Hassib Najjar v Hornsby Shire Council (No. 2)

[2004] NSWLEC 314

Land and Environment Court

of New South Wales

CITATION:

Hassib Najjar v Hornsby Shire Council (No. 2) [2004] NSWLEC 314

PARTIES:

APPLICANT
Hassib Najjar

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11558 of 2003

CORAM:

Brown C

KEY ISSUES:

Development Application :- Class1 application
costs

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Rules (Amendment No 8) 2003

CASES CITED:

DATES OF HEARING:

Written submissions by 29/04/04

DATE OF JUDGMENT:

06/25/2004

LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENT
Mr I Woodward, solicitor
SOLICITORS
Hornsby Shire Council

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11558 of 2003 Brown C 25 June 2003

Hassib Najjar
Applicant

v Hornsby Shire Council
Respondent

Judgment

Background
1 . This is an application for costs in relation to an appeal against the refusal by Hornsby Shire Council to issue an Occupation Certificate and to consent to alterations and additions to the dwelling house at 15A Morgan Street, Thornleigh. The modifications sought in the application have been constructed but were not in accordance with the plans approved by the council. The council also seeks an order for costs for the costs hearing.

2 . The appeal was heard as an On Site Hearing on 19 February 2004. Findings on the On Site Hearing were published on 4 March 2004. Further mentions took place on 23 March, 1 April and 7 April 2004.

The basis for an order for costs
3 . 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.

4 . 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.


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

The Occupation Certificate

The council's case
6. The council seeks all its costs in relation to the Occupation Certificate. It submits that the applicant has been advised, and all relevant times, that an Occupation Certificate could not be issued until the Building Code of Australia (BCA) requirements for termite protection, smoke alarms and balustrade height were addressed. These matters were made known to the applicant prior to the On Site Hearing. While the requirements for smoke alarms and balustrade height were satisfactorily addressed after the On Site Hearing, the issue of termite protection was still outstanding at the time of the Courts determination of the appeal on 7 April 2004.

The applicant's case
7. The applicant's submits that the time between the On Site Hearing and the first mention on 4 March 2004 was not sufficient to organise an appropriate termite protection certificate. The applicant further submits that this matter has never been argued or discussed in Court mentions beyond 4 March 2004.


Findings on Occupation Certificate costs
8. I accept the council’s submissions on this matter. The inadequacy of the documentation was explained to the applicant at the On Site Hearing by the council, and as explained prior to the hearing. The need to provide this documentation was endorsed by the Court at the hearing. The time between the hearing and the Courts determination of the appeal was some seven weeks and, in my view, is a more than reasonable time to rectify the deficiencies in the documentation. While the matter of the appropriate documentation for termite protection may not have been discussed at later mentions, it nonetheless remained an unresolved issue in proceedings. In my understanding, the documentation needed to satisfy the BCA was explained at length to the applicant and was ultimately accepted by the applicant. The outstanding documentation was not raised again because there was no dispute about what was required. The lack of the necessary documentation was the sole reason for the Court dismissing that part of the appeal relating to the Occupation Certificate and as such, the applicant should pay the council's costs.

S 96 Modification application

The council's case
9. The council does not seek costs for the On Site Hearing but for the time beyond this hearing. It is argued that the costs incurred by the council after the hearing were unnecessary and a direct consequence of the applicant's conduct. The applicant was given opportunities by the Court to reconsider his position regarding the appeal and to address the concerns of the council. These opportunities were largely wasted with the time used to argue matters already determined by the Court.

10. At the mention on 1 April 2004 the applicant produced a plan that turned out to be irrelevant to the proceedings. A further adjournment was necessary for the council to consider the plan and the Court to attend to other commitments. At the 7 April 2004 mention the plan produced at the previous mention was again produced and identified as having been previously been dealt with. At this mention, the council made further concessions to enable the matter to be settled however, the applicant wished to reargue every condition. Ultimately, the applicant accepted the proposed conditions of consent with the result that the appeal was upheld based upon agreed conditions. It was submitted that the agreed conditions were those that the council would have accepted at the On Site Hearing if the applicant had not taken an argumentative approach to everything put to the Court by the council.

The applicant's case
11. The applicant submits that no costs should be awarded for the modification application. The applicant argues that clarification was required from the council about the extent of work required by the conditions attached to the modified consent and to conform to the Court findings.

12. On 23 March 2004, the applicant submits that an intended meeting with the council did not take place despite numerous attempts by the applicant to arrange the meeting. Following this, the Court further adjourned the matter to 1 April 2004 to allow a further meeting to take place. At the mention on 1 April 2004 the applicant submits that a verbal agreement was reached at a previous meeting with the council however the council refused to put the agreement in writing. Additionally, the applicant maintains that the Court findings were incorrect, as they did not reflect the fact that the proposed landscaping and the brick fence along the access corridor to the dwelling had already been approved by the council.

13. On 7 April 2004, the applicant submits that prior to the hearing the council proposed amended set of conditions that were accepted, with some modifications by the applicant.


Findings on s 96 Modification application costs
14. On Site Hearing's are allocated for matters that are relatively straightforward and best addressed on site where the issues can be more readily understood. They are generally confined to one day or less and offer considerable benefits in time and costs for the parties and the Court when compared to Court Hearings. There can be no dispute that the issues in this appeal comfortably satisfied the requirements for an On Site Hearing. The issues in dispute are set out in detail in the findings published on 4 March 2004.

15. The approach taken by the applicant at the On Site Hearing necessitated an irregular course of action with the Court publishing its findings to ensure that the applicant understood clearly what the specific findings were and the reasons for those findings. The findings simply confirmed the verbal findings on the day of the hearing and provided the basis for the more specific details to be settled between the applicant and the council, thereby reducing further Court time and costs. The Court also explained the options that were available to the applicant; these being to accept the conditions of the consent and agree with the council to some modifications to those conditions and have the appeal upheld or alternatively refuse modification or acceptance of the condition and risk the appeal being dismissed. The reasons for these options were also spelt out in the published findings. The Court granted an adjournment for the applicant to consider his position on the basis of the findings.

16. The options available to the applicant were explained again on 4 March 2004 when the findings on the On Site Hearing were published.

17. I accept the council's submissions that the plans provided by the applicant after this date, in essence, frustrated the final determination of the appeal. They were irrelevant in the Courts consideration and only sought to extend the hearing of the matter. They did not contribute to the final determination of the appeal on 7 April 2004. The final conditions that were agreed to by the applicant were generally the same as those suggested by the council at the On Site Hearing.

18. Even though the applicant was self represented, the conditions at issue were not technical and dealt largely with matters such as the appropriate means of dealing with impacts brought about the building works that were not constructed in accordance with the approved plans. These involved matters such as the erection of screens and the provision of additional landscaping. Suggestions by the council to address the issues were largely and unreasonably resisted by the applicant. I am not convinced that the applicant, who was a builder and an engineer, could not have reasonably understood the issues raised by the council and the potential solutions to these issues suggested by the council.

19. In my view, the prolonged nature of this appeal was brought about directly by the applicant's reluctance to accept the Court findings given verbally at the On Site Hearing on 29 February 2004 and the dismissal of the reasonable solutions offered by the council to address the outstanding issues. Even at the final mention on 7 April 2004, the issues relating to the landscaping and the brick wall on the access driveway were still being challenged by the applicant despite clear findings given on these issues at the On Site Hearing (and in the written findings).

20. The council seeks its costs in relation to the time beyond the On-Site Hearing, being the mentions on 4 March 2004, 23 March, 1 April and 7 April 2004. For the reasons mentioned previously, I accept that it is fair and reasonable that costs be awarded to the council for these dates, but with the exception of 4 March 2004.

21. The On Site Hearing was adjourned to allow the Court to publish the findings given verbally at this time. This was to allow the applicant to fully understand the findings of the Court and allow the matter to be settled in accordance with those findings. At the time of the On Site Hearing, this approach was chosen largely because of the self-represented status of the applicant and an apparent lack of understanding of the Courts findings at the On Site Hearing. For these reasons, it is not fair or reasonable that costs be awarded for 4 March 2004.

22. The council also seeks its costs associated with the costs hearing. As the council has been successful in the majority of its submissions for costs, I accept that costs for the costs hearing is fair and reasonable in these circumstances.


Conclusion
23. For the above reasons, I am of the opinion that an order for costs should be made to the council for the costs incurred at the mentions on 23 March, 1 April and 7 April 2004.
Additionally, an order for costs should be made to the council for the costs associated with the costs hearing.

24. In accordance with cl 10 of the Land and Environment Court Practice Direction 1993, the parties are given the opportunity to make submissions to the Chief Judge on the question of whether he should give concurrence to the proposed costs order.

_______________
G T Brown
Commissioner of the Court
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Annexure “A”
Conditions of Consent
Hassib Najjar v Hornsby Shire Council


SECTION 96(2) AMENDMENT (DA No. 539/00A)

THAT pursuant to Section 96(2) of the Environmental Planning and Assessment Act 1979, Development Application No. 539/00A to modify development consent, approve the addition of a balcony and associated door and changes to landscaping; approve changes to the modified garage roof design and refuse changes to the garage roof material; and also refuse dispensation with the screen planting subject to the following:

Addition of Conditions

36. To protect the privacy of adjoining residents to the north, obscure glass to height of 1.5m shall be installed along the northern side of the rear balcony.

37. To protect the privacy of adjoining residents to the north, a rigid framed capped lattice screen (commencing 10m from the north-western corner of the site) to a height of 700mm shall be erected on top of the existing northern boundary fence for a length of 20m (where it abuts the brick boundary fence) as shown on plan Dwg No. L.01 dated 15 /10/03.

38. To protect the privacy of adjoining residents at No 19 Morgan Street, it is necessary that the approved screen planting be implemented in accordance with the approved landscaping plan (Dwg. No. L.01 prepared by Cedar Management entitled “Original Development Consent Landscape Plan” filed in the Land & Environment Court 17, Dec 2003), or alternatively an agreement be reached with the affected residents for screen planting to be carried out within their property at the applicants cost. A copy of the signed agreement shall be provided to Council.

39. To enhance residential amenity, 1 advanced tree in 25-litre container size, ,of local native species and capable of growing to a minimum height of 4m at maturity shall be planted in the existing planter area. The tree shall be located 4m from the patio.

40. As a consequence of not being able to provide landscaping around the rear of the garage and dwelling that would otherwise have enhanced residential amenity of the adjoining residents at premises No. 15 Morgan Street, a 1.2m high close-formed capped lattice screen or a screen acceptable to the Council shall be provided on top of the existing dividing fence commencing 2m from the south-eastern corner of the site for a distance of 5m as shown on plan Dwg No. L.01 date 15/10/03.

41. Replace the colorbond roof over the garage with black tiles consistent with the tiles on the dwelling house. The tiled roof shall extend to the edge of the existing concrete box gutters.

__________________
G T Brown
Commissioner of the Court
rjs