Krivanek v Blue Mountains Council (No. 2)

[2004] NSWLEC 549

Land and Environment Court

of New South Wales

CITATION:	Krivanek v Blue Mountains Council (No. 2) [2004] NSWLEC 549
PARTIES:	APPLICANT Dr J F Krivanek and Mrs P A Krivanek RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10343 of 2004
CORAM:	Brown C
KEY ISSUES:	Costs :- Class 1 appeal
LEGISLATION CITED:	Land and Environment Court Rules (Amendment No 8) 2003
CASES CITED:	Anibal 21 Pty Ltd v Waverley Council 98 LGERA 296
DATES OF HEARING:	22/09/04
DATE OF JUDGMENT:	10/07/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Drury, solicitor SOLICITORS Phillips Fox RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

7 October 2004

10343 of 2004 Dr J F Krivanek and Mrs P A Krivanek v Blue Mountains City Council

JUDGMENT

Background

1 This is an application for costs in relation to an appeal (Krivanek v Blue Mountains City Council [2004] NSWLEC 462) against the refusal by Blue Mountains City Council (the council) of Development Application No. XO2/1888 for the erection of a development for older people or people with a disability. The application for costs is made by the applicant in the proceedings.

2 The location of the proposed development is 15 Hope St. and 8-10 View Street, Blaxland (the subject site). The proposal involves the consolidation of five lots into one lot, the relocation of an existing dwelling, the demolition of all other existing structures, the erection of 15 new dwellings and the strata subdivision of the 15 dwellings and the relocated dwelling.

3 The council filed a Statement of Issues containing two separate issues. Both issues related to the heritage implications of relocating the existing dwelling to another location on the subject site. The parties agreed to Mr Robert Staas as the Court appointed heritage expert.

4 The appeal was heard as an On Site Hearing on 3 Aug 2004 with a judgement delivered on 4 August 2004 upholding the appeal.

The basis for an application for costs

5 Prior to 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.

6 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.

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

The applicant’s case

8 Mr Drury, the applicant’s advocate, submits that an order for costs is justified based on the particular circumstances of the case. While it is accepted that the council sought to reduce the issues in the proceedings to a single issue dealing with the heritage aspects of relocating an existing dwelling, the overwhelming evidence suggested that this issue was not a sound basis for the refusal of the application.

9 The application had been placed before the council on three occasions and recommended for approval by council staff on all three occasions. The application was also subject to a review of the heritage implications by the applicant's heritage consultant, the council’s Heritage Adviser, an independent heritage consultant commissioned by the council, the Heritage Office of NSW and Mr Staas. All accepted that the relocation of the dwelling was acceptable in heritage terms.

The councils case

10 Mr Seton, on behalf of the council, opposes the costs application and any costs that may flow from the costs hearing. He maintains that it was not the role of the Court appointed expert to take the place of the consent authority. The council can make decisions contrary to expert opinion as part of the balancing of the many issues raised by a development application. In this case, the council maintained a consistent view based on the resident concerns. Mr Seton submitted that the council's position was not untenable and without plausible foundation. The council’s entitlement to have a different view to that of its officers (and other experts) is supported by the judgement of Talbot J in Anibal 21 Pty Ltd v Waverley Council 98 LGERA 296, even though the test in this case is based on "exceptional circumstances" rather than that the current "fair and reasonable" test.

Findings on costs

11 Pt 16 of the Rules states that no order for the payment of costs will be made unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.

12 In the particular circumstances of this case, I accept the applicant’s submission that it is fair and reasonable for a costs order to be made against the council.

13 In coming to this conclusion, I accept the general thrust of Mr Seton's submission that there is no obligation on behalf of the council to accept the opinion of its officers or other experts. The discretion of the council, however is not unfettered. The council has an obligation to consider the planning controls and other relevant matters when considering the issues that arise in the assessment of a development application.

14 In this case, the only issue was the likely impact on the significance of the dwelling to be relocated. The dwelling in question is a single weatherboard cottage built around 1914. It has significance as it forms part of a group of dwellings previously associated with the Reverend Joshua Hargrave and the evolution of the Blaxland Village. It is not an identified heritage item or located within a heritage conservation area. It is identified in the council’s 2002 Heritage Study as being part of a group of dwellings and having local significance.

15 Mr Seton's submission that the Court appointed expert couldn’t take the place of the council is clearly correct, however the strength of the applicant’s argument is found in the unanimous support for the relocation by the range of heritage experts that assessed the proposal. Mr Staas’ conclusions only support the views of the other heritage experts that assessed the application prior to his involvement in the application.

16 Like the elected council, the local residents do not have to accept the position offered by the heritage experts. They are clearly entitled to an opinion that may be inconsistent to that of the experts. However, it does not necessarily follow that this opinion should be preferred to that of the experts because of their local interest. For their submissions to be successful, their concerns must be based on sound heritage principles. The evidence on the history of the dwelling presented to the Court by the local residents was consistent with that provided by the experts. The significant difference being the residents position that the heritage significance should be placed at a higher level than the local significance classification suggested by the experts. In my view, this position is misplaced as the local significance classification is based on the standard inclusion/exclusion guidelines contained in the State Heritage Inventory listing process.

17 Mr Seton took the Court to the judgement of Anibal 21 Pty Ltd to support his submissions, however the circumstances in this case can be distinguished from circumstances of the proposed development. Importantly, the test of "exceptional circumstances" is more onerous than the "fair and reasonable" test that applies in this case. Also, His Honour states that the "material before the council in favour of granting the development application was not so compelling that only one answer was open to it". In this case, and despite the evidence of the local residents, I do not accept that there was any compelling heritage evidence to support a case against the relocation of the dwelling. In my view, the undisputed and overwhelming weight of heritage evidence in support of the application left the council with only one reasonable answer in their consideration of whether the relocation of the dwelling was appropriate. The answer was clearly that the relocation was an appropriate means of maintaining the local heritage significance of the dwelling.

18 The council had the benefit of five separate assessments of the heritage implications of the relocation prior to the hearing. All agreed that the relocation was acceptable and were based on the appropriate guidelines from the Heritage Office. In my view, these assessments provide a compelling and unchallenged basis for the acceptability of the relocation.

Conclusion

19 For the foregoing reasons, I am of the opinion that the council should pay the applicant’s costs, including the costs hearing, in the sum agreed or failing agreement, as assessed.

20 Inaccordance with cl 10 of the Land and Environment Court Practice Direction 1993, the parties are to advise the Registrar within 7 days whether they wish to make submissions to the Chief Judge.

_____________
G T Brown
Commissioner of the Court