Beligiorno v Mosman Municipal Council

[2004] NSWLEC 577

Land and Environment Court

of New South Wales

CITATION:	Beligiorno v Mosman Municipal Council [2004] NSWLEC 577 revised - 24/01/2005
PARTIES:	Beligiorno v Mosman Municipal Council
FILE NUMBER(S):	11061 of 2004
CORAM:	Murrell C
KEY ISSUES:	Appeal :- Section 96 application to modify consent - Costs in proceedings
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land Environment Court Act 1979
CASES CITED:	RCM Constructions Pty Ltd v Ryde City Council 2 2004 NSWLEC 361; Gales Holdings Pty Ltd v Tweed Council No. 2 2004 NSWLEC 351
DATES OF HEARING:	06-07/10/2004
EX TEMPORE JUDGMENT DATE :	10/07/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M Fraser, barrister SOLICITORS Church and Grace RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

7 October 2004

11061 of 2004 Guido and Michelle Beligiorno-Nettis v Mosman Municipal Council

JUDGMENT - EXTEMPORE

1 This matter has come before me as consent orders. A s 96 application (under the Environmental Planning and Assessment Act) to modify the consent granted by Mosman Municipal Council in December 2003 was refused by council on 19 July 2004. The statement of basic facts prepared by the council officer states that the proposal for modification includes:

· The addition of a balcony to the northern side of the study.
· An alternate larger lift design and consequent relocation of walls.
· Glazed panel to the northern wall to the lift on level three.
· Internal realignment of selected walls.
· Stairwell shifted to the east.
· Deletion of the approved gymnasium to accommodate the larger lift.
· Relocation of the bathroom and a larger study.
· Alternate coat of metal materials and opening mechanisms to the foreshore window screens.
· Minor changes to guttering and roofing to improve drainage.

2 The plans for modification were prepared by Jahn Associates Architects and are drawing Nos. s96 01; 02; 03; 04 and 05; all issue A. The modifications proposed are clearly shown on the plans with the original DA shown in red, and the new work proposed as part of the s 96 application shown by heavy black line. The s 96 application was accompanied a Modified Statement of Environmental Effects of April containing the amendments sought to the original development application determined by the council.

3 The subject property is known as 2A Cyprian Way, Mosman, and is on the foreshore of Shell Cove, Middle Harbour. The lot is approximately 1,005 m sq. There is a foreshore building line and there are a number of controls contained under the REP and Mosman LEP. And SEPP 1 objections to vary the overall height, wall height and number of storeys were considered in the original assessment of the development application. The original assessment of the development application also notes that the proposal being on the foreshore had standard conditions of the Waterways Authority applied and these were attached to the original development consent. As such the proposal in terms of the 96 application is also integrated development.

4 The application was the subject of an assessment report by a council officer and the officer’s recommendation to the council was that “the modifications are of an acceptable and minimal change” and they were recommended for approval. The report states:

That the proposed work is largely confined to the approved siting of the dwelling without any significant extension or work at ground level. A minor change to the northern elevation is proposed with the addition of the new balcony. However, this will have no significant impact on the appearance of the new building …. The proposed modifications are satisfactory in accordance with the objectives of SEPP 23 and SEPP 56.

5 The floor space ratio is increased in the proposed modification by 6 m sq such that the FSR of the development increases from 0.470:1 to 0.476:1. The landscaped area provided as a consequential change or result of the increased FSR is deficient. The officer’s report states that “no change is proposed to the landscaped area provided. The additional floor area technically requires an increase of 7.5 square metres of landscaping but (this) will virtually have no impact on the relationship of the built environment to the natural environment having regard to the location of the new floor area”.

6 It is also noted that the balcony to the study is slightly further forward of the foreshore building line but this is not at ground level. The encroachment of the foreshore building line at ground level as originally approved by the council remains the same.

7 The council subsequently considered the officer’s report which went to the meeting of 19 July and the council at that meeting carried the following motion:

“That the s 96 application be refused on the ground that it is beyond the scope of the previous application”.

8 The letter of determination was issued to the applicant and that was dated 27 July 2004. The reason for refusal was stated as:

“The s 96 application is beyond the scope of the previous application”.

9 The applicant was also advised in the notice of determination that: s 82A of the Act provides an applicant to request a review, except an application in respect of integrated development or designated development; and if you are dissatisfied with this decision s 97 of the Environmental Planning and Assessment Act gives you the right of appeal to the Land and Environment Court.

10 Mr Griffiths for the respondent submitted that an 82A review does not exist to the applicant as the proposal is for integrated development under the Rivers and Foreshores Act. Also while it is a moot point and I do not wish to make it an issue (and it has not been a matter in my consideration of the appeal), this is a s 96 application and the appeal right is under s 96(6) of the EPA Act (not s 97) and given that the determination is in respect of a particular development it is rather curious that council would incorrectly advise an applicant, (even though it may be a standard means of notification) of their review rights in terms of 82A when it is not available.

11 In my assessment of the application for modification I have the benefit of the officer’s report, and the benefit of the plans which clearly show the amendments, and in my opinion the amendments fall within s 96(1A) of the Act. That is, modifications involving minimal environmental impact, which is the way the modification was described when submitted to the council. This section provides that:

a consent authority may on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations modify the consent if:
(a) it is satisfied that the proposed modification is of minimal environmental impact; and,
(b) it is satisfied that development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. …

12 I see no reason why, as agreed to between the parties in the consent orders that have been handed up the application to modify the consent issued by Mosman Municipal Council should not be approved.

13 At the end of the proceedings the applicant raised with the Court the issue of costs in this matter. And this issue was a matter that the respondent was aware of by previous correspondence between the parties prior to the hearing of consent orders.

14 On behalf of the council Mr Griffiths was of the opinion that the issue of costs should be a matter of a motion with fourteen days notice. However, in terms of efficiency of the Court, and having regard to proportional costs in this matter of applicants appearing and councils appearing, and given that Mr Griffiths could not advise the Court as to why the council would be prejudiced if I proceeded to hear the matter on costs, I have done so.

15 Mr Fraser submitted that costs should be awarded to the applicant in this case as the applicant had been put to considerable expense in terms of the fact that the matter was one that should have been dealt with by council, and it has incurred expenses in having to appeal in these proceedings.

16 In support of Mr Fraser’s submission that the Court should award costs in favour of the applicant, a number of letters were tendered as evidence of correspondence between the parties. On 26 August solicitors under letterhead of Church and Grace wrote to the council stating:

We are the solicitors for the owners of 2A Cyprian Way and … having regard to the nature of the proposed modifications the fact that your officer’s report supported the application and there were no objections to the application, there can be no possible ground for refusal of the application. Moreover the ground on which the application was refused is not a proper ground for refusal.
In the circumstances we instructed to immediately appeal to the Land and Environment Court against the determination and seek indemnity costs and damages for delay against the council. We are further instructed to apply to the Court to expedite the hearing of the proceedings. In addition to the appeal our clients request the council to review the determination pursuant to s 82A of the Act. in this regard attached is our cheque.

17 Inquiries were made of Mr Griffiths as to whether there was any response by council to the request for an 82A review. And Mr Griffiths pointed out it was ‘integrated development’ and therefore 82A is not a relevant matter. It is also noted however the applicant was not refunded his money and furthermore there was no reply or response to the applicant from council with respect to the 82A review.

18 The letter of 27 September 2004, once again under the letterhead of Church and Grace, to the council’s solicitors Pike Pike and Fenwick states

We refer to our telephone discussion with Mr Griffiths and note the following maters:
“1. At the hearing our client proposes to tender the following:

a. The plans lodged with the s 96 application.
b. The architect’s statement in relation to environmental effects lodged with the s 96 application.
c. The council officer’s report.
d. The council resolution.
e. Relevant correspondence in relation to costs.”

19 The letter goes on to state:

“2. This is so obviously, on an examination of the amended plans, the same development that senior counsel has commented to the effect that the proposed amendments are so minor that our client might have dealt with the matter by an adjustment in their application for a construction certificate.

3. In this context we request that you give particulars of what facts the council will rely on to invite the Court to form the opinion that development described in the amended plans is not substantially the same development as originally proposed.”

20 Then on 1 October 2004 Church and Grace wrote to Pike Pike and Fenwick again to say:

“ We refer to our recent discussion and note the following:
1. You have advised that the council will accede to consent orders for the plans as proposed in our client’s 96 application.
2. The matter has been set down for consent orders at 9.30 on Wednesday 6th October 2004.
3. Would you please forward us a copy of the proposed form of orders ….
4. Would you please let us know what documents will be included in council’s bundle ….
5. We will have available three sets of marked up plans.
6. Finally, as mentioned in previous correspondence, our client will be seeking costs of the proceedings and in this regard we enclose a copy of a notice of motion which we propose to hand to the Court. We also propose to tender the relevant correspondence in relation to costs …” namely the two letters referred to above.

21 Mr Griffiths stated that the applicant sought expedition of the matter and this was not opposed. The reason why the applicant sought the expedition was that excavation of the site for the proposed dwelling was expected to commence and the proposed amendments would impact on the necessary works. The Court granted expedition. Mr Griffiths states that the council at no stage opposed expedition of the proceedings and it then supplied a statement of issues dated 24 September. This reads:

“The proposed modifications will result in a development that is not substantially the same development as that for which consent was originally granted.”

22 The respondent then advised the applicant that it was prepared to enter into consent orders on 28 September. Mr Griffiths says that all of these matters have been attended to well before the time the hearing was originally set down as 14 October. Although it is also noted that 14 October was vacated when the expedited hearing was granted. In all the circumstances Mr Griffiths is of the opinion that the council has not resisted the need for expedition and indeed has conceded to consent orders before the return date as such.

23 The issues of costs is one that has changed in this Court over recent times, and in that regard I go to the judgment of Lloyd J in RCM Constructions Pty Limited v Ryde City Council 2 2004 NSWLEC 361, 20 July 2004. In this judgment it is noted by his Honour:

“The operation of the present rule was explained by Bignold J in Gales Holdings Pty Limited v Tweed Council No 2 2004 NSWLEC 351. I respectfully adopt what was said by Bignold J at 24, namely that the new rule was intended to:
(a) wholly replace the practice direction;
(b) control the costs discretion conferred by s 69(2) of the Land and Environment Court Act 1979; and
(c) to maintain the general principle that costs are not awarded in planning appeals unless it is fair and reasonable in the circumstances of a particular case to make an order for the payment of costs.”

24 His Honour then goes on to say that:

“the wording of the present rule in place of the practice direction was recommended in the report of the Land and Environment Court Working Party under the chairmanship of Honourable JS Cripps QC published September 2001. The Working Party accepted the longstanding principle that costs are not generally awarded in planning appeals and did not recommended that there be any change to that principle. It stated however, that there should be greater flexibility to make orders for costs in circumstances where it may be fair and reasonable to do so, such as where a party may have been put to unjustifiable expense”.

25 Lloyd J concludes by saying at par 15:

“The starting point in considering any application for costs in cases is the general principle that costs are not awarded in planning appeals unless it is fair and reasonable in the circumstance of a particular case to make an order for the payment of costs.

26 The Practice Direction and the Court Rules have changed such that prior to February 2004 the practice of the Court was to award costs in only ‘exceptional circumstances’. From this date the Land and Environment Court Rules, (amendment 8 203 the Rules), came into effect and amended the basis of costs in class 1 cases. The relevant provision of part 16 of the rules now reads:

“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.”

27 The change to the Rules was accompanied by an amendment to the Land and Environment Court Practice Direction that relevantly reads:

“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 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 whether he should give concurrence to the proposed costs order.
Normally, submissions shall be made in writing and must be made within fourteen days of the publication of the reasons for decision by the Commissioner or Commissioners (as the case may be) of the proposed costs order. If any party wishes to make oral submissions in addition to any written submissions, application must be made to the Chief Judge within the fourteen day period. If such an application is not made or written submissions are not provided, the Chief Judge shall, without further notice to the parties, decide whether to grant concurrence to the proposed costs order. If the Chief Judge concurs, the order for costs determined by the Commissioner or Commissioners shall be made pursuant to s 69(8) of the Land and Environment Court Act 1979.”

28 In proceedings before the Court costs must be given careful consideration. However, the test is no longer ‘exceptional circumstances’ but whether it would be ‘fair and reasonable’ to award costs.

29 It is noted in council’s ‘Notice of Determination’ of the modification application did not provide great assistance to the applicant and only stated that “it was beyond the scope of the previous application”. Whether “beyond the scope” means the six additional square metres of building, the additional landscaped area of 7.5 m sq that was required, or a minor incursion but not at the ground level of the foreshore building line cannot be ascertained. Similarly, the ‘statement of issues’ that was provided to the applicant of 24 September did not provide assistance in understanding the issue.

30 It is noted that for the notice of determination of applications to modify development consents under the Environmental Planning and Assessment Regulation 122 it states:

“Notice in writing of the determination of application for modification must be given to the applicant as soon as practicable after the determination is made.
1 (a) a notice of determination of an application granted for the modification of development must include a copy of any relevant plans.
2. If the determination is made subject to conditions, or by refusing the application, the notice must:
(a) indicate the consent authority’s reason for the imposition of the conditions or the refusal.
(b) must state that the act gives a right of appeal.”

31 Councils as an elected body clearly, do not have to accept the recommendations of an officer and it is part of their duties and responsibilities to make decisions. But at the same time there must be proper reasons provided in the administration of the Act in terms of a determination by a council. And in my opinion in the circumstances I do not see why the applicant should not be granted ordinary costs.

32 Examining the circumstances of this particular case I consider it is ‘fair and reasonable’ that the applicant be awarded costs. The reason for the decision of council that the modifications were beyond the scope of the original application is difficult to understand in terms of council’s determination, especially when there was no further information provided to the applicant. It is clear to the Court that the modifications are most clearly shown in the marked up plans and the accompanying documentation. The statement of issues that reiterated, in somewhat slightly different words, the council’s refusal also does not provide any further assistance or reasoning for why the modifications were considered to be not substantially the same development. In my assessment the modifications are clearly substantially the same development that was approved by the council and that can be gleaned from the plans and furthermore the council had the benefit of the officer’s report that assessed the modifications. And in my assessment the modifications fall under the ambit of s 96(1A).

33 The applicant sought indemnity costs and the provision of costs under s 69 of the Land and Environment Court Act states that in this section costs includes:

“(a) costs of or incidental to proceedings in the Court;
(b) in the case of an appeal to the Court the costs of or incidental to the proceedings giving rise to the appeal as well as the costs of or incidental to the appeal; and
(c) in the case of proceedings transferred or omitted to the Court the costs of the incidental of the whole of the proceedings.”

34 Subject to the Rules and subject to any other Act:

“(2) (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;
(c) the Court may order costs to be assessed on the basis set out in Div 6 of Pt 11 of the Legal Profession Act 1987 or on an indemnity basis.”

35 It was explained to the Court that the general rule of thumb is that ordinary costs are 60 or 70 per cent of indemnity costs.

36 It seems to me that these proceedings have been unnecessary and this is largely because of a failing that there has been no proper reasoning given as to the opinion formed as to whether the development is substantially the same development. This was not even reconsidered prior to the issuing of the statement of issues.

37 On the basis of my assessment of the facts that surround this matter including the documentation that has been provided to the Court in terms of letters, the failure of the council to respond to the applicant’s request for an 82A review, even though it may not have been available, indicate to me that the applicant has been put to costs which should not have been incurred. I do not accept that the council should receive the benefit of the fact that it has now agreed to enter into consent orders in this particular case. In many cases it is reasonable that when consent orders are brought to the Court that costs should not be awarded as consent orders are often the result of amended plans, or the submission of further details or information, or a further assessment. In the circumstances of this case none of these matters has occurred. The issue was not supported in any way and a failure to do that has impacted on the applicant incurring unwarranted costs.

38 Concerning indemnity costs I am of the view that indemnity costs should not be awarded but ordinary costs. The applicant has unfortunately been through a long process, much of which is unnecessary, but I do not think that it would trigger indemnity costs being awarded in the circumstances of the case. Furthermore, in my assessment of the facts even though the changes involve minimal environmental impact nonetheless they still require an application for modification of the original consent. The council has conceded to enter into consent orders and whilst this may have been done in a more timely way at the same time it has been entered into prior to the need for the applicant preparing or engaging further experts.

39 Therefore, on the basis of my findings for costs I will refer my recommendation that ordinary costs should be awarded to the Chief Judge for his concurrence in terms of s 69(8) of the Land and Environment Court Act. In this regard the exhibits shall be retained for the benefit of his concurrence role. Therefore I make no order as to costs at this stage.

40 For the determination of the modification application the Court Orders by consent:

1. The appeal under s 96(6) of the Environmental Planning and Assessment Act is upheld.
2. The application submitted to Mosman Municipal Council on 29 April 2004, to modify the development consent granted in December 2003 for a dwelling house on the land known as 2A Cyprian Way Mosman, is approved in accordance with Annexure “A”.
2. The exhibits are retained.

___________________

J S Murrell
Commissioner of the Court
rjs

Annexure “A”

Section 96 Modification to Development Consent No.8.2003.258.1

Guido and Michelle Beligiorno-Nettis v Mosman Municipal Council

Property No. 2A Cyprian Way Mosman

A s96

Condition No. 1.1 of that development consent No. 8.2003.258.1 is deleted and replaced with the following:

1.1 The development must be carried out in accordance with the following plans and documentation:

Plan Nos.	Date of Plan	Prepared by
S9601A to S9605A	1 August 2003	Jahn Associates – Architects
DA L 01A	1 August 2003	Jane Coleman-Landscape Architect
DA01 Stormwater	16 June 2003	Hugh Truman c/o Jahn Associates
29502A01.DXF A	16 April	Degotardi, Smith & Partners

Document Title	Date of Document	Prepared By
Modified statement of environmental effects	April 2004	Jahn Associates, Architects

All the other conditions of the development consent 8.2003.258.1 must be complied with together with the following additional conditions.

1.13 No approval is granted under Plan S9603A for a change to the approved garage floor level. The level is to be in accordance with previous plan (reference number DA07) by Jahn Associates and the letter to Council dated 26 August 2003.

5.21 To minimise glare nuisance, the reflectivity index of all new external glass surfaces to the balcony of the study on level 1 must not be more than 20%.

______________
J S Murrell
Commissioner of the Court
rjs