing. I suggested to Council's solicitor that any further amendments suggested by Council could be made at Construction Certificate stage".
Johnstone deposes (pars 44-45):
44 On 10 May 2017 I had a telephone conversation with Council's solicitor. Plans and documents were then further amended as requested by Council.
45 On 23 May 2017, I requested Council's response to the amended plans. On 24 May 2017, I requested contact details for Council's engineer so that the applicant could speak with Council's engineer directly.
By order of the Registrar, on 17 May 2017 (Exhibit YAK-1, tab 60), the Applicant paid costs of $2,673.40 (Doyle par 43, Koprivnjak par 88, Johnstone par 37, and Exhibit YAK-1, tab 61), and the matter was to be relisted before the Commissioners on 26 May 2017 (Koprivnjak par 89).
On 26 May 2017, before the Commissioners, the Applicant sought and was granted an extension of time to 21 June 2017, to provide the Respondent with plans satisfactory to it. Koprivnjak advised Johnstone in detail of Council's remaining concerns (Koprivnjak pars 90-91, and Exhibit YAK-1, tabs 62-63).
Johnstone deposes (pars 46-47):
46 I refer to paragraph 91 of the Koprivnjak Affidavit. Council provided its response to the plans just before the matter was in Court on 26 May 2017 requesting further amendments beyond those sought by the Court. The applicant's difficulties with contacting Council staff was raised before the Commissioners. I was in Court that day and heard Mr Eastman who appeared on behalf of the Respondent, assure the Court that the Council staff would now take the applicant's calls.
47 On 29 May 2017 and 1 June 2017, I again requested the contact details for Council's engineer. On 2 June 2017, a telephone discussion finally occurred between the parties.
On 6 June 2017, the parties met at the Respondent's chambers to discuss what was required to satisfy the Respondent with respect to the requisite amendments to the plans (Koprivnjak pars 91-92, and Exhibit YAK-1, tabs 63-64).
By 21 June 2017, the Applicant had again not provided the Respondent with plans to its satisfaction as directed. On that date, the Respondent's planner emailed the Respondent's solicitors stating that although plans had been provided (by email at 12:18pm), the Applicant's planner subsequently called him, requesting that they be ignored, as they contained errors (Koprivnjak par 94, and Exhibit YAK-1, tab 65).
On 21 June 2017, the Commissioners directed the Applicant to file, by 12 July 2017, plans satisfactory to the Respondent, and conditions which reflected the judgment (Koprivnjak par 96, and Exhibit YAK-1, tab 66).
Johnstone deposes (par 48):
48 I refer to paragraph 96 of the Koprivnjak Affidavit. Amended documents were provided to Council on 21 June 2017. On 21 June 2017, the matter was adjourned by consent to allow Council time to consider the amended documents. Both parties were directed to file agreed Conditions of Consent, not just the applicant.
Plans and conditions, prepared in accordance with the 3 March judgment, and to the Respondent's satisfaction, were filed on 12 July 2017 (Koprivnjak pars 97-98, and Exhibit YAK-1, tab 67).