Ervin Mahrer and Partners v Strathfield Municipal Council
[2000] NSWLEC 245
•11/30/2000
Reported Decision: 111 LGERA 308
Land and Environment Court
of New South Wales
CITATION: Ervin Mahrer and Partners v Strathfield Municipal Council [2000] NSWLEC 245 PARTIES: APPLICANT:
RESPONDENT:
Ervin Mahrer and Partners
Strathfield Municipal CouncilFILE NUMBER(S): 10088 of 2000 CORAM: Bignold J KEY ISSUES: Costs :- Hearing of class 1 proceedings vacated on Motion of Council on account of Applicant’s conduct in the litigation. Whether Council entitled to an order for costs of the Motion and costs thrown away by virtue of the vacation of the hearing dates
LEGISLATION CITED: CASES CITED: Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91;
MacDonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211;
Tenstat Chullora No. 2 Trust v The Valuer General & Anor [2000] NSWLEC 212.DATES OF HEARING: 12 July 2000 DATE OF JUDGMENT:
11/30/2000LEGAL REPRESENTATIVES:
APPLICANT:
Mr M Astill, Solicitor
SOLICITORS:
Blake Dawson WaldronRESPONDENT:
Mr D Baird, Solicitor
SOLICITORS
Price Waterhouse Coopers
JUDGMENT:
IN THE LAND AND Matter No . 10088 of 2000
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 30 November 2000
ERVIN MAHRER & PARTNERS
Applicant
v
STRATHFIELD MUNICIPAL COUNCIL
Respondent
JUDGMENT ON COSTS
Bignold J:
A. INTRODUCTION
1. On 12 July 2000, on the Notice of Motion filed 7 July 2000 by the Respondent (the Council), I vacated the hearing dates that had been fixed for the hearing on 12 to 19 July 2000 of the pending Class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 against the Council’s deemed refusal of the Applicant’s development application for a development that had been described as:
- Demolition of building at 73 Parramatta Rd (Old Strathfield Library). Part conversion of 55-57 Parramatta Rd (Homebush Theatre) to serviced apartments, erection of serviced apartments and commercial space at 59-67 and 71-78 Parramatta Rd and 14-26 Powell Street, Homebush.
2. The order vacating of the hearing dates had not been opposed by the Applicant for reasons that will become apparent.
3. However, the Applicant did oppose the Council’s application for an order that the Applicant pay the Council’s costs thrown away or the costs of the Motion.
4. On that occasion, I reserved the question of costs that had been keenly debated. This judgment deals only with that question of costs.
B. THE HISTORY OF THE LITIGATION
5. The proceedings were commenced on 3 February 2000.
6. On 31 March 2000 the Council filed its Statement of Issues in the proceedings raising 25 separate issues.
7. On 4 April 2000, the Council filed a Notice of Motion seeking the determination by a judge as a preliminary issue, of a point of law concerning the true characterisation of the proposed development. That Motion was settled between the parties upon the basis that it was agreed that the proposed development was for “residential flat buildings with a commercial component”, the Council consented to the Applicant’s amendment of the development proposal and the Court on 6 April 2000, by consent, gave directions including a direction that the Council “notify the amended application in accordance with its applicable codes and policies”. (It is common ground that the proposed development is “advertised development” in terms of the EP&A Act).
8. On the same day, the Court specially fixed the hearing of the proceedings of 12 to 19 (incl) July 2000.
9. On 19 May 2000, the Council filed its amended Statement of Issues with similar content to that contained in the Statement of Issues filed 31 March 2000 (It is to be noted that many of the issues concern the proposal’s non-compliance with the Strathfield Development Control Plan No 20—Parramatta Road Corridor Area.)
10. On 7 July 2000, just one week before the scheduled commencement of the hearing, the Council filed its Notice of Motion seeking the vacation of the hearing dates and an order for its costs thrown away. The Motion came before Talbot J as the Duty Judge on 10 July 2000 when his Honour vacated the first hearing day and adjourned the Motion to that day for hearing by me as the trial judge, giving directions for the filing of affidavits by the next day and reserving costs.
C. THE EVIDENTIARY BASIS FOR THE COUNCIL’S ADJOURNMENT APPLICATION
11. The Council’s Motion is supported by the affidavit of Mr To (Solicitor in the employ of the Council’s Solicitors) sworn 7 July 2000. It reveals that on 29 June 2000 Council’s Solicitors received from the Applicant’s Solicitors four statements of evidence prepared by experts retained by the Applicant, together with “marked up architectural plans of the proposed development which clarify the proposed development’s compliance with the Building Code of Australia”.
12. Although Mr To was to form the view that the marked up plans (the revised plans) were different from the plans originally filed in the proceedings, and upon which the Council’s experts had relied in preparing their evidence, this did not occur until 6 July 200 upon receipt by Mr To from the Applicant’s Solicitors of the expert report of Mr Rossello, when Mr To was alerted to the fact that Mr Rossello’s evidence was addressing plans of the development proposal different from the plans that had been filed by the Applicant in the proceedings.
13. Thereupon, Mr To brought these different plans to the attention of the architect and the town planner who had prepared expert evidence in the Council’s case. Both these experts furnished Mr To with urgent advices on the implications for their expert assessments of the revised plans. In a word, it was their opinion that the submission of the revised plans rendered irrelevant most, if not all, of their earlier expert assessments and the revised plans would require their re-assessment.
14. Mr To’s affidavit further notes that all the Applicant’s expert reports filed in the proceedings were based upon a development comprising 254 residential apartments when in fact the development plans reveal some 270 residential apartments. This discrepancy in the Applicant’s description of the proposal as proposing 254 residential apartments when in fact the plans reveal 270 residential apartments can be traced back to the statement of environmental effects that accompanied the original development application when lodged with the Council and this discrepancy was not appreciated at the time when the Council publicly notified the proposal, with the result in Mr To’s opinion, that the public may have been misled by the incorrect description of the proposal as involving 254 residential apartments when in fact it proposed 270 residential apartments. In his opinion, further public notification would be necessary to correct the misrepresentation that had occurred in the two previous public notifications of the proposed development.
15. In further support of its Motion, the Council relies upon the affidavits of Mr Lester Tropman and of Mr Ross Fleming, each sworn 10 July 2000 and on the further affidavit of Mr To sworn on 21 July 2000.
16. Mr Tropman, who is a heritage conservation architect retained by the Council in the proceedings, expresses the opinions that the revised plans depicted “significant variations to the proposed refurbishment of the heritage item (building 2)” and that the re-siting of proposed building 1 closer to the heritage item would “impact on the context and scale of the heritage item and its landmark status in the streetscape”.
17. Having identified a number of “versions or changes in the new plans”, Mr Tropman says that he would need more time to assess the revised plans.
18. Mr Fleming is a town planning consultant retained by the owner of the property situate at No 69 Parramatta Rd, Homebush adjoining the development site which had objected to the proposed development. Following advice from the Council’s Solicitors of the submission of the revised plans, Mr Fleming had inspected them and formed the opinion that “there have been significant changes to the development including re-design of the carpark, addition and re-sizing of balconies, widening of the vehicular exit onto Parramatta Road and the re-sizing of building No 1 to the east of his client’s property”.
19. Mr To’s second affidavit sworn 11 July 2000 contains advices he had received from (i) the Teachers Credit Union which had objected to the proposed development, claiming to be prejudiced by not having the opportunity of examining the revised plans; and (ii) Mr Craig McLaren, a traffic consultant retained by the Council in the proceedings who claimed to not be able to assess the revised plans within the time available before the fixed hearing.
20. The Council called evidence from Mr Pickworth, consultant architect retained by the Council in the proceedings, who had earlier provided Mr To with a detailed synopsis of the differences between the original development plans and the revised plans. He was called in answer to the tender of a document containing the responses made by Mr Mahrer, the Applicant’s Architect, to the reports of Mr Pickworth and Ms Haertsch annexed to Mr To’s earlier affidavit (in which they each provide their respective opinions as to the significant differences between the revised plans and the original development plans). Mr Mahrer gave a spirited response to Mr Pickworth’s critique and to Ms Haertsch’s critique. Mr Mahrer’s overall response is encapsulated in the following Statement:
- The redesign issue is insignificant. The height and appearance of the buildings has not been changed. Minor shifts in the position of Buildings 1 and 5 do not have any impact on the merit assessment or sun access to any units. Balcony sizes in most cases comply with D.C.P. 20 as shown in the attached schedule.
Changes to the street facades are insignificant in planning / urban design terms.
Changes to the Ground Floor levels of Buildings 1 and 5 are minor and have no effect on the relationship of the development to the streetscape.
The term fine grain is meaningless.
The number of units is actually 269.
The plan of Level 5 of Buildings 1 and 5 is the same as Level 4.
21. The Applicant also relies upon the affidavit of Mr Clifford Ireland (Solicitor in the employ of the Applicant’s Solicitors) affirmed 11 July 2000 , which traverses much of the litigation history (and pre-history) and includes correspondence passing between the parties’ Solicitors in their respective preparations for the hearing of the proceedings. Some of this correspondence needs to be noted. On 26 June 2000, the Council’s Solicitors advised that “ (I)n the interests of avoiding unnecessary costs in the preparation and giving of expert evidence, we advise that Council proposes to address the following issues listed in the Statement of Issues by way of condition ”. Included in the Issues is Issue 24 which was in the following terms:
24. Whether the Court, as consent authority is satisfied that the proposed development is capable of complying with the BCA having regard to section 80A(11) of the EPA Act and clause 78A of the Environmental Planning and Assessment Regulation 1979 and in particular:
- (a) egress travel distances in relation to:
(i) the basement car park;
(ii) the ground floor of Building 2;
(iii) the residential floors of Building 2;
(iv) a stair discontinuity in Building 2;
(v) egress stair at northern end of Building 4, egressing through another building;
(b) stairs discharging to open space and the path of travel to a public road of basement stairs from car park and Building 4;
(c) only one fire isolated passageway on the ground floor of Building 3—BCA Part D1;
(d) lack of a fire control centre in Building 3—BCA Part E1-8;
(e) exceedances of fire compartment size provisions in the car park (BCA Table C2.2)
(f) western walls of Buildings 1 and 5 having insufficient setback from property boundaries. Eastern wall of Building 3 having insufficient setback from eastern property boundary to provide sufficient natural light to habitable rooms—BCA clause F4.2(b)(iii);
(g) lack of detail to assess the egress (and disabled access) from the childcare centre—BCA clause D1.2(d)(iii);
(h) windows of some units having insufficient setback for fire protection—BCA clause C3.2;
(i) lack of information to assess feasibility of window cleaning, particularly for Buildings 3—BCA clause G1.101;
(j) lack of information as to feasibility of waste handling within buildings and transportation of waste from buildings to waste storage rooms;
(k) lack of detail on mechanical ventilation and exhaust for the car park—BCA clause F4.11 and AS1688.2; and
(l) physical separation of ascending and descending stair flights—BCA D2.4.
22. The Applicant’s Solicitors response noted that expert reports were due to be filed on 28 June 2000 and “In view of this, we reserve the right to make an application for costs in relation to the preparation of any expert report rendered unnecessary due to Council’s decision not to press the issues referred to in your fax or to seek to have these issues resolved by way of conditions”.
23. It is to be noted that issue 24 is the sole issue addressed in Mr Rosello’s report, served on the Council’s Solicitors on 5 July 2000, the contents of which first alerted Mr To to the fact that the revised plans were significantly different from the original development plans.
24. This realisation gave rise to the Council’s Solicitor’s facsimile message of 6 July 2000 to the Applicant’s Solicitors in the following terms:
We refer to your facsimile dated 5 July 2000 transmitted 6 July 2000 purporting to serve a Statement of Evidence of Peter Roussello in these proceedings.
It is evident on reading Mr Rousello’s statement that he has made his assessment on the basis of plans different to those filed in the Court and the subject of these proceedings.
This is also contrary to the express representation by yourselves by your letter dated 29 June 2000 that:
We also enclose marked up architectural plans of the proposed development which clarify the proposed development’s compliance with the Building Code of Australia
25. This advice was followed up by the Council’s Notice of Motion filed 7 July 2000 seeking the vacation of the hearing dates and an order for the Council’s costs thrown away.
26. As I have earlier mentioned, that Notice of Motion came before Talbot J as Duty Judge on 10 July 2000, when he dealt with it in the manner I have indicated.
27. Later that same day, the Applicant’s Solicitors sent a facsimile message to the Council’s Solicitors headed “Without prejudice except as to costs”, which included the following:
I refer to your motion to vacate the hearing dates and now advise that I have instructions to consent provided there is no order as to costs.
I note that I first agreed to seek these instructions last Friday morning but said that I would need to see your evidence on the motion first.
I note that I first received the affidavit of Mr To sworn 7 July this morning at about 8.50am, despite your apparent attempt to fax the affidavit to my office at about 7.30pm on Friday night. As I advised you this morning, the only portion of the affidavit that came through at that time was annexures B, C, D and E, and no part of the text at all.
I and our client do not necessarily accept any of the arguments you presented this morning. Nevertheless, in our view, the amended plans should resolve many of the issues that were listed in your statement and this would be better and more cost-effectively established outside of a court room.
28. Later on the same day, the Applicant’s Solicitors sent a further facsimile message to the Council’s Solicitors consenting to the order for vacating the hearing dates sought in par 1 of the Council’s Notice of Motion, but not agreeing to the costs orders sought in par 2 and par 3 of that Motion.
D. FINDINGS ON THE EVIDENCE
29. My relevant findings based upon the foregoing evidence can be summarised as follows:
(i) one week prior to the scheduled commencement of the hearing of class 1 proceedings, the Council’s Solicitors and retained experts became aware that the revised plans of the proposed development that were served one week earlier (together with the Applicant’s expert reports) involved significant changes to the proposed development;
(ii) having become so aware, the Council’s Solicitors immediately notified the Applicant’s Solicitors that they would urgently approach the Court for the vacation of the hearing dates on the ground that the revised plans were an attempt to modify the development proposal in an unpermissible manner and that the existence of the plans had prejudiced the Council’s preparation of its case, inasmuch as the Council’s experts had assessed the development proposal as depicted in the original plans and not according to the revised plans, which latter task would require considerable additional work on their part;
(iii) the Applicant’s Solicitors accepted short service of the Motion which was made returnable on the following Monday and which came before the Duty Judge on 10 July 2000 and following reception of the Council’s argument, was adjourned until 12 July 2000.
(iv) After the appearance before the Duty Judge, the Applicant’s Solicitors notified the Council’s Solicitors later that day that they would consent to the vacating of the hearing dates on the basis that there would be no order for costs. Later that day, this advice was changed to a willingness to consent to the vacating of the hearing dates, but not to consent to the costs orders claimed in the Notice of Motion (namely costs thrown away by the vacating of the hearing dates and costs of the Motion);
(v) the revised plans depicted numerous and potentially significant changes to the proposed development as it had been originally depicted;
(vi) the Applicant’s preferred course was to rely upon the revised plans in preference to the original plans but it had not abandoned reliance upon the original plans;
(vii) whether the Applicant would be allowed to rely upon the revised plans was dependent upon a number of contingencies—
(i) whether the earlier public notifications of the proposed development (being advertised development) were adjudged to be satisfactory compliance with the statutory requirements in view of the misdescription of the proposal as involving 254 residential apartments when in fact the true and correct number was 270 (or 269) cf Litevale Pty Ltd v Lismore City Council (1997) 96LGERA 91;
(ii) if so, whether those earlier notifications would be sufficient compliance in the light of the revised plans;
(iii) if so, whether the Court in hearing the proceedings would grant leave to the Applicant to rely upon the revised plans; and
(iv) even if the Applicant were permitted at the hearing to rely upon the revised plans, whether there were fundamental difficulties confronting the Applicant inasmuch as only some of its expert evidence had addressed the revised plans whereas other parts of the expert evidence had addressed the original plans;
- (viii) the Applicant’s consent to the vacating of the hearing dates was virtually inevitable in view of the abovementioned findings, because of the formidable difficulties likely to be experienced by the Applicant scheduled in proceeding with its appeal at the hearing.
E. ADJUDICATION ON THE COUNCIL’S COSTS CLAIMS
30. In my opinion, the Council having successfully moved the Court for the vacation of the hearing dates on account of difficulties created by the Applicant’s belated reliance upon the revised plans is entitled to the costs of its Motion as heard initially by the Duty Judge, and finally by myself. For the present, I confine the costs on the hearing before me to the costs incurred in obtaining the vacation of the hearing dates. Although the Applicant, by the time the Motion came before me had consented to vacating the hearing dates, such a result could not be automatically assumed to have been achievable by the parties’ consent. The Court’s order was required and this necessitated the appearance before me, albeit on an uncontested basis, following the appearance before Talbot J a few days earlier.
31. In so concluding, I think the costs of the Motion are to be regarded as something distinct from the costs of the hearing of a planing appeal in respect of which the Court’ Practice Direction operates so as not to award costs in planning and building appeals unless the circumstances are exceptional.
32. This was the approach taken by Lloyd J in MacDonald v Mosman Council (No 2) (2000) 107LGERA 211which I followed in Tenstat Chullora No. 2 Trust v The Valuer General & Anor [2000] NSWLEC 212.
33. However, the Council’s claim to costs “thrown away” by vacating the hearing dates does, I think, need to be considered in the light of the Court’s Practice Direction concerning costs in planning appeals etc because the costs claimed are costs incurred in the planning appeal.
34. In this respect, justification for a costs order must, I think, be found in some established precedent or principle which has been recognised within t he context of the operation of the Court’s Practice Direction.
35. There are some obvious precedents or principles that readily come to mind that may provide analogical justification for an order for costs thrown away eg (i) costs ordered on an adjournment; (ii) costs ordered on an amendment to the pleadings; and (iii) costs ordered against a discontinuing party who discontinues the case without the consent of the other party.
36. The Council’s argument for costs thrown away embraced all of these analogies. Additionally, it advanced a more direct argument, namely that the Council should be compensated in costs because of the Applicant’s conduct in the litigation which had necessitated the belated vacating of the hearing, which the Council had been prepared for but based upon the original development proposal, where the costs of that preparation would be substantially wasted if the Applicant were to seek to rely upon the revised plans and the Council was required to prepare a further case based upon its assessment of the revised plans which would mean the incurring of additional costs.
37. The conduct of the Applicant that is relied upon by the Council is the following:
(i.) the Applicant’s belated reliance upon the revised plans which depict the proposed development significantly differently from the depiction contained in the original plans;
(ii.) the misdescription of the development proposal as containing 254 residential apartments when in fact it comprises 270 (or 269) residential apartments;
(iii.) the fact that some of the Applicant’s expert reports filed in the proceedings address the proposal according to the original plans whereas other experts address the proposal according to the revised plans; and
(iv.) the difficulties (legal and evidentiary) confronting the Applicant in its prosecution of the proceedings as a result of the foregoing factors.
38. It is, I think, necessary to analyse in closer detail, the Council’s argument for an order for costs thrown away, because it really proceeds upon truly alternate bases viz:
(i.) costs of preparing its case are either wasted in whole or in part, or are significantly increased by virtue of the Applicant’s belated reliance upon revised plans in preference to the original plans; and
(ii.) the difficulties confronting the Applicant in realistically proceeding with its appeal as a result of its conduct in the proceedings (eg the misdescription of the scale and size of the residential apartments component of the development, the belated reliance upon the revised plans, whether leave to rely upon them would be granted in view of the significance of the changes to the proposal and the legal difficulty caused by the public notification of the misdescribed development, and the fact that the expert evidence filed by the Applicant is inconsistent in its overall approach inasmuch as some reports address the original description of the proposal whereas others address the revised description of the proposal).
39. It must, I think be at once recognised that logically the alternate basis (ii) does not support a claim for costs thrown away.
40. Moreover, there is a fundamental difficulty in the Council’s argument seeking an order for costs thrown away inasmuch as it is founded upon the proposition that the Applicant has either abandoned or is bound to abandon its original proposal in preference for the revised proposal, whilever the proceedings remain on foot (which they currently do) and the ultimate position advanced by the Applicant in the proceedings is simply not known (as is the case at the present time).
41. Accordingly, it seems to me to be that the Council’s claim to costs thrown away, must inevitably be held to be simply premature because the proceedings remain on foot and the future course of the litigation, and more particularly the Applicant’s ultimate position in the litigation, simply cannot be anticipated at the present time.
42. It may be that in the fullness of time, the Applicant will seek to rely upon the revised plans to the exclusion of the original plans. This decision may involve the Applicant in agreeing that the revised plans need to be re-notified publicly in view of the misdescription of the proposal as twice previously publicly notified. Such a decision may result in the Council finding that it has incurred unnecessary costs in preparing its case against this original proposal and incurring additional costs in respect of its assessment of the revised plans.
43. Then again, it is possible that the Applicant will pursue its appeal on the basis of the original proposal and not rely upon the revised plans.
44. Further speculation as to what might occur in the future is just that—mere speculation which does not provide any justifiable foundation for an order for costs thrown away.
45. In so concluding, I accept that an order for costs thrown away may be made in appropriate cases where it is not already known that costs have been thrown away but where it can be reasonably anticipated that costs will be thrown away.
46. The present position that has been reached in the current litigation does not support a finding that costs have already been thrown away or that that result can be reasonably anticipated.
47. In these circumstances, I do not think that it would be appropriate to make, at the present time, an order for costs thrown away upon the contingency that that ultimate result may occur in the litigation.
48. For all these reasons, I do not think that Council’s claim for costs thrown away has been or can be substantiated. However, the principal basis for this conclusion is that the claim is simply premature based upon the existing state of facts concerning the Applicant’s pending appeal which remains pending in the Court and has not been disposed of, one way or the other.
49. However, this conclusion does not mean that the Council will be prevented at some stage in the future course of the present proceedings from seeking an order for costs thrown away, if it seeks to assert such an entitlement.
50. For the reasons earlier given, the Council is entitled to an order for costs on its Motion. These costs will include the costs of the hearing before me, because although I have held that the Council’s claim to costs thrown away must be rejected at the present time because it is premature, the hearing was nonetheless necessary to acquaint the Court with the circumstances that necessitated the vacating of the hearing dates of the proceedings, upon or so close to, the commencement of the hearing.
F. ORDERS
51. For all the foregoing reasons, I order the Applicant to pay the Respondent’s costs of the Notice of Motion in the sum agreed, or failing agreement, as assessed. The Exhibits may be returned.
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