Harb v Wyong Shire Council (No 2)

[2004] NSWLEC 724

Land and Environment Court

of New South Wales

CITATION:	Harb v Wyong Shire Council (No 2) [2004] NSWLEC 724
PARTIES:	APPLICANT S Harb RESPONDENT Wyong Shire Council
FILE NUMBER(S):	10631 of 2004
CORAM:	Brown C - Moore C
KEY ISSUES:	Costs :- Failure of Council to disclose existence relevant DCP
LEGISLATION CITED:
CASES CITED:	Harb v Wyong Shire Council [2004] NSWLEC 568
DATES OF HEARING:	21 December 2004
DATE OF JUDGMENT:	12/21/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M Fraser, barrister INSTRUCTED BY Norman Waterhouse Solicitors RESPONDENT Mr P Clay, barrister INSTRUCTED BY Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BROWN C
MOORE C

21 December 2004

04/10631 S Harb v Wyong Shire Council

JUDGMENT

1 The Commissioners: This is an application for costs by the unsuccessful applicant in the earlier merit proceedings: see Harb v Wyong Shire Council [2004] NSWLEC 568.

2 This application for costs has, in our view, two significant elements requiring our consideration.

3 The first is that it was a serious and inexplicable error, on behalf of the staff members of the council, involved in not drawing the attention of the applicant to the existence of Development Control Plan 81 (DCP 81).

4 The second matter is that in determining the appeal, the inability of the proposal to satisfy DCP 81 was not the sole basis for refusal.

5 It is clear, from paragraphs 91 and 92 of our earlier merits decision, that, quite separately, the design of the proposal was such as to place inappropriate constraints on the future redevelopment of adjacent sites in the absence of any express determination by the council of the appropriate future planning regime for the precinct within which the site is located.

6 We note that it is long settled law that the purpose of an award costs is compensatory and is not punitive. Had it been otherwise, our decision might well have been different.

7 At the commencement of the proceedings on the application costs, we suggested to the parties that it might be a convenient analysis to divide the costs into three parts. These were:

• The costs after Professor Toon concluded (and the Court was advised) that DCP 81 did not provide a basis for refusal for the application – effectively the commencement of the hearing on the second morning, 1 October;
• The costs of the work performed by Professor Toon on DCP 81 issues after the adjournment on 30 September together with any clerical support costs for that work; and
• The applicant’s costs up to the adjournment of the hearing on 30 September.

8 Having handed to the representatives of the parties an outline of that and the questions which we felt might arise from such a division, Mr Clay, barrister for the council, properly and promptly conceded to us that the second of those elements reflected costs which should be met by the council. He later clarified this by agreeing that it should be the actual costs so incurred.

9 Mr Fraser, barrister for the applicant, put to us that the absence of acknowledgement by the council of DCP 81 in any of its reports, the Statement of Issues in these proceedings or documents provided to council's own independent assessment panel so coloured the totality of the proceedings as to render the appeal futile from the beginning.

10 It was his submission that late amendment to the plans or a reconsideration of the design in light of matters raised by DCP 81 was not possible and that the election of the applicant to continue the proceedings on the second day was the only reasonable alternative available to the applicant.

11 Mr Clay, on the other hand, put that, had applicant sought an adjournment or sought to amend in light of DCP 81 being raised by the Court in the proceedings, the council would not have been in a position to resist such an application or resist an order for meeting of the costs wasted as a consequence of following such course.

12 We are left to consider what is “fair and reasonable” under the circumstances.

13 We do so accepting Mr Fraser’s proposition that there are no, in conventional terms, winners and losers in merit appeals in this Court.

14 We also set aside the second of the elements which we identified in light of the proper concession made by Mr Clay with respect to it.

15 Had this application had, as the only basis upon which it failed, the non-compliance with DCP 81, the applicant would have had a powerful and, perhaps, irresistible position with respect to a costs application for the totality of his costs.

16 However, this was not the case.

17 The design of the proposal was, also, unacceptable in the circumstances. It is the existence of this second element that we consider is fatal to the broader application for costs by the applicant.

18 We are not persuaded that the earlier bringing of DCP 81 to the applicant's attention would have resulted in a design of a lesser scale which would also have responded to the criticisms that otherwise were also fatal the appeal.

19 We note that Professor Toon maintained his support for the proposal after his assessment of it against the provisions of DCP 81. Any suggestion that he was not in a position to assess fully the proposal against DCP 81 must be rejected as no such submission was put to us following the adjournment on the first day.

20 We do not, therefore, consider that it would be fair and reasonable to go beyond the position conceded by Mr Clay as to costs.

21 We have also considered the question of whether or not the applicant should have his costs for today's costs hearing.

22 We consider this question in the context where there has been a concession, in face of an outline of how we considered it possibly appropriate that the matter addressed, that some element of the applicant's costs should be borne by the council.

23 This acknowledgement has not been made prior to today and was also, as correctly conceded by Mr Clay, not subject to any earlier prior offer of compromise by his client.

24 Similarly, however, there has been no offer of compromise by the applicant.

25 However, on balance, under the circumstances of the totality of the case and the fact that the applicant has had to come before us to obtain what Mr Clay has properly conceded is an absolutely irresistible element of recompense for its costs, we are satisfied that it would also be fair and reasonable for the applicant to have his costs of this costs application on agreed or assessed basis.

26 We therefore propose to seek the consent the Chief Judge pursuant to s69(8) of Land and Environment Court Act 1979 to the making of an order reflecting this decision.

27 A copy of the draft order which we propose is attached to this decision and the attention of the parties is drawn to the Practice Direction that they have 14 days from today to make any submissions in writing to the Chief Judge – including any submissions as to why they should be heard further on this matter by him.

Graham Brown Tim Moore
Commissioner of the Court Commissioner of the Court