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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 563
Decision Date: 21 August 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with a case involving Castle Constructions Pty Ltd, the applicant, and North Sydney Council, the respondent. This matter was a continuation of proceedings initiated by the applicant against the respondent, focusing on the form of relief and the apportionment of costs. The applicant had previously sought judicial review of certain planning decisions made by the respondent. The key legal issues before the Court were the appropriate form of relief to be granted and the apportionment of costs between the parties, particularly given the applicant's partial success.

The Court addressed the form of relief first, concluding that the proposed declaration in the earlier judgment needed modification. The applicant had argued for a specific severance of a particular aspect of the planning map, which the Court found would not accurately reflect the intent behind the original document. Consequently, the Court altered the declaration to exclude the contested portion, ensuring the relief granted aligned more closely with the original planning intent. The parties then agreed on a revised declaration, which the Court accepted, effectively invalidating certain sections of the North Sydney Development Control Plan 2002.

Regarding costs, the Court considered the apportionment based on the principle that a successful party should not recover costs for issues on which they were unsuccessful. The applicant had succeeded in the main aspects of the case but was partially unsuccessful on one specific issue. The Court estimated that this unsuccessful aspect constituted about 20% of the total hearing time and preparation effort. Citing the principles from James v Surf Road Nominees Pty Ltd, the Court decided that it was appropriate to apportion costs, awarding the applicant 80% of their costs rather than the full amount.

The Court's final order was that the respondent would pay 80% of the applicant's costs, reflecting the partial success of the applicant in the proceedings. This decision balanced the need to compensate the applicant for their overall success while acknowledging the unsuccessful aspects of their case.

Orders