Conomos v Mosman Municipal Council

[2005] NSWLEC 118

Land and Environment Court

of New South Wales

CITATION:

Conomos v Mosman Municipal Council [2005] NSWLEC 118

PARTIES:

APPLICANT
George Conomos

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

10854 of 2004

CORAM:

Tuor C.

KEY ISSUES:

Costs - Development Consent :- applicant sought costs of class 1 appeal

CASES CITED:

Conomos v Mosman Municipal Council [2004] NSWLEC 586

DATES OF HEARING:

28/02/2005

EX TEMPORE JUDGMENT DATE:

02/28/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Hold, solicitor
SOLICITORS
Verekers Lawyers

RESPONDENT
Ms S Duggan, barrister
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

28 February 2005

10854 of 2004 George Conomos v Mosman Municipal Council

JUDGMENT

1 This is an application for costs in relation to the appeal against conditions of a development consent to demolish an existing house and construct a two storey house and swimming pool at 33 Stanley Avenue, Balmoral. The consent was granted by Mosman Council on 23 July 2004 and the appeal was heard on 20 October 2004. I upheld the appeal for the reasons published in Conomos v Mosman Municipal Council [2004] NSWLEC 586. No order as to costs was sought or made at that time.

2 Prior to 2 February 2004 the practice of the Court was to award costs only where there were exceptional circumstances. From this date the Land and Environment Court Rules Amendment No. 8 2003 came into effect and amended the basis for costs in class 1 cases. The relevant provisions of Pt 16 of the Rules now reads:

(2) 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 .

3 In this case the applicant submits that it is fair and reasonable that costs of the whole appeal should be awarded. The basis for this submission is that: council rescinded its original approval for no reason; the applicant incurred unreasonable expense in defending an appeal by providing expert evidence when the Chief Judge had indicated that this was not necessary; that the height poles were required to be certified on more than one occasion (although no evidence of this was provided); that undue consideration was given to objector evidence and to a private covenant; and that the condition to lower the building by 500mm changed to being a requirement for 250 mm.

4 For the reasons put forward by Ms Duggan, for the council, I do not accept that costs should be awarded.

5 The key issue in the planning appeal was the impact of the development on the views from adjoining properties. The question is whether a consideration of views in this appeal was well founded on planning grounds or done in response to resident concerns.

6 I find that the consideration of views was well founded as it was one of the main grounds for the refusal of a previous appeal (Appeal No 10971 of 2003). The photomontages submitted as part of the current application indicated a similar view loss to that of the previous appeal. This was addressed in the council planner’s report of 17 May 2004, which recommended conditions that were later adopted by council, after the recision motion. It was only after the height poles were placed on the site that the experts for both parties realised that the extent of the view loss shown in the photomontages was not accurate and, as I understand it, this was just before the hearing.

7 The council and the applicant chose to bring expert evidence to address this issue. As stated by the Chief Judge, that although he considered the expert evidence to be unnecessary, it is not something that can be ordered by the Court. As stated in my judgment, the extent of expert evidence did seem to be excessive but this was a choice that the parties made.

8 On this basis I find that the making of the costs order sought by the applicant, in the circumstances of this particular case is not fair or reasonable.

9 The orders of the Court are:

1. The application for costs is dismissed.
2. The exhibits may be returned.
_________________
Annelise Tuor
Commissioner of the Court