Castle Constructions Pty Ltd v North Sydney Council

[2007] NSWLEC 563

Land and Environment Court

of New South Wales

CITATION:	Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 563
PARTIES:	APPLICANT: Castle Constructions Pty Ltd RESPONDENT: North Sydney Council
FILE NUMBER(S):	41014 of 2006
CORAM:	Biscoe J
KEY ISSUES:	Judicial Review :- appropriate form of relief - Costs: apportionment of costs where successful applicant unsuccessful on discrete issue as argued at hearing
CASES CITED:	Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
DATES OF HEARING:	21 August 2007
EX TEMPORE JUDGMENT DATE:	21 August 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr T F Robertson SC and Mr J Lazarus SOLICITORS: Aitken McLachlan Thorpe RESPONDENT: Ms H Irish SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

21 August 2007

41014 of 2006

CASTLE CONSTRUCTIONS PTY LIMITED v NORTH SYDNEY COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This judgment is concerned with the form of relief and costs. It is consequential upon my reasons for judgment in relation to the substantive issues published on 17 August 2007: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459.

Relief

2 The declaration proposed in my judgment at [117], among other things, would sever figure 20.3 in the North Sydney Development Control Plan 2002 so as to save setbacks. The applicant has now persuaded me that it is not severable in that way and that severance would produce a result which would not fairly reflect the intent behind the figure. Consequently, I will exclude from that proposed formulation of the declaration the words “insofar as it shows massing and heights of buildings (but not setbacks)”.

3 The parties have agreed on the terms of a consequential declaration which is set out below as declaration 2. Therefore, the Court:

1. Subject to declaration 2, declares that section 1.1.fa and the map marked Building Height Map - North Sydney CBD and figure 20.3 in the North Sydney Development Control Plan 2002 are invalid and ineffective.

2. As a consequence of declaration 1, declares that the notional arcs depicted in figures 1.1 and 1.2 of the North Sydney Development Control Plan 2002 as at 20 September 2006, showing the stepping down of building heights along Miller Street and Berry Street, from the tallest buildings towards the boundaries of the North Sydney Centre, are reinstated together with the reference thereto in section 1.1.h.i.

Costs

4 The successful applicant seeks an order that the respondent pay its costs of the proceedings. The respondent submits that the applicant should have only 50 percent of its costs having regard to issues on which the respondent was unsuccessful and the timing of the judgment of the Court of Appeal in related proceedings, Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164, delivered after the hearing of this matter. In my judgment at [71], I expressed a conclusion that was fatal to the applicant’s invalidity case as originally argued. The judgment of the Court of Appeal founded the success of the invalidity aspect of the applicant’s case on a new point not previously argued. The respondent draws attention to the principles expressed by the Court of Appeal in James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34]-[36] concerning apportionment of costs where a successful party has failed on a discrete issue.

5 My impression is that the unsuccessful invalidity aspect of the applicant’s case represented approximately 20 percent of the hearing time and, I would infer, preparation time. This was a discrete and broadly quantifiable aspect of the case in respect of which in my view, it is appropriate not to award the applicant its costs.

6 I am not minded to dissect costs in relation to relatively minor matters on which the applicant was unsuccessful, nor matters which I indicated in my judgment it was unnecessary to consider.

7 Accordingly, the Court orders that the respondent pay 80 percent of the applicant’s costs.