Archiworks Architects Pty Ltd v Sutherland Shire Council

[2004] NSWLEC 690

Land and Environment Court

of New South Wales

CITATION:

Archiworks Architects Pty Ltd v Sutherland Shire Council [2004] NSWLEC 690

PARTIES:

APPLICANT
Archiworks Architects Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

11024 of 2004

CORAM:

Bly C

KEY ISSUES:

Costs :-

LEGISLATION CITED:

Land and Environment Court Rules 2003
Land and Environment Court Practice Direction 1993

CASES CITED:

DATES OF HEARING:

03/12/2004

DATE OF JUDGMENT:

12/14/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay, barrister

RESPONDENT
Mr R. O'Gorman-Hughes, solicitor
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

Date

11024 of 2004 Archiworks Architects v Sutherland Shire Council

JUDGEMENT ON COSTS

Introduction

1 On 29 Sep 2004 the Court handed down in its judgement in this matter, dismissing the class one appeal involving a townhouse and villa development at 21, 23 and 27 Moreton Rd. Illawong.

2 The hearing began on 28 June 2004 and was subsequently adjourned part heard on the second day to enable the preparation of further amended plans. Mr O'Gorman-Hughes, the respondent's solicitor had objected to the adjournment and advised the Court that he would be asking for costs.

3 A Notice of Motion was subsequently filed on behalf of the respondent on 21 Oct 2004 seeking the following orders:

1. The applicant pay the respondent's costs thrown away by the vacation of the hearing dates on 29 June 2004;

2. The applicant pay the respondent's costs arising from the applicant's reliance on amended plans served by the applicant on 29 July 2004; and

3. The applicant pay the respondent's costs of this costs application.

4 The grounds for the costs application are set out in the affidavit of Richard O'Gorman-Hughes dated 18 August 2004. Mr O'Gorman-Hughes also provided an additional oral explanation of these grounds. Mr Clay for the applicant opposed the making of these orders.

Background

5 The appeal was lodged on 28 August 2003. Following a number of callovers and by consent, amended plans were to be filed and the matter was set down for hearing from 4 to 6 February 2004. These dates were subsequently vacated by consent.

6 Further amended plans were served on 2 February 2004. There followed a number of callovers and adjournments dealing with matters including the statement of issues the statement of basic facts and the Court appointed expert traffic witness.

7 On 27 April 2004 by consent it was directed that the matter be set down for hearing on 28 to 30 June 2004.

8 The following chronology of subsequent events is particularly relevant:

• 16 Jun 2004: Respondent serves on the applicant its expert town planning report which deals with the statement of issues.
  
• 17 Jun 2004: Applicant serves on the respondent its expert town planning report.
  
• 24 Jun 2004: Applicant serves on the respondent an amended basement plan and traffic engineer's report.
  

• 28 June 2004: The hearing begins with a site inspection including evidence from expert and resident witnesses. Applicant serves respondent with further amended plans.

• 29 June 2004: Second day of hearing. Applicant advises of proposed changes to several townhouses and the possible removal of one dwelling and seeks an adjournment to enable amended plans to be prepared and notified to neighbours.

Basis for orders for costs

9 Notwithstanding that it is the usual practice of the Court not to grant costs in class 1 matters, Pt 16 of the Land and Environment Court Rules 2003 (as amended) relevantly provides that:

(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.

10 Rule 10 of the Land and Environment Court Practice Direction 1993 relevantly provides that:

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 Commissioners (as the case may be).

Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the party shall be informed of the 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.

Respondent Council's Submissions

11 Mr O'Gorman-Hughes submitted that it is appropriate for the applicant to pay the respondent's costs which were thrown away as a result of the vacation the hearing dates. This is because the reasons for amending the plans were based on aspects of the previously identified issues that were addressed in the council town planner's report well prior to the hearing. The applicant had the opportunity to deal with these issues and prepare amended plans before the hearing began.

12 The costs sought by the respondent Council comprise:

• Mr O’Gorman-Hughes own wasted time on the second day and the additional time in preparing for the subsequent hearing involving the amended plans;
• The time of Mr Nash, the consultant town planner who replaced Mr Hand, Council's in-house town planner (who fell ill in the intervening period) in considering the amended plans.

Applicant's submissions

13 In reply Mr Clay submitted that it was the view, particularly the inspection of neighbours’ backyards and hearing directly from those neighbours that identified the need to introduce measures to reduce the adverse impacts on neighbours to a satisfactory level. He described this process as the intervening event, which revealed matters not so apparent beforehand, and which triggered the need to amend the proposal and prepare amended plans. The preparation of amended plans was necessary because the changes contemplated could not be dealt with conceptually and by way of conditions of consent. It was on this basis that the Court agreed to the adjournment.

14 Mr Clay further submitted that the approach taken by the applicant is consistent with the approach of the Court in seeking reasonable amendments to applications to improve the design and resolve issues. Such a revised proposal might than be able to be approved rather than being refused thus requiring a fresh application with the resulting delays and costs.

Findings.

15 Mr. Clay is correct in his assertion as to the approach of the Court in allowing applications to be amended by providing revised plans when identified impacts can be resolved by reasonable and relatively straightforward changes.

16 In this case the issues that resulted in the applicant seeking an adjournment involve the overlooking of neighbours’ houses to the west and the appearance of the proposal when viewed from those houses. It is noteworthy but not determinative that the amended plans effectively resulted in the resolution of these amenity impacts.

17 I accept that these issues were properly understood during the site inspection. But it cannot be said that they were new or different issues, having been referred to in the statement of issues and the residents objections and dealt with by Council's town planner in his report.

18 The changes to the plans did not come about as a result of any directions of the Court.

19 In these circumstances, and having engaged their own expert town planner, I cannot accept that the applicant did not have the means and opportunity to deal with these issues prior to the commencement of the hearing and accordingly prepare amended plans in a timely fashion. Indeed, several other amendments to the plans were served before the hearing without objection.

20 In the circumstances I agree that it would be fair and reasonable for costs to be granted as sought in proposed orders 1 and 2. It follows that order 3 should also be granted.

21 Subject to any submission the parties make within 14 days the Court orders will, with the concurrence of the Chief Judge be:

1. The applicant pay the respondent's costs thrown away by the vacation of the hearing dates on 29 June 2004;

2. The applicant pay the respondent's costs arising from the applicant's reliance on amended plans served by the applicant on 29 July 2004; and

3. The applicant pay the respondent's costs of this costs application.

_________________________
T A Bly
Commissioner of the Court
lr/rjs