Zikmann v Randwick Council

10409 of 2004 Robert Vaughan Zikmann v Randwick City Council

JUDGMENT Introduction 1 This is an application for costs in relation to an appeal against the refusal by Randwick City Council (the council) of an application to modify an approval granted by the council for the erection of a garage at 16 Scott Street Maroubra (the subject site). 2 The modification application seeks to reduce the western side boundary setback from 500 mm to 380 mm and increase the length of the setback from 2.5 m to 3.5 m. The construction of a services box adjacent to the garage and the boundary with 14 Scott Street also forms part of the application. The garage and the services box were partially constructed at the time of the modification application. Background 3 The application was recommended for approval by council officers but was refused by the council at its meeting of 24 February 2004. The reasons for refusal relate to the adverse impact on the adjoining property and streetscape in terms of its visual bulk and scale, the reduced area available for landscaping to screen the garage wall and non-compliance with the council's DCP objectives for building setbacks. 4 The Statement of Issues reflected the reasons for refusal and also included a further issue relating to the proposed services box. The consideration of the merits 5 The appeal was heard as a s 34 Conference on 30 June 2004. 6 The Court's consideration of the modified setback is based on the difference in the impact of the setback previously approved by the council and the setback proposed by the modification application. The difference is to be assessed in terms of visual bulk and scale, the reduced area available for landscaping and streetscape. The impact of the proposed modification of the services box is to be assessed in terms of its impact on the streetscape and the adjoining property. 7 With the benefit of the site view, the reduction in the setback from 500 mm to 380 mm will be largely unnoticeable from any distance beyond the front yard of the adjoining property. The approved 500 mm setback can only be regarded as a token attempt to minimise the visual impact of a substantial structure close to the front and side boundaries of the subject site. The visual bulk and scale of the garage will be unaffected by the reduction in the setback because of the already limited area to provide landscaping. 8 I accept the applicants submission that the visual impact of the garage is likely to be reduced by the extension of the setback from 2.5 m to 3.5 m. While the three options for landscaping proposed by the applicant were rejected by the council, I accept that some form of landscaping could be provided in this area although its ability to reduce the bulk and scale of the garage is clearly limited by the area available for this landscaping. 9 This issue became somewhat academic after the adjoining owner, Mr Anderson, strongly opposed any landscaping in the setback area as it would likely drop leaves on his front yard and require maintenance that could only be undertaken from his property. While opposing the modification to the setback, I understand much of his opposition stems from the original approval of the garage. The objection of Mr Anderson and the practical problems of maintaining any landscaping in this area ultimately resulted in the Court deleting the condition requiring the setback area to be landscaped. 10 The proposed services box is also likely to have, at best only a minimal impact on the streetscape and any view lines from Mr Anderson's property. It is a relatively small structure being around 600 mm by 1000 mm and restricted to a maximum height of 1.52 m. Its presence in the streetscape is not overly conspicuous as it adjoins the garage on the subject site and a 1.37 m high brick fence post on Mr Anderson's property. 11 The parties were verbally advised of the Courts findings at the s 34 Conference and the appeal was upheld. At this time, the applicant advised the Court that he proposed to make an application for costs. Directions were given to the parties for the filing and serving of written submissions on the costs application. The basis for an order for costs 12 Prior 2 February 2004, the practice of the Court was to award costs only where there were exceptional circumstances. From this date the Land and Environment Court Rules (Amendment No 8) 2003 (the Rules) came into effect and amended the basis for costs in Class 1 cases. The relevant provision of Pt 16 of the Rules now reads: (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. 13 This change to the Rules was accompanied by an amendment to the Land and Environment Court Practice Direction 1993 that relevantly reads: 10. Where an application for costs is made in proceedings that have been heard and determined by one or more Commissioners the application shall be made, to that Commissioner or those Commissioner's (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. 14 In this case, the applicant has asked to Court to invoke the provisions of Pt 16 of the Rules. The applicant's case 15 The applicant maintains that an order for costs is fair and reasonable for the following reasons: · the amendment will result in a level of general screening and amenity significantly greater than that envisaged by the approved plans, · three options were provided by a landscape architect to provide screening in the setback area, · there will be no detriment to any neighbour or the streetscape, and · the re-establishment of the small services enclosure will ensure safe and aesthetically improved protection for the services as is to be located well below the height of a typical 1.8 m boundary fence. 16 The applicant is a barrister and was self-represented. He provided a breakdown of the costs incurred in the modification application that total $8531.60, including costs associated with the costs application. The applicant requests that the Court make orders that the council pay these costs within a period of 21 days. In response to the findings in Lawrence v Nikolaidis (2003) NSWCA 129, the applicant maintains that the decision would not prevent costs being awarded as applied for, either in principle or in quantum. The respondent's case 17 The respondent submits that conduct of the respondent would not fairly and reasonably give rise to the making of a costs order in the circumstances of this case. The council, as the consent authority, is not obliged to accept the recommendations put to it by one or more of its officers. The conditions on the approval for the garage required landscaping within a particular setback. The applicant, through the modification application, sought to modify this setback so the respondent was entitled to refuse the modification application for reasons relating to the reduced side setback. 18 It is further submitted that if the applicant considers a council or councillors have acted improperly then there are appropriate avenues for redress but not by way of a Class 1 appeal nor the Court Rules relating to costs. 19 It relation to the quantum of costs, the High Court decision of Cachia v Hanes (1994) 179 CLR 403 is the authority for the profit/income forgone by a professional party in attending to their own case. In terms of the principles set out in Lawrence v Nikolaidis, the respondent submits that the applicant's claimed costs include amounts not easily reconcilable to the exercise of professional skills. Furthermore, the costs are calculated at an hourly rate and appear to exceed or fail to accurately detail time spent in the exercise of professional skills in the matter. 20 The respondent also submits that the findings in CSA Architects Pty Limited v Woollahra Municipal Council (No. 2)(2004) NSWLEC 234 supports the position that an order for costs should not be made. The reasons raised by the applicant (and which were ultimately not successful) bear a strong similarity to the reasons submitted by the applicant in this case. Findings on application for costs 21 Pt 16 of the Rules states that no order for the payment of costs will be made unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable. 22 In the circumstances of this particular case, I find that the decision to refuse the modification application was so lacking in merit that it is fair and reasonable that a costs order be made. 23 The applicant's submission that the elected council is not bound by the recommendations of its officers is beyond challenge. It is a fundamental principle of local government. It does not however mean that decisions can be based on arbitrary or irrelevant considerations. A decision to refuse a development application must be based on planning considerations. Section 79C of the Environmental Planning and Assessment Act 1979 specifies the matters that must be taken into account in considering development applications. These matters are supplemented by local considerations, such as environmental planning instruments and development control plans. These must form the basis for the consideration of any development application. The Court was not taken to any provision, in any planning document that was remotely offended by the proposed modification application. 24 In my opinion, the circumstances in CSA Architects Pty Limited can be distinguished from the circumstances in this case. While no expert evidence was provided by the councils at either hearing, the Court had the benefit of a council officers report in CSA Architects Pty Limited that supported the council's position. The Court found that the reasoning in the report was of sufficient merit to suggest a genuine contest between the parties. This was not a conclusion that could be reached in the subject application. 25 The written submission from the applicant also contains details on the actions of the council prior to and following the decision to refuse the modification application. In considering the application for an order for costs, I have given these details little weight, as they are generally not matters relevant to the Courts consideration of a costs application. 26 Similarly, I have given no consideration to the quantum and specific items seen as appropriate by the applicant in his assessment of costs. These are matters that are appropriately dealt with by agreement or as assessed. Conclusion 27 For the foregoing reasons, I am of the opinion that the council should pay the applicants costs in the sum agreed or failing agreement, as assessed. Such costs being limited to those costs of a litigant in person who is a legal practitioner and in accordance with principles established in the High Court decision of Cachia v Hanes (1994) 179 CLR 403. 28 In accordance with cl 10 of the Land and Environment Court Practice Direction 1993 the parties are to advise the Registrar within 7 days whether they wish to make submissions to the Chief Judge. ____________________ G T Brown Commissioner of the Court Annexure "A" Conditions of Development Consent Robert Vaughan Zikmann v Randwick City Council

A Condition No 1 is altered to read as follows: 1. The development must be implemented substantially in accordance with the plans comprising 6 sheets prepared by A Armour, dated February 2001 and received by Council on the 21 May 2001, the application form and on any supporting information received with the application, as amended by the Section 96 plans received by Council on the 15th December 2003, only insofar as they relate to the modifications highlighted on the Section 96 plans and detailed in the Section 96 application except, as may be amended by any other conditions.

B Condition 2 is altered to read as follows: 2. The planting to be used for screening between the western elevation of the proposed garage and side boundary setback of No. 14 Scott Street is to be deleted.

C New condition. 3. The proposed services box is to have a maximum height of 1.52 m from ground level.

      G T Brown
      Commissioner of the Court
      rjs

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