Tesrol Greenwich Pty Ltd v Lane Cove Council

Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141; Hunter Development Brokerage Pty Limited v Cessnock City Council [No 2] [2006] NSWCA 292; CASES CITED: Kiama Council v Grant (2006) 143 LGERA 441; Tesrol v Lane Cove Council [2007] NSWLEC 156; Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140

APPLICANT Mr M Causer (solicitor) SOLICITOR LEGAL REPRESENTATIVES: Mallesons Stephen Jaques RESPONDENT Mr S Griffiths SOLICITOR Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10779 of 2006 Tesrol Greenwich Pty Ltd v Lane Cove Council

EX TEMPORE JUDGMENT 1 Her Honour: Commissioner Brown handed down his decision in Tesrol v Lane Cove Council [2007] NSWLEC 156 granting conditional development consent to the Applicant's subdivision development on 7 March 2007. The Applicant has filed a Notice of Motion dated 29 March 2007 seeking its costs of the proceedings from 18 December 2006, the date the court appointed planning expert provided his preliminary report to the parties. In submissions an alternative date of 14 February 2007, the date of the Amended Statement of Issues filed by the Council was proposed. The Council opposes the motion for costs. Brief history 2 A brief history of the matter is outlined below. (i) Class 1 appeal lodged 1 September 2006 on the basis of a deemed refusal. (ii) The Council staff had recommended approval subject to conditions. Council approved the DA on 13 September 2006 subject to conditions which including amalgamating some lots including Lot 2. (iii) Council's Statement of Issues dated 10 October 2006 prepared. (iv) Consent to rely on amended plans granted to the Applicant by the Court on 22 November 2006. (v) Preliminary report of Mr Fletcher, the court appointed planning expert dated 18 December 2006 (vi) Exhibition of amended plans by the Council from 3 January to 31 January 2007. (vii) Amended Statement of Issues of the Council dated 14 Feb 2007. (viii) Final report of Mr Fletcher, court appointed expert, dated 28 February 2007. (ix) Hearing before Brown C on 14 March 2007. (x) Judgment of Brown C handed down 15 March 2007.

3 The Applicant relies on Hunter Development Brokerage Pty Limited v Cessnock City Council [No 2] [2006] NSWCA 292 and Kiama Council v Grant (2006) 143 LGERA 441 at [15(d)] to support its submission that from one or other of the dates identified in submissions, the Council, properly advised, should have known that it had no or poor prospects of success and should have entered into consent orders at that stage. Consequently the Applicant's costs of the proceedings should be paid from that date because these costs were unreasonably incurred. The Council continued throughout the proceedings to seek to have Lot 2 deleted from the subdivision. This relates to the amalgamation of lots in a configuration different to that sought by the Applicant. Reliance was also placed on the reduction in residents' opposition to the amended proposal with 25 objections received to the original plans reduced to nine submissions in relation to the plans before the Court on the hearing of the merit appeal. These nine submissions were said to be reluctantly supportive, largely raising issues which concerned clarification of conditions of consent. The Council should not have continued its opposition to the grant of consent but should have focussed the appeal on conditions of consent only. Finding 4 Part 16 r 4(2) of the Land and Environment Court Rules 1996 (the Court Rules) provides: 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.

5 In Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141 Talbot J held 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.

6 Having reviewed the conduct of the appeal as identified through the documents attached to affidavits of Mr David O'Donell dated 5 April 2007 and Ms Vickers dated 8 May 2007 I consider the history of the matter as outlined in the Council's submissions is the appropriate way in which the conduct of the proceedings ought be considered.

7 The preliminary report of the court appointed expert Mr Fletcher dated 18 December 2004 was just that, preliminary. In that report Mr Fletcher stated he did not speak to any objectors as at that stage the final plans to be relied on by the Applicant had not been provided and he only had a schematic plan. The report identified matters requiring further clarification while also stating that the proposal broadly met town planning requirements. There can be no suggestion that the Council acted unreasonably in continuing with the matter after this date as there were a number of outstanding issues, not all of which were related to the conditions of consent. There was a need to further exhibit the amended plans which the Applicant sought the leave of the Court to rely on, and this occurred during January 2007. The final report of Mr Fletcher dated 28 February 2007 continued to require further detail from the Applicant in relation to "design guidelines" in order to render the plan of subdivision satisfactory. The guidelines were supplied in part on 8 March 2007. Further negotiation about appropriate conditions based on these continued up to and during the hearing.

8 The fact that opposition to the Applicant's proposal by local residents abated from the original application to that finally before the Court at the hearing is irrelevant. I do not consider the nine submissions received can be described as giving general support to the amended plans and even if they did, those views are not binding on the Council that it should accept the development in any event.

9 While the court appointed expert concluded that the application was generally supportable, this was qualified by the need to better clarify some important issues. There continued to be a number of outstanding matters up until the hearing. This suggests that the Council acted correctly in its conduct of the proceedings. It was not bound by the conclusions of the court appointed expert and was entitled to have the matters it wished to raise considered by an expert Commissioner (see Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140 per Preston J at [53], [54] for a description of the role of the court appointed expert in this specialist tribunal).

10 The Council is also criticised for raising too many issues in the original and amended statements of issues all of which the Applicant had to prepare for. The original statement of issues raised four issues which were reduced to three in the amended statement of issues. Brown C identifies the three issues at [14] of his judgment and deals with each in turn. There is no suggestion in the judgment that there was any dereliction in the way the Council ran its case. The issue of whether Lot 2 should be deleted from the subdivision receives no particular mention in his judgment, suggesting it received very little attention in the proceedings and occupied minimal Court time.

11 As to whether the Applicant incurred additional unnecessary expense because of the number of issues raised in the statement of issues, the Applicant did not rely on any additional evidence beyond that of the court appointed expert. The extent to which it incurred any additional unwarranted costs as a result of the Council's conduct of the litigation is unsubstantiated. While additional planning material from Urbis JHD and GMU Design was provided by the Applicant to the court appointed expert, Mr Fletcher, none of that was relied on as evidence in the proceedings nor provided as a witness statement. As identified by the Council's solicitor that appears to have been part of a process of refinement of the application, using the court appointed expert as a sounding board. No criticism is intended by that description but the point is that the work was done on the Applicant's initiative not as a result of the Council's conduct.

12 The matter took one hearing day which is likely to have been the case even if consent orders were to be considered. The usual approach to costs in Class 1 appeals as set out in Pt 16 r 4(2) should be applied so that each party should pay its own costs.

13 I do not consider the Applicant should succeed on its Notice of Motion and will dismiss it. As the Council has been successful in resisting the Motion it should have its costs. Order 14 The Court makes the following orders: 1. The Applicant's Notice of Motion dated 29 March 2007 is dismissed. 2. The Applicant is to pay the Respondent's costs of the hearing of the Notice of Motion on 18 May 2007.

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