Meehan v North Sydney Council - [2006] NSWLEC 598

Land and Environment Court

of New South Wales

CITATION: Meehan v North Sydney Council [2006] NSWLEC 598

PARTIES:
APPLICANT
MM Meehan
RESPONDENT
North Sydney Council

FILE NUMBER(S): 10945 of 2004

CORAM: Murrell C

KEY ISSUES: Costs :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

DATES OF HEARING: Written submissions on costs
2 and 8 November 2005, 6, 8, 9 & 13 February 2006,

DATE OF JUDGMENT:
09/25/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Bingham, solicitor and
Ms Z. Baker, solicitor
of Deacons
RESPONDENT
Ms G. Furness, barrister
Instructed by: Ms E. Glancey
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

Date 25 September 2006

10945 of 2004 M M Meehan v North Sydney Council

JUDGMENT ON PROVISIONAL COSTS
Summary

1 Previous judgments in this matter were for the class 1 merits appeal against the decision of North Sydney Council to refuse a development application for alterations and additions to a heritage item at No. 40 Kirribilli Avenue, Kirribilli. [Meehan v North Sydney Council (2005) NSWLEC 710 and 773] The appeal was ultimately upheld following adjournments and amended plans on two occasions.

2 This judgment is for costs in the proceedings that commenced prior to the 23 December 2005 change to the Practice Direction and since that time costs in class 1 merits appeal are now only heard by Judges of this Court. The former Practice Direction sets out the procedure to be followed by Commissioners, and this provides the opportunity for parties to make submissions to the Chief Judge who makes the final decision on costs.

3 In summary, the council is seeking the applicant pay its costs in the fixed sum of $56,000. The applicant considers this claim is excessive and the respondent should be required to provide particulars of its costs in the proper form or no further costs be ordered. Alternatively the applicant submits if the Court accepts the respondent’s ‘breakdown of costs’ document then costs should only be made in respect of: the vacation of the hearing date, 22 November 2004, in the sum of $3,265; costs of assessment of amended plans (option B) in the sum of $6,631. This provides a total sum of $9,896. In addition the applicant also accepts it is required to meet both parties’ share of the Court-appointed-expert’s fee from 16 June 2005 of $3,640 and this has been paid. It is noted that this amount is not included in the council’s claim of a fixed sum of $56,000.)

4 After having considered the parties’ submissions on costs, I propose to make an order, subject to obtaining the concurrence of the Chief Judge, that the applicant pay the respondent’s costs in the amount of $26,000.

Background

5 It is appropriate to set out a chronology of events as background to the claim for costs. While amended plans were ultimately approved by the Court, the proceedings were marked by unusual events.

6 Before the class 1 merits…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 598
Decision Date: 25/09/2006

CaseChat Overview and Summary

In the matter of Meehan v North Sydney Council, the applicant, M M Meehan, was appealing against the respondent, North Sydney Council, who had refused a development application for alterations and additions to a heritage item at No. 40 Kirribilli Avenue, Kirribilli. The applicant sought a review of the council's decision, and the appeal was ultimately upheld following adjournments and amended plans on two occasions. The case then proceeded to a determination of costs, with the council seeking a fixed sum of $56,000 from the applicant.

The court considered the legal issues surrounding the claim for costs and the appropriateness of the amount sought by the council. The court noted that the proceedings were marked by unusual events, including multiple amended plans and adjournments. The court emphasised the importance of assessing costs fairly and reasonably, taking into account the additional costs incurred as a consequence of the amended plans and costs thrown away in vacating hearing dates. The court also considered the applicant's right to appeal council's decision and the fact that the Court's decision did not result in an automatic awarding of costs against the applicant.

After considering the parties' submissions on costs, the court proposed to make an order that the applicant pay the respondent's costs in the amount of $26,000. This generally represented the additional costs incurred as a consequence of the amended plans and costs thrown away in vacating hearing dates. The court also noted that it was in the interests of the parties that the costs be determined on the basis of the information at hand.

In summary, the court held that the applicant should pay a proportion of the respondent's costs incurred during the lengthy proceedings, taking into account the amended plans and other factors. The court proposed an order for the applicant to pay the respondent's costs in the sum of $26,000 and sought the concurrence of the Chief Judge for the making of the costs order.

Orders