Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 255 | Case summary

1 Commissioner: On 11 February 2005, I gave judgment in favour of the council decision on the merits of this application. 2 Mr Howie, solicitor for the council, has now made an oral application for costs based on the council's notice of motion filed 21 March 2005. 3 The respondent's primary claim is that it seeks an order that the applicant pay the council's costs with respect to the housing density issue (Issues 1, 2 and 3) from 14 January 2005 when the Court-appointed planning expert gave an oral report to both parties. 4 The council also sought a specific order that the applicant pay the council's costs with respect to the applicant's notice of motion filed 19 January 2005, which sought: · to vacate the hearing dates 27/28 January 2005; · to extend time for the filing of the applicant's expert reports; and · a separate and preliminary hearing on so called questions of law relating to the housing density issue. 5 The council also sought a specific order that the applicant pay part of the respondent's share of the fees of the Court-appointed expert Mr M E Neustein of Neustein Rosenberg Partnership. 6 The question for the Court is whether, in the exercise of its discretion under s 69(2) of the Land and Environment Court Act 1979, the Court should find that, in the circumstances of this particular case, it is fair and reasonable that the applicant should pay the council's costs from the date when the Court-appointed planning expert Mr Neustein gave to the parties his oral report on 14 January 2005. 7 The Court's discretion to order costs lies with s 69 of the Land and Environment Court Act 1979, that relevantly provides: (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... A Commissioner or Commissioners may not make an order under this section except with the concurrence of the Chief Judge. 8 Part 16, Rule 4, of the Court's rules relevantly provides: (1) This rule applies to the following proceedings in Classes 1, 2 and 3 of the Court's jurisdiction: (a) proceedings under Section ...97 ...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 the costs order is, in the circumstances of the particular case, fair and reasonable (Court's emphasis added). 9 Paragraph 10 of the Land and Environment Court Practice Direction 1993, relevantly, provides: 10. Where an application for costs is made in the proceedings that have been heard and determined by one or more Commissioners the application shall be made to that Commissioner or those Commissioners (as the case may be). Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the parties shall be informed of that decision and the reasons for it and shall be given the opportunity to make submissions to the Chief Judge on the question of whether he should give concurrence to the proposed costs order. 10 Thus before giving effect to this costs application the concurrence of the Chief Judge is required, and the parties are afforded the opportunity to make further submissions before him. 11 The matter came before me at 10.00am on 9 May 2005 and an oral application was made. I asked the respondent to prepare an account of the costs sought and the hearing was reconvened at 2.00pm that same day. 12 In the matter of costs before me, I have concluded that the applicant should pay part of the costs that the respondent seek and I have approached the Chief Judge to concur in my orders at the end of this judgment. The costs associated with the housing density issue 13 The respondent submitted in support of the present costs application, that on 14 January 2005 the applicant was given a detailed explanation: 4. …as to why in Mr. Neustein's, opinion the development did not meet the desired future character of the locality and as to why there should be no departure from the housing density standard. 5. In the Council's submission the Council's costs with respect to the housing density issues from that date were generally incurred as a consequence of the Applicant contesting the issues unreasonably and unfairly: · by mounting and maintaining a "scattergun" of misconceived points (paragraphs 19 to 22 [of the quotation below]); · by seeking to unfairly undermine the basis for the Court appointed expert's opinion in asserting that Mr Neustein had been misled by the Council's solicitors as to the provisions of Warringah LEP 2000 knowing that to be untrue (paragraphs 23 to 28 [of the quotation]); · by seeking to preclude Mr Neustein from considering the Applicant's expert reports (paragraphs 29 to 33 [of the quotation]); · by pursuing hopeless points beyond those advanced by the Applicant's own planning consultant, Mr Charles Hill (paragraphs 34 to 38 [of the quotation]); and · by wilfully disregarding the merits of the opinions of the Court-appointed expert (paragraph 39 [of the quotation]); and · by reopening the case after judgment was reserved to further agitate points without any additional basis (paragraphs 40 to 44 [of the quotation]). Background to the housing density issue 14 The respondent council submitted in support of the present costs application that: 6. In these proceedings it was common ground that the subject land Lot 1093, by itself, did not constitute an existing parcel of land as at 8 March 1974 and accordingly was not excepted from the housing density standard of 1 dwelling per 20 ha. The existing parcel as at that date was constituted by the subject land Lot 1093 together with portions 1086, 1088, 1089, 1090, 1091 and 1092 for which development consent had been granted for a dwelling on Lot 1091. 7. In earlier proceedings with respect to Lot 1092 before Commissioner Hoffman in February and March 2004 (Vigor Master Pty Limited v Warringah Council [2004] NSWLEC 162) the Applicant offered to procure the surrender of the subsisting consent for the dwelling house on Lot 1091 so that the exception to the development standard for an existing parcel would apply to the development application for Lot 1092. Commissioner Hoffman dismissed that appeal on grounds unrelated to housing density. 8. In these proceedings the Council by its letter 23 September 2004 (page 82 Exhibit 9) offered to accept the surrender of the development consent for the dwelling on Lot 1091 so as to satisfy the housing density issue. The Applicant responded by its letter 24 September 2004 (page 84 Exhibit 9) to the effect the Applicant was essentially seeking to procure 2 dwellings, one on Lot 1093 and one on Lot 1091. 9. On 21 December 2004 the Chief Justice, Justice McClellan heard the Applicant's notice of motion. The Applicant withdrew its request for a vacation of the hearing dates and the Court declined to order a preliminary hearing. 10. On 23 December 2004 Mr Michael Neustein of Neustein Rosenberg Partnership was appointed the Court appointed planning expert to enquire into and report on the housing density issues (issues 1, 2 and 3). 11. On 14 January 2004, [sic 2005] Mr Neustein met with the parties and during the course of approximately a 11/2 hour meeting explained and gave extensive reasons for his opinions (see paragraph 4 [of the quotation] above). 12. The parties received Mr Neustein's written report on 18 January 2005 (Exhibit 8). 13. The hearing commenced before Commissioner Mr S Watts on Thursday 27 January 2005. The Commissioner reserved his judgment on Friday 28 January 2005. 14. At the Applicant's request, the proceedings were re-listed before Commissioner Watts on Thursday 3 February 2005 and the Commissioner heard further submissions from the Applicant on the housing density issues and from the Respondent in response. 15. On 11 February 2005 a written judgment was given by Commissioner Watts (Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35). The Court made orders dismissing the appeal on the housing density issues and refusing consent.

The "scattergun" 15 The council contends that the applicant used a "scattergun" to seek to advance its cause to have a new dwelling approved on Lot 1093, and submitted: 19. In its submissions to the Court appointed expert, the Applicant raised a number of issues including: · the objective for the development standard is to be derived from the earlier ID051 and Warringah LEP 1985 and not the provisions of WLEP 2000, particularly, the desired Future Character Statement for the Locality; · the subject Lot 1093 with Lots 1092 and 1090 are the last three allotments of "private land" (ie land that is not owned by the government, a public authority, the Aboriginal Land Council and churches) which do not have a housing entitlement; · the Council has approved dwelling houses under the earlier instruments with variations of the housing density standard of 1/20 hectares; · tests similar to those applicable under SEPP1 should be applied; and · determining weight should be given to approvals in the adjoining C8 locality. 20. At the meeting on 14 January 2005 Mr Neustein discussed these issues extensively with the Applicant's representatives, Mr Henry Yu, Mr Michael Wu and Mr Greg Pickworth, architect explaining how the provisions of WLEP 2000 should be applied. Mr Neustein also explained in detail the basis for his opinions that the development did not meet the desired future character and that no departure was justified from the housing density standard. 21. Notwithstanding that the Applicant had the benefit of the independent and impartial opinions of Mr Neustein, the Applicant continued after 14 January 2005 and at the hearing to press the above issues and variations of them through: · the documents in Exhibit F; · the various maps, plans and calculations in Exhibit L and N; · Mr Pickworth's statement, Exhibit D; and · the Applicant's submissions to the Court. 22. In order to address the above issues, the Council was required by the Applicant at considerable time and expense including legal costs to search its records to produce for inspection approximately 20 Council files with respect to properties within the locality and to prepare its own plan of housing entitlements which the Applicant tendered as Exhibit L. The above issues, which misconceived the statutory provisions under WLEP 2000, were not considered in the Court's judgment. Mr Neustein's opinion 16 The respondent contends that the applicant sought to undermine Mr Neustein's opinion and submitted: 23. Following receipt of Mr Neustein's report on 18 January 2005 in order to support the Applicant's notice of motion (see paragraph 2 above [of the quotation]), Mr Henry Yu in an affidavit sworn 19 January 2005 asserted: "The applicant believes that Mr Michael Neustein's report prejudiced the Applicant as the legislation clauses he referred to in his consideration of this case and quoted in his report are not complete and outdated. Consequently he negated our submission of argument and evidence." 24. This claim was based upon the Applicant's assertion that the copy of the Warringah LEP 2000 provided to Mr Neustein by the Council's Solicitors was said to have not included the amendment to Clause 12(3)(b) brought about by WLEP 2000 (Amendment No. 12) gazetted on 3 December 2004. 25. Following receipt of that affidavit, Council's Solicitors obtained confirmation from Mr Neustein's office by email on 20 January 2005 that the correct and up-to-date version of the LEP had been provided to Mr Neustein. This was advised to the Applicant by letter from Wilshire Webb dated 20 January 2005. 26. Notwithstanding the correction of the understanding of Mr Yu by the letter 20 January 2005 and the affidavit of Cecilia Rose, the Applicant on the commencement of the hearing on 27 January 2005 tendered as Exhibit "D" the Statement of Mr Pickworth, the Architect for the Applicant dated 25 January 2005 which included the following passage: " Wilshire Webb ("WW") provided Mr Neustein with a supporting letter dated 5 January 2004. In this letter WW quoted an out of date version of Clause 12(3)(b) thereby omitting the recent amendment to this Clause (gazetted on 3 December 2004 which added, 'but nothing in a description of desired future character creates a prohibition on the carrying out of development.' and I submit that by embedding the Respondent's argument in the issue before Mr Neustein and then supporting this issue with out of date information Mr Neustein had inaccurate and misleading information. I submit the report by the Court appointed planner fails to address all of the housing density provisions contained in the B2 Locality Housing Density Standards and fails to address the intent to broaden the basis for approval contained in the various clauses of the LEP 2000 noted above." 27. Mr Pickworth's statement made no reference to the correction of this misunderstanding by the Affidavit of Cecilia Rose served on the Applicant and filed in Court before the Chief Justice on 21 January 2005. 28. The only inference that can be drawn from the tender by the Applicant through Mr Yu of Mr Pickworth's Statement is that the Applicant was attempting to cast doubt on the basis for Mr Neustein's opinions knowing that the assertions about the LEP in paragraphs 23 and 24 were wrong. 17 At the present costs hearing Mr Yu maintained that Mr Neustein had been misinformed as to the addendum to cl 12(3)(b) of WLEP2000, as included in Amendment No 12. In support of his contention he referred to hearsay evidence of Mr Pickworth that Mr Neustein had admitted to Mr Pickworth that he did not have the correct instrument. Mr Pickworth did not give further evidence in the costs application in this regard and I am unable to confirm the truth of the allegations. However, Mr Howie submitted that Mr Neustein did have the up-to-date version of the instrument and in any event the council had added to cl 12(3)(b) in an attempt to clarify the intent of the WLEP2000. I have not given significant weight to the applicant's submissions in this regard. Although not mentioned specifically in his report, at the hearing Mr Neustein seemed quite clear as to the import of the addendum to that clause. Withholding the applicant's expert reports 18 The respondent claims in this costs application that the applicant held back the release of the applicant's expert report and submitted: 29. On 24 January 2005 the Applicant advised the Council's Solicitors that it proposed to file and serve an expert report from a consulting planner but would not at that time give the name of the consultant. 30. The applicant refused the Council's request that a copy of the consultant's report be forwarded to Mr Neustein for his consideration. The Applicant further refused to agree to the Council forwarding the expert report to Mr Neustein. 31. On 25 January 2005 the Council's Solicitor received copies of a Statement of Evidence from Mr Charles Hill of Planning Workshop and the further statement of Mr Pickworth, the Applicant's architect referred to in paragraph 26. 32. Copies of the statements were immediately forwarded by the Council's Solicitors to Mr Neustein. 33. Up until the morning of the hearing commencing on 27 January 2005, the Applicant opposed Mr Neustein: · considering the Applicant's expert reports; · attending the commencement of the hearing on site; and · attending the hearing in the Court for any purpose other than for cross-examination by the Applicant. 19 In his defence the applicant says that on the morning of the site inspection Mr Neustein was invited to discuss the matter with the applicants experts. This might be so however, it seems to me that if the applicant had been willing to involve itself in earlier discussions the matter might have been resolved without the need of a hearing. The experts then might have been in a better position to convince the applicant of the futility of its cause. Other points raised by the applicant in support of the housing density issue 20 The respondent submitted in this costs application that the applicant had raised "hopeless points" to bolster its argument in support of the application for new dwelling on Lot 1093. The council submitted: 34. The Council accepts that the reliance by the Applicant on the report of Mr Hill does not give rise to any basis for an order for costs although Mr Hill's opinions were not accepted by the Court. 35. In the Council's submission, the Applicant with the benefit of the Court appointed expert's independent and impartial opinion from 14 January 2005 ought to have realised that it would be futile to press points, which were not supported by the Applicant's expert Mr Hill. The Applicant continued at the hearing to press the issues referred to in paragraph 19 through the documents and submissions referred to in paragraph 21. 36. In doing so the evidence relied on and the submissions of the Applicant on the housing density issues became internally inconsistent. 37. Without the additional points which were not raised by Mr Hill, the expert evidence and submissions as to housing density should reasonably have been limited to the reports and supporting documents for the opinions of Mr Neustein and Mr Hill and their oral concurrent evidence. 38. The costs of the preparation of the case by the Council and the hearing time would have thereby been considerably reduced. 21 The respondent submitted that the applicant had wilfully disregarded the opinions of the Court-appointed expert. 39. In the Council's submission the actions of the Applicant in: · seeking to unfairly undermine Mr Neustein's opinions; · seeking to preclude Mr Neustein from considering the Applicant's further expert reports; and · by pursuing hopeless points beyond those advanced by Mr Hill; demonstrate that the Applicant wilfully disregarded the independent and impartial opinions of Mr Neustein thereby unreasonably and unfairly increasing the costs of the Council. 22 On 31 March 2005 the applicant provided the Court with a twelve-page response to the respondent's contentions in this costs application. The primary submission of Mr Yu for the applicant, in that response is that the respondent's application for costs in respect of the housing density issue should be dismissed. 23 The grounds for this submission were that the applicant has "reasonably and fairly" sought a resolution of the issues in the merits appeal and that the respondent has been "professionally arrogant" and have sought to "marginalise the self-represented applicant". Central to this assertion is the contention that the council did not serve the Court-appointed expert with an up-to-date copy of the recently and relevantly amended Warringah Local Environmental Plan 2000. (Amendment No 12 dated 3 December 2004). 24 The applicant in the first hearing agreed with paras 6 - 8 of the respondent's submissions of 21 March 2005. 25 I am satisfied that the question of whether or not the council supplied the correct version of the WLEP2000 to Mr Neustein and the applicant is irrelevant in considering this matter of costs. 26 Also the fact that the applicant did not withdraw after Mr Neustein explained his views on 14 January 2005 should not be seen as a reason alone for awarding costs in favour of the council. 27 However, due, perhaps in part to the fact that the applicant was self-represented, much time was spent in Court going over the same ground and exploring in detail the meaning of the density provisions of the WLEP2000 as amended in December 2004. 28 I have taken into account that the applicant fought an appeal on a neighbouring lot within the same holding before Commissioner Hoffmann in February and March 2004 and presumably had the question of housing density explained to him by the applicant's counsel and solicitors. The housing density was further clarified by the addendum to cl 12(3)(b), gazetted 3 December 2004 after that hearing. 29 Mr Howie submitted that the gazettal of Amendment No 12 was to clarify the housing density for this land and not to make a material change to the density. I accept that submission. I am satisfied that the applicant had experience with the application of the council's planning controls for the area, as in the earlier case the applicant agreed to relinquish a subsisting consent for a dwelling on Lot 1091 so that the exception to the development standard of one dwelling for 20 hectares of land would apply to the development application for Lot 1092. 30 Although Commissioner Hoffmann dismissed that appeal on grounds unrelated to housing density, the applicant company could have been assumed to be aware of the council's planning policy with regard to developing existing parcels in this area. The following extract from the Commissioner's judgment (Vigor Master Pty Limited v Warringah Council [2004] NSW LEC 162) confirms this in part. The site, surroundings and ownerships 2. The house was proposed on a 2.72 ha lot called Portion 1092 and is part of the "existing parcel" under the statute. An existing parcel allowed only one house per 20 ha on the combined Portions 1086, 1088, 1089, 1090, 1091 and 1093. They formed a parcel in the same ownership at 8 March 1974. They are situated partly on the eastern ridge above Oxford Falls and on bushland sloping down westwards into the valley between a Crown road reservation off Brooker Avenue, and Oxford Falls Road. The applicant acts for the owners of Portions 1091 and 1092. Portion 1091 has 3 tenants in common, Portion 1092 has 6 tenants in common. 3. There is an existing development consent for a house on Portion 1091 on the lower slopes of the parcel close to Oxford Falls Road. The house has not been built, as yet. 4. The applicant had an undertaking from the 3 owners of Portion 1091 to surrender the existing development consent No. 2000/4472 for the house on the Oxford Falls Road frontage, if after this appeal, a consent for the proposed house on Portion 1092 is forthcoming. The Court was told, the surrender of that existing consent would allow a valid consent for the proposal to issue. 31 Were the present, the only case pursued by the applicant in this area, the normal procedure that each party pay its own costs would apply. The difficulty in interpreting the WLEP2000 would have been taken into account. Also the right of the applicant to test the density standard would have been seen to be reasonable. However, the applicant in the present case has pursued the housing density matter with a zeal that has resulted in the council having to prepare and time taken in hearing days that is not normal. The applicant should have noted the strong independent opinions expressed by Mr Neustein and taken into account the import of the previous case and asked the question whether it is reasonable to pursue this case. I consider the applicant to be unreasonable in pursuing this case, taking the matter to trial and prolonging the hearing time. Reopening the case 32 The respondent submitted that it was put to additional costs by the re-opening of the case: 40. Following the conclusion of the hearing on Friday 28 January 2005 when the Commissioner reserved his judgment, the Applicant wrote to the Commissioner a letter dated 31 January 2005 raising a further so called question of law as to the meaning of the housing density provisions. 41. Upon receipt of this letter the proceedings were re-listed by the Court before the Commissioner on Thursday 3 February 2005. 42. At the further hearing, the Applicant produced the further submissions (Exhibit "N"). 43. In oral argument the Applicant conceded to the Commissioner that notwithstanding these further submissions, the Applicant acknowledged that the Court had a discretion to grant development consent. 44. The re-opening of the case by the Applicant unreasonably and unfairly put the Council to additional costs. 33 I accept the council's submissions in this regard and I have formed the view that the council's additional costs in this regard should be compensated. The applicant's notice of motion 34 The respondent submitted that it incurred additional time and costs in relation to the applicant's notice of motion filed 19 January 2005: 45. On the hearing of the Applicant's notice of motion on 21 January 2005, the Applicant withdrew its request for a vacation of the hearing dates of 27 and 28 January 2005. 46. The Court declined to order a preliminary hearing on the so called questions of law raised by the Applicant and gave directions for the filing and service of further expert reports by 25 January 2005 with confirmation of the commencement of the hearing on 27 January 2005. 47. The Applicant's notice of motion increased the costs of the Council in the proceedings without providing any procedural benefit to the Court or the parties. 35 I accept the council's submissions in this regard and I have formed the view that the council's additional costs in this regard should be compensated. Mr Neustein's fees 36 The respondent has now paid the Court-appointed expert's fee account, however the respondent still seeks costs in that amount together with other costs allegedly incurred unnecessarily. Some of those fees were as a result of the additional work required by the respondent to answer the questions posed by the applicant after Mr Neustein had addressed housing density at the meeting with the applicant on 14 January 2005. Costs of the costs hearing 37 Having found that the applicant had caused the council to incur costs aver and above those reasonably and fairly expected the costs of the costs hearing should be borne by the applicant. Respondent's costs application 38 The respondent provided at the hearing a breakdown of the quantum of costs sought on a party and party basis: Housing density issue from 14 January 2005 to the hearing · Partner's time 15 hours @ $300 per hour $4,500 · Solicitor's time 7 hours @ 200 per hour $1,400 · Support staff 5.2 hours @ 70 per hour $364 $6,264 Hearing 27 and 28 January 2005 concerning housing density issues · Partner's time 15 hours @ 300 per hour $4,500 · Solicitor's time 9.9 hours @ 200 per hour $1,980 · Support staff 0.5 hours @ 70 per hour $35 · Less say $1,515 $5,000 Reopening of the hearing 31 January 2005 - 3 February 2005 · Partner's time 4.6 hours @ 300 per hour $1,380 · Solicitor's time 2.1 hours @ 200 per hour $420 · Support staff 0.4 hours @ 70 per hour $28 $1,828 Applicant's notice of motion · Partner's time 6.6 hours @ 300 per hour $1,980 · Solicitor's time 0.2 hours @ 200 per hour $40 · Support staff 3.1 hours @ 70 per hour $217 $2,237 Judgment attendances 11 February 2005 · Solicitor's time 1.2 hours @ 200 per hour $240 $240 Costs of the costs motion 28 February 2005 to 9 May 2005 · Council's submissions $1,500 · Review of applicant's submissions $900 · Preparation of costs amounts $450 · Hearing $900 $3,750 Council's part share of Mr Neustein's fees · As per memorandum 14 February 2005 of $5044 including GST say $1000

Vigor Master Pty Limited v Warringah Council

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (3)

Cited By (1)