Anibal 21 Pty Limited (ACN 077 952 142) v Waverley Council [1998] Nswlec 33 (9 March 1998)

[1998] NSWLEC 33

Land and Environment Court

of New South Wales

CITATION:	ANIBAL 21 PTY LIMITED (ACN 077 952 142) v WAVERLEY COUNCIL [1998] NSWLEC 33 (9 March 1998) [1998] NSWLEC 11
PARTIES:	ANIBAL 21 PTY LIMITED (ACN 077 952 142) v WAVERLEY COUNCIL [1998] NSWLEC 33 (9 March 1998)
FILE NUMBER(S):	10631 of 1997
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	4 March 1998
DATE OF JUDGMENT:	03/09/1998
LEGAL REPRESENTATIVES:	Mr G Boskovitz (Solicitor) Mr S B Austin QC

JUDGMENT:

REASONS FOR JUDGMENT

The applicant is seeking an order that the respondent pay its costs incurred in relation to a class 1 appeal heard by Assessor Bly on 24 November 1997. Assessor Bly delivered a reserved judgment on 25 November 1997 when the appeal was upheld and development consent was granted for the use of part of a house at 7 Lancaster Road, Dover Heights as a child care centre subject to conditions.

The exceptional circumstances which the applicant claims entitles it to an order for costs are solely that the council resolved to determine the development application by refusing consent notwithstanding that the preponderance of evidence, including reports by its own expert staff, supported and recommended approval.

The Court does not have the benefit of a transcript of the proceedings, or a copy of the judgment delivered by Assessor Bly. However, the applicant’s solicitor, Mr Boskovitz concedes that the reasons produced by the learned Assessor are neutral in so far as the conduct of the council is concerned.

The applicant relies upon a long and detailed affidavit sworn by Jane Zarfati, a director of the applicant company, to support its case. In addition, a statement of evidence by John Edward Coady, as a director of Project Planning Associates Pty Limited, a report to the traffic committee of council dated 26 August 1997 and a memorandum to members of the traffic committee from Councillor Sally Betts dated 10 September 1997 were also tendered and became exhibits.

Following upon advertising of the development application, the council received letters of objection from fifteen objectors.

It is fair to say that the material before council would have entitled it to grant consent to the development application, notwithstanding concerns about a pick up and drop off facility and parking. Obviously, Assessor Bly agreed with this assessment on the evidence before him.

The application was refused on 9 October 1997 following a site inspection on 30 September 1997.

The applicant claims that, by then, all of the council requirements regarding parking were satisfied. It complains that a “drop off/pick up strategy” lodged with the council resolved the outstanding issues. The so called strategy, dated 17 September 1997, is annexed to the affidavit of Jane Zarfati. It is not readily apparent from a reading of this document how it can be claimed to be a panacea for all of the issues raised and the objections lodged by the residents.

The grounds for objection directed to the traffic committee by Councillor Betts are not, prima facie at least, irrational, frivolous or capricious.

Notwithstanding the supporting expert material and the recommendation of its own officers, the council was still left with a discretion to refuse or approve the development application on the merits. The material before the council in favour of granting the development application was not so compelling that only one answer was open to it.

It is the duty of a council to weigh all of the issues in the balance, including resident objections and expert assessment.

There is some suggestion from the evidence of conversations between representatives of the applicant and the Mayor that the council did not properly exercise its discretion because of the manner in which votes are organised within the council. Even if this is true, which has not been proved, although there could be the prospect of a decision not based on proper planning considerations, it does not necessarily follow that the council did not properly exercise its discretion.

It is not exceptional in practice to find a council making a determination contrary to the recommendation of its officers. Neither is it unusual for a council to make a decision contrary to the advice of experts. The report of its officers and expert advice are only some of the matters that a council is entitled to take into account.

The applicant might feel justified in complaining that it suffered unfair treatment at the hands of the council having regard to the whole of the circumstances. However, that, in itself, does not amount to exceptional circumstances within the meaning of the Practice Direction. The council did not act capriciously or in a way that lacked any plausible foundation. It was clearly open for the council to assess the application having regard to the nature of the objections raised by residents and from its own observations and assessment of the site. If the Court was to hold that a council was not entitled to refuse a development application whenever the expert material before it supported the granting of consent or otherwise face a costs order, that, in most cases, would impose an unreasonable fetter on the exercise of the council’s discretion which the historical approach to costs in planning and building matters, now reflected in the Practice Direction, seeks to address.

The application for an order for costs is refused. The notice of motion is dismissed.

Without hearing from the parties further, I would be inclined, on balance, to make no order as to costs in respect of the notice of motion. However, as neither party made submissions in that respect, the question of costs on the notice of motion is expressly reserved.

The formal orders of the Court are:-

1. The Notice of Motion is dismissed.

2. Costs on the Notice of Motion reserved.

3. The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT

ASSOCIATE