Carmichael & Others v Pittwater Council

[2004] NSWLEC 711

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Carmichael & Others v Pittwater Council [2004]  NSWLEC 711

PARTIES:
APPLICANT
Mark Carmichael,
Louise Carmichael,
Daryn Carmichael and
Josephine Natalie Carmichael

RESPONDENT
Pittwater Council

CASE NUMBER:      11112 of        2004

CATCH WORDS:     Costs

LEGISLATION CITED:
Land and Environment Court Act 1979

CORAM:        Hussey C

DATES OF HEARING:          24/11/2004

DECISION DATE:     22/12/2004

LEGAL REPRESENTATIVES

APPLICANT
Mr G McKee, solicitor
McKees Solicitors

RESPONDENT
Ms G Furness, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

23 December 2004

11112 of 2004  Mark Carmichael, Louise Carmichael, Daryn Carmichael and Josephine Natalie Carmichael v Pittwater Council

JUDGMENT

1. This matter concerns an application by Council for costs arising out of the following appeals, related to the various building works at 15 Powder Works Rd., North Narrabeen:

1.Appeal 10504/ 04; an appeal against a section 121 B Order to cease the use of property for alleged illegal building works.

2.Appeal 10505 / 04; an appeal against a section 121 B Order to cease the use of the property for the illegal land use, mainly Dual Occupancy.

3.Appeal 11112 / 04; an appeal against the refusal of a development application for alterations and additions to the property to facilitate its use as a dual occupancy.

1. The costs application by Ms. Furness is made in respect of Appeal 11112/04, because formal notification of its discontinuance was made on the 22 November 2004, shortly in advance of the hearing date of 24 November 2004.  Councils basic submission is that it should not be required to pay for costs, which were effectively “thrown away”, for this particular appeal.

1. However, Mr McKee for the applicant submits that the three appeals are interrelated to the various development issues on the subject site. Accordingly, time and resources were required by the parties in the preparation of appropriate cases, which should reasonably be borne by each party, in accordance with the usual practices.

1. It is apparent that a number of issues were identified and the appeals were joined.  Subsequently there was agreement by the parties to the appointment of several Court Appointed Experts (CAE), covering planning, traffic and geotechnical engineering.

1. These appeals were then set for hearing on 24 November 2004 and the CAE reports prepared accordingly. At this hearing, Consent Orders were made for the adjournment of the two Orders appeals, to allow the applicant time to obtain further expert advice.

1. With regard to the development appeal, the applicant gave notice of discontinuance on 22 November 2004 for this appeal and this was confirmed at the hearing on 24 November 2004.  Consequently, the respondent submits it has incurred unnecessary costs in preparing for this appeal and that it is fair and reasonable for the costs associated with this merit appeal to be allowed.

1. Ms. Furness submits that the applicant initiated the proceedings causing work to be done and then decided to discontinue after receipt of the CAE planning report.  This has caused the respondent unnecessary expense, which is analogous to "costs thrown away".  Furthermore, the notice of discontinuance was not formally notified to the council until 22 November 2004 and this introduced a lateness factor, which should also be taken into account in the assessment of costs.

1. Against this, Mr McKee submits that this situation is not analogous to costs thrown away in a matter, which is adjourned or not completed for some reasons.  Instead, he says that in this case, the discontinuance has led to the completion of the matter and therefore it is reasonable for each party to bear its own costs.
   

Conclusions.

1. Having considered the various submissions, I am satisfied that initially the three appeals were interlinked and this is confirmed by the fact that they were joined. Consequently the parties agreed to the appointment of the respective Court Appointed Experts to assist in the resolution of these appeals, presumably on the usual basis of the parties sharing these costs.

1. It appears to me that the presentation of these reports, particularly the planning report, has then assisted the parties to finalise their positions for the appeals. In this case, the applicant has decided to complete the merit appeal matter by discontinuing it. This is presumably on the basis that the determination of the other outstanding Orders appeals will resolve the overall planning situation at this property.

1. In the circumstances of this case, it appears to me that the parties initially agreed that there was a case to answer and it was reasonable for appointment of the Court Appointed Experts. Even though the applicant has subsequently decided to discontinue, so as to avoid further costs for both parties, I do not consider it fair and reasonable for the applicant to be required to pay for the complete costs of the Court Appointed Expert (planning) report, which has led to the completion of this particular appeal.

1. From the submissions made in this application, I do not accept the respondents submissions that these costs are analogous to “cost thrown away”, because these mainly apply in matters that are adjourned for the convenience for one of the parties and further costs are incurred, in the subsequent completion of the matter.  However in this case, the discontinuance has resulted in the actual completion of the matter and I do not consider it reasonable to penalise the applicant by allowing this costs application, in respect of the agreed Court Appointed Expert (planning) report.
   

Court Orders.

1. The cost application is dismissed.  

_________________________
R Hussey.
Commissioner of the Court
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