Gertos v Eurobodalla Shire Council

[2005] NSWLEC 517

Land and Environment Court

of New South Wales

CITATION:

Gertos v Eurobodalla Shire Council [2005] NSWLEC 517

PARTIES:

APPLICANT
Shaunya Gertos

RESPONDENT
Eurobodalla Shire Council

FILE NUMBER(S):

11364 of 2004

CORAM:

Moore C

KEY ISSUES:

Costs - Development Application :-
Costs of amendment to plans
.

LEGISLATION CITED:

Land and Environment Court Act 1979 s 69(8)

CASES CITED:

Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] [2001] 115 LGERA 259

DATES OF HEARING:

29 April and 1 November 2005

 
DATE OF JUDGMENT: 

09/30/2005

EX TEMPORE JUDGMENT DATE:

11/01/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport, barrister (29 April)
Mr J Xenos, solicitor (1 November)
Xenos Lawyers

RESPONDENT
Mr D Briggs, solicitor
D G Briggs & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

1 November 2005

04/11364 Shaunya Gertos v Eurobodalla Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

Amended Plans

1 Commissioner:The application is for a beach house at at 26 Maloney’s Drive, Maloney’s Beach (the site). I am satisfied that the amended plans reflect what was discussed during the course of the onsite view and the subsequent discussions in the Local Rural Fire Service station. I am also satisfied that the plans deal both with the range of matters that were of concern to me and, as appropriate, the range of matters that were of concern to the resident objectors.

2 Therefore the appeal is upheld on the basis of the revised plans. The consent will be subject to the agreed conditions which will attach to the orders.

Costs

3 The council applies for its legal costs of $5,728.15 since (but not including) the date the matter was originally before the Court on site.

4 When I originally attended at the site earlier this year to consider plans for the proposed beach house those plans were clearly, from their face, not capable of being given a consent in their then form.

5 Rather than dismissing the appeal, following discussions that day with the parties and discussions, also that day, between the parties and not involving the Court, the matter was adjourned to enable the applicant to submit amended plans to respond to the concerns both of the residents and those which arose from my preliminary views, conveyed to the parties during the course of the view and subsequent discussions. These concerns related primarily to the roof form of the proposed dwelling. This was the single design element that would have rendered it unacceptable in its originally proposed form.

6 It is now the accepted practice of this Court that with respect to liberty to amend plans (where a proposal is capable of being given a consent subject to those amendments but would not be given a consent in its original form), that leave to amend and adjournment for that purpose is usually given on terms which include the additional legal costs and other processing costs to the respondent council of considering and dealing with those plans.

7 Had such an application been made at the time, the order which would have been made, on an interlocutory basis during the proceedings, would have encompassed the future legal and other costs of the council in re-notification these latter effectively being the equivalent of a further development application fee. It may have been given as an englobo sum (see, for example the decision of Bignold J in Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] [2001] 115 LGERA 259).

8 Such an order would not, being an order for an adjournment on terms, have required the consent of the Acting Chief Judge pursuant to s 69(8) of the Land and Environment Court Act 1979 (the Court Act).

9 Such a broad order is not sought at this stage and, on my understanding of the law, could not now properly be sought. What is now sought is the additional legal costs incurred by the council as a direct consequence of the council’s preparedness to accept revised plans to render acceptable that which would have otherwise been unacceptable.

10 If an applicant is to be given the indulgence of remedying the defects to a proposal which defects would otherwise have been fatal, the council ought not be obliged to incur unnecessary additional legal expenses in the process.

11 The trade off for the process which was undertaken is that the applicant is to receive a consent in these circumstances without having to go through a further development application process (with its attendant delays) and without having to pay a further development application fee to the council.

12 Under all the circumstances – particularly that any consideration of the original plans was doomed to failure - I consider it is fair and reasonable that the applicant pay the council’s additional legal costs sought in the sum of $5,728.15 – being the legal costs incurred by the council after the date of the adjournment for the presentation of revised plans.

13 Subject to the concurrence of the Acting Chief Judge after his consideration of any submissions the parties may wish to make, orders will be issued to that effect.

14 Those costs proposed to be ordered, which are subject to the concurrence of the Acting Chief Judge pursuant to s 69(8) of the Court Act, will be the subject to the provision to the parties of:

o a copy of the draft order; and
o a relevant extract of the Consolidated Practice Direction

15 I draw to the parties’ attention to the fact that from the date of provision of the transcription of this decision and the draft order, they have a period of 14 days to make any written submissions or to seek to be heard by the Chief Judge concerning those proposed orders.

16 The second order will be that such sum is to be paid within 60 days of the provision of the written orders, with the concurrence of the Acting Chief Judge, giving effect to this decision.

Tim Moore
Commissioner of the Court