CSA Architects Pty Ltd v Woollahra Municipal Council (No. 2)

[2004] NSWLEC 234

Land and Environment Court

of New South Wales

CITATION:	CSA Architects Pty Ltd v Woollahra Municipal Council (No. 2) [2004] NSWLEC 234 revised - 19/05/2004
PARTIES:	APPLICANT CSA Architects Pty Ltd RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	11466 of 2003
CORAM:	Brown C
KEY ISSUES:	Costs :- Class 1 development application
LEGISLATION CITED:	Land and Environment Court Rules (Amendment 8) 2003
CASES CITED:
DATES OF HEARING:	Written submissions by 05/04/04
DATE OF JUDGMENT:	05/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D Parry, barrister SOLICITORS Woolf Associates RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11466 of 2003

Brown C

19 May 2004

CSA Architects Pty Limited
Applicant

v

Woollahra Municipal Council
Respondent

Judgment

Background

1 . This is an application for costs in relation to the Courts determination of DA 759/2003/1 (the application) for alterations and additions to the dwelling at 5 Victoria Street, Watsons Bay. The appeal was heard as an On Site Hearing on 29 March 2004 where it was determined that the appeal should be upheld and development consent granted subject to conditions. Notice of an application for costs was made at the hearing and the Court accepted that an order for costs may be fair and reasonable based on the evidence presented at the hearing. Directions were given for the filing and serving of written submissions.

The application

2 . The application proposes alterations and additions to an existing dwelling, generally involving:

• construction of a glass and masonry addition to the southern side elevation,
• construction of a new pedestrian entrance through the existing retaining wall,
• replacement of the existing framed glass balustrading on the existing retaining wall and the first floor balcony, and
• new smooth face sandstone wall to the existing brick retaining wall.
The issues


3 . The council filed a Statement of Issues containing 5 issues. Issues 1 and 2 dealt with the glass balustrading on the ground level retaining wall and first floor terrace and the detrimental impact to the heritage significance of the Watsons Bay Heritage Conservation Area and the visual amenity of Sydney Harbour. Issue 3 dealt with the inadequate southern boundary setback, Issue 4 with the public interest and Issue 5 with issues raised by objectors. At the hearing, only Issues 1 and 2 were pressed by the council.

The council's consideration

4 . The appeal was lodged as a deemed refusal and as I understand remained undetermined at the time of the hearing. The development application was however the subject of a delegated authority report from council officers. This report was dated 18 March 2004 and recommended refusal for two reasons. These reasons related to be unacceptable appearance of the proposed glass balustrading on the ground and first floor levels. Relevantly, the report states:

The proposed frameless glass balustrading is inconsistent with the provisions of Part 5.4, in that it would not be sympathetic to the historical context of the existing dwelling and heritage significance of the surrounding Watsons Bay Heritage Conservation Area. Further, the proposed frameless glass balustrading would be reflective and would appear solid when viewed from water. This would detract from the visual amenity of this section of the shoreline of the Watsons Bay Heritage Conservation Area and is unsatisfactory.


5 . This report also contains details of a previous development application submitted to the council on 9 July 2001. The report describes the previous application as "essentially the same proposal as that currently before the council" . The previous development application was approved on 23 November 2001 subject to conditions but has since lapsed. Notably, the development consent contained conditions requiring amendments to the balustrading on the ground level retaining wall and the first level balcony. In general terms, these conditions required the proposed glass balustrading to be replaced with a combination of steel and timber balustrades with tensioned stainless steel cables. An identical form of balustrade construction was required in the council's without prejudice conditions for the application.

The basis for an order for costs

6 . 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 (the Rules) came into effect and amended the basis for costs in Class 1 cases. The relevant provision 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.

7 . This change to the Rules was accompanied by an amendment to the Land and Environment Court Practice Direction 1993 that relevantly reads:


10. Where an application for costs is made in proceedings that have been heard and determined by one or more Commissioners the application shall be made, to that Commissioner or those Commissioner's (as the case may be).

Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the parties shall be informed of that decision and the reasons for it and shall be given the opportunity to make submissions to the Chief Judge on the question of whether he should give concurrence to the proposed costs order.


8 . In this case, the applicant has asked to Court to invoke the provisions of Pt 16 of the Rules.

The applicant's case

The applicant raised the following reasons why an order for costs should be successful:

• the applicant succeeded in the appeal,
• while the council raised heritage and planning issues in relation to the replacement of the balustrade, it called no expert or lay evidence in relation to this issue. The applicant contends it was unnecessary to go to the expense of having to call a qualified expert to address these issues,
• the expert planning evidence the council sought to tender was contrary to Expert Witness Practice Direction 2003 or the previous Practice Direction, in that it did not contain an acknowledgement by the authors of their obligation to the Court, and
• the issues ignored the reality of the situation in that the development application was only for alterations and additions and the existing unsympathetic balustrades could have been retained.


The respondent's case

9 . The respondent opposes an order for costs for the following reasons:
• success in the appeal is not a basis for establishing fairness or reasonableness,
• the respondent was under no obligation to file and serve any expert statement evidence. The council officers report could be considered a Position Paper and as such the Expert Witness Practice Direction does not apply,
• while the respondent was unsuccessful in tendering the council officers report as a Statement of Evidence, the document would ordinarily form part of the council's bundle of documents. For this reason it is difficult to establish how the adducing of a council officers report would be unfair or unreasonable to the applicant, and
• the appeal process allows each party to put their case to the Court and the relevancy of any matters is a matter for the Court to determine.


Findings

10 . In relation to the applicant's submission that costs should follow the result, I accept the respondent's submission that this is not, in itself, an indication of fairness or reasonableness.

11 . Combining the second and third reasons, the essential difference between the parties is whether the council adequately defended the issues it raised. The applicant contends that it did not, as it provided no expert evidence. The council contends that the issues are adequately defended through the contents of the council officers report.

12 . It has been the practice in Class 1 matters for both parties to provide expert evidence on issues in the expectation that the Court will adjudicate on this evidence. However, as the Chief Judge has made plain, such an approach is not necessary in all cases. It must also be remembered that the Court brings a level of specialist knowledge to Class 1 proceedings because of the qualifications and experience required of a Commissioner by s 12 of the Land and Environment Court Act 1979 (the LEC Act). Additionally, s 38(1) of the LEC Act states Class 1, 2 and 3 proceedings "shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matter for the Court permit". Clearly, the emphasis is on the content and quality of the evidence that will allow the Court to carry out its statutory duty rather than the exclusive use of expert reports. In many, cases an issue raised by the council will be sufficiently supported by an understanding of the plans and an appreciation of the site and its environment. Although the calling of an expert may add another opinion about the matter it may add little if anything to the knowledge that the Court may need to resolve the issue.

13 . In this case, the council supported and explained the issues through the tender of the council officers report. The position, which the council adopted in relation to the balustrade, comes from the council's Heritage Officer, Mr Zoltan Kovacs. Although Mr Kovacs is no longer employed by the council, his report was used in the first application and replicated in the current application. While the Court did not form the same view as Mr Kovacs, I accept that the amendments sought by Mr Kovacs had some merit and were not entirely without a rational basis.

14 . Mr Rigg correctly submits that there is no obligation on any party to the proceedings to tender expert evidence. Indeed, as I have indicated earlier, the Chief Judge has on a number of occasions expressed concern that a "culture" has developed where expert evidence is thought to be required before a party can expect to succeed on an issue. This is clearly not the case. If there are deficiencies in an application these can be identified and explained to the Court which in many cases will not require expert evidence to understand the alleged difficulties or to come to view as to whether the proposed development should be approved.

15 . Mr Parry's submission that the council officers report could not be an expert report because it did not contain an acknowledgement by the authors that they had read the Practice Direction is correct, however it is not of great significance as the report was ultimately admitted into evidence as a document relating to the council's decision and accordingly of relevance to the proceedings.

16 . The applicant's submission that the opposition to the development application ignored the reality of the situation should be rejected. While the Court ultimately found in favour of the applicant on the merits, I am not convinced that the proposed development was not so lacking in merit as would justify an order for costs.

Orders

17 . For the foregoing reasons, the application for an order for costs is dismissed.

________________
G T Brown
Commissioner of the Court
rjs