CBD Prestige Holdings Pty Ltd v Lake Macquarie City Council

[2005] NSWLEC 673

Land and Environment Court

of New South Wales

CITATION:	CBD Prestige Holdings Pty Ltd v Lake Macquarie City Council [2005] NSWLEC 673
PARTIES:	CBD Prestige Holdings Pty Ltd (Applicant) Lake Macquarie City Council (Respondent)
FILE NUMBER(S):	11067 and 11110 of 2004
CORAM:	Preston CJ
KEY ISSUES:	Costs :- Costs in planning appeal - order by Commissioner requires concurrence of Chief Judge
LEGISLATION CITED:	Land and Environment Court Act 1979
DATES OF HEARING:	24 November 2005
DATE OF JUDGMENT:	11/24/2005
LEGAL REPRESENTATIVES:	Mr J E Robson SC Instructed by Mr I Mitchell of Webster O'Halloran & Associates Mr G Newport, Barrister Instructed by Mr G Long of Lake Macquarie City Council

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON J

Thursday 24 November 2005

11067/04 and 11110/04 CBD PRESTIGE HOLDINGS PTY LTD v LAKE MACQUARIE CITY COUNCIL

JUDGMENT

1 HIS HONOUR: Lake Macquarie City Council (“the Council”) by Notice of Motion dated 22 July 2005 sought an order that the applicant, CBD Prestige Holdings Pty Ltd, pay the Council’s costs as a result of amendments to the development applications the subject of these two Class 1 appeals.

2 Commissioner Bly, in reasons for judgment delivered 13 October 2005, decided that the Council’s Notice of Motion should be dismissed and that the Council should pay the applicant’s costs of the motion in the sum agreed or, failing agreement, as assessed.

3 Commissioner Bly proposed that:

“The provisional orders of the Court (subject to the concurrence of the Chief Judge) are:
1) The notice of motion dated 22 July 2005 comprising an application for the application to pay the respondent’s costs as a result of the amendments to the development applications is dismissed.
2) The applicant’s application for an order for the costs of the preparation and conduct of motion is upheld, the respondent to pay such costs in the sum agreed, or failing agreement, as assessed.

4 By s. 69(8) of the Land and Environment Court Act 1979 (“the Act”), Commissioner Bly may not make an order for costs under s. 69 of the Act except with the concurrence of the Chief Judge.

5 In accordance with cl 10 of the Land and Environment Practice Direction 1993, Commissioner Bly invited the parties to advise the Registrar within 14 days whether they wish to make further submissions to the Chief Judge in relation to the matter.

6 In response to that invitation, the Council and the applicant each filed written submissions with the Court, the Council’s written submissions being dated 27 October 2005 (and referring also to the Council’s outline of submissions provided to Commissioner Bly dated 24 August 2005) and the applicant’s response being dated 11 November 2005 (annexing the applicant’s written submissions to Commissioner Bly dated 25 August 2005).

7 The Council submitted that concurrence should not be granted for a number of reasons and that instead it was fair and reasonable for the Court to order the applicant to pay the Council’s costs occasioned by the amendment of the development applications.

8 The applicant submitted that concurrence should be granted and that Commissioner Bly had not erred in deciding that there ought be no order for costs in relation to the amendments to the development application but that an order should be made that the Council pay the applicant’s costs in relation to the motion for costs.

9 A preliminary issue that arises in determining whether to grant concurrence, is the proper approach that ought to be adopted by the Chief Judge in determining whether to grant concurrence to an order proposed by a Commissioner or Commissioners under s 69 of the Act in relation to costs.

10 On 18 November 2005, I requested the parties to attend court in chambers for the purpose of giving directions for the preparation of further submissions on this question and the listing of the matter for hearing of oral submissions.

11 Mr Robson of counsel appeared for the Applicant and Mr Newport of counsel appeared for the Council. I directed each party to file an outline of submissions by 4pm on 24 November 2005 and listed the matter for hearing on 28 November 2005.

12 On 24 November 2005, the parties sought and obtained leave to re-list the matter in chambers. Mr Robson appeared for the Applicant and Mr Newport for the Council. Mr Robson and Mr Newport advised that the parties had reached a compromise in relation to the matter. Mr Newport advised that the Council withdraws its written submissions objecting to the grant of concurrence to Commissioner Bly’s orders and now submits that the Court should now concur with the decision of Commissioner Bly. Mr Robson and Mr Newport advised that the parties agreed that there should be no order for costs in relation to the objection to Commissioner Bly’s orders.

13 I should also note that, independently of the parties’ current position, I am satisfied in the circumstances of this particular case that the orders proposed by Commissioner Bly are appropriate.

14 Accordingly, I concur in the making of the orders proposed by Commissioner Bly (para 27 of his judgment).

15 I make no order for costs in relation to the objection to Commissioner Bly’s orders.

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