Lufi and Associates v Lane Cove Council

[2004] NSWLEC 309

Land and Environment Court

of New South Wales

CITATION:	Lufi & Associates v Lane Cove Council [2004] NSWLEC 309
PARTIES:	APPLICANT Lufi & Associates RESPONDENT Lane Cove Council
FILE NUMBER(S):	11630 of 2003
CORAM:	Bly C
KEY ISSUES:	Costs - Development Application :- Adjournment for revised plans and renotification
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 2003, Pt 16 (2)
CASES CITED:
DATES OF HEARING:	25/05/2004
DATE OF JUDGMENT:	06/22/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor SOLICITORS Storey Gough RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

22 June 2004

03/11630 Lufi & Associates v Lane Cove Council

JUDGMENT

1 This is an application for costs in relation to the appeal involving an on-site hearing and the Court's determination of DA 297/024. The development application is for additions to the front of the existing dwelling at 6 Lower Brooks Street, Linley Point, including a new glass enclosed internal stair and portico with a common pitched tile roof and an access ramp to the entrance of the dwelling.

2 The appeal was initially heard on site on 8th April 2004 when, having heard expert and neighbour's evidence the Court concluded that subject to certain changes, the proposal would be satisfactory. These changes comprise: the reduction in the size of the proposed stair enclosure, the deletion of the portico, which was to be an extension of the roof of the stair enclosure and its replacement with a lower flat roof structure. Landscaped areas are also to be provided.

3 The applicant immediately agreed to these changes and sought an adjournment to enable the preparation of amended plans. Notwithstanding an objection from the respondent, the Court agreed to the adjournment and plans were subsequently prepared and submitted to the respondent for further notification.

4 On 25th May 2004 the Court ordered, by consent, that the appeal be upheld and conditional development consent be granted.

5 Following the issue of the Court’s orders and as foreshadowed at the on-site hearing, the respondent handed up a notice of motion dated 25 May 2004 seeking orders that:

1 . The applicant pay the respondent council 's costs incurred as a result of the adjournment granted on 8 April 2004 and the leave granted to file amended plans,

or, in the alternative:

2. The applicant pay the respondent council's costs thrown away as a result of the adjournment granted on 8 April 2004 and the leave granted to file amended plans.

3. The applicant pay the respondent council 's costs in this notice of motion.

4. Such further or other orders as the Court may deem fit.

6 Notwithstanding that it is the usual practice of the Court not to grant costs in class 1 matters, Pt 16 of the Land and Environment Court Rules 2003 (as amended) relevantly provides that:

(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.

7 Rule 10 of the Land and Environment Court Practice Direction 1993 relevantly provides that:

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 Commissioners (as the case may be).

Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the party shall be informed of the 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.

The respondent's submissions

8 On behalf of the respondent, Mr Griffiths submitted that the granting of the adjournment and the allowance of the amended plans resulted in the costs of the council of the preparation for and participation in the hearing of 8th April being thrown away.

9 Alternatively, the granting of the adjournment and the allowance of the amended plans has given rise to additional costs on council's part. These costs arise as a result of forwarding the amended plans to its town planning and heritage experts and the consideration of the subsequent further expert reports together with council's solicitors ongoing brief in the proceedings. Objectors have been further notified in accordance with the Court' s Practice Direction

10 Mr Griffiths also argued that the evidence all pointed towards the decision of the Court and by inference the applicant should have amended the proposal at an earlier stage in the proceedings. This would have reduced costs. Instead the applicant waited until the case was essentially concluded before agreeing to prepare amended plans based on the Court's decision.

The applicant's submissions

11 In response Mr Gough submitted, on behalf of the applicant that an order as to costs would not be appropriate because what has happened in this case is consistent with the Court's approach to the resolution of Class 1 matters such as this. Moreover the approach has, all things considered, resulted in a better development.

12 Notwithstanding his own expert's evidence that the proposal was satisfactory, his client readily and promptly accepted the Court's findings and immediately agreed to amend the proposal accordingly. The changes are reasonable and minor. This approach has avoided further expenses on both sides, which would have resulted from a fresh development application that would have inevitably resulted.

13 As for the respondent's application for costs associated with the notice of motion, Mr Gough submitted that both parties had to return to Court in any event as a result of the Court's decision.

14 He nevertheless submitted that it would be reasonable for his client to pay the costs associated with the re-notification of the application.

Court's conclusions

15 There are a number of factors, which have led me to conclude that pars 1 and 2 of the notice of motion should not be granted.

16 First, the applicant is correct in the assertion that the process which here resulted in the granting of development consent is consistent with the approach of the Court in dealing with development applications where impacts can be resolved by reasonable and relatively straightforward changes.

17 Second, whilst the proposal was unacceptable in its original form it was not entirely without merit and could not have been described as an ambit claim. The expert arguments in support of the proposal, which although they were ultimately not accepted were not unreasonable. I do not accept that all of the evidence pointed to the decision made by the Court such that the changes to the proposal should have been made prior to the hearing of the matter.

18 Third, it is a relevant consideration that the applicant respondend promptly in accordance with the decision of the Court.

19 Whilst I agree that the applicant should pay the costs associated with the re-notification of the application I have decided that, in the circumstances of this case, it would not be fair and reasonable to make an order as to costs associated with either the preparation for and participation in the hearing or costs incurred following the on-site hearing. I also heard no argument sufficient to warrant the granting of costs associated with the notice of motion itself, particularly as it has been largely unsuccessful.

20 The orders of the Court are therefore that:

1. Paragraphs 1, 2 and 3 of the notice of motion dated 25 May 2004 are not granted.
2. Paragraph 4 of the notice of motion dated 25 May 2004 is, with the consent of the applicant, granted by the granting of costs associated with the re-notification of the application, such costs to be as agreed or taxed.
3. With the exception of Exhibit C the exhibits are returned.

___________________

T A Bly
Commissioner of the Court
rjs