Michael Barclay v Mosman Council (No 2)

[2005] NSWLEC 291

Land and Environment Court

of New South Wales

CITATION:	Michael Barclay v Mosman Council (No 2) [2005] NSWLEC 291
PARTIES:	APPLICANT: Michael Barclay RESPONDENT: Mosman Council
FILE NUMBER(S):	10942 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Costs :-
LEGISLATION CITED:	Land and Environment Court Act 1979, s 69 - Land and Environment Court Rules 1996 as amended - Land and Environment Court Practice Direction 1993
CASES CITED:	Tong Joo Pty Limited v Mosman Council [2001] NSWLEC 87 (4 May 2001) - Archiworks Architects Pty Limited v Sutherland Shire Council [2004] NSWLEC 690
DATES OF HEARING:	25/05/2005
DATE OF JUDGMENT:	06/03/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Barclay, owner SOLICITORS: N/A RESPONDENT: Mr S Griffiths, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

3 June 2005

10942 of 2004 Costs Michael Barclay v Mosman Council

1 Commissioner: On 1 December 2004, I granted conditional consent to a development application to alter and add to an existing dwelling at Lot 11 in DP 130191, being No 200 Spit Road, Mosman.

2 The main issue in the merit appeal was whether adequate landscaped area had been provided given that the proposal was to add a new first floor and an enlargement of the gross floor area of the dwelling, is the basis for the calculating landscaped area.

3 Under the provisions of cl 15 of the Mosman Local Environmental Plan 1998 and cl 4.4 - Landscaping in the Mosman Residential Development Control Plan the council may refuse development consent for the erection of a building in a residential zone unless at least the minimum landscaped area is 60% of the gross floor area is provided.

4 During the hearing, which began on 14 October 2004, the applicant sought an adjournment to amend the original plans to increase the landscaped area to more closely comply with the planning instrument. The hearing reconvened on 1 December 2004. Conditional consent was granted on the basis of the applicant’s amended plans to increase the landscaped area.

5 The amendment of the plans caused the council to expend its resources in reassessing the development application. The council is now seeking costs for that additional expenditure as set out in its submissions in support of its motion seeking costs in the amount of $8,063.59, comprising $5,295.93 expended for the adjournment to allow for amending the plans and $2,767.66 expended for the costs of the costs motion.

6 The notice of motion dated 7 January 2005 moved the Court for orders:

7 The costs application was supported by an affidavit of Ms N M Lowe, solicitor of the respondent sworn 7 January 2005.

8 Ms J Bright and Mr M Gardiner, agents for the applicant, opposed the making of the orders set out in para 5 in the amounts in para 6 above.

9 I have concluded that the applicant should pay the fair and reasonable costs of the respondent and I have approached the Chief Judge to concur in my provisional costs orders.

Basis for costs orders

10 The question for the Court is whether, in the exercise of its discretion under s 69(2) of the Land and Environment Court Act 1979, the Court should find that, in the circumstances of this particular case, it is “fair and reasonable” that the applicant should pay the respondent’s costs as sought by the council.

11 The Court’s discretion to order costs lies with s 69 of the Land and Environment Court Act 1979, that relevantly provides:

(2) Subject to the Rules and subject to any other Act:
(a) costs are in the discretion of the Court;
(b) the Court may determine by whom, and to what extent costs are to be paid…
(8) A Commissioner or Commissioners may not make an order under this section except with the concurrence of the Chief Judge,
(9) …

12 Part 16, rule 4, of the Land and Environment Court Rules 1996 as amended on 12 December 2003, relevantly provides:

(1) This rule applies to the following proceedings in Classes 1, 2 and 3 of the Court's jurisdiction:

Environmental Planning and Assessment Act 1979.

(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 the costs order is, in the circumstances of the particular case, fair and reasonable (Court’s emphasis added).

13 Paragraph 10 of the Land and Environment Court Practice Direction 1993, relevantly, provides:

10. Where an application for costs is made in the 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 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.

14 Mr Griffiths for the respondent submitted that:

“well below the requirements of the LEP and the DCP” (see paragraph 2.5 of his Statement of Evidence).

“there are many different landscaping solutions that could be applied to the site.” (see paragraph 2.9 of his Statement of Evidence).

i. “I am satisfied that the application can now be approved as the deficiency in landscaped area has been reduced.”

The applicant’s costs submissions

15 Ms J Bright and Mr M Gardiner, agents for Mr M Barclay submitted that:

1. The MLEP specifically excludes driveways and parking areas from the calculation of landscaped area. Mr Griffiths confirmed that this would be an incorrect interpretation of the words of the planning instrument.

2. Exhibits H and J respond to paras 16, 17 and 18 of the affidavit of Ms N M Lowe in Exhibit 12. Exhibit H was a letter from the applicant’s architect, Mr G Crick, dated 23 April 2005, concerning the filing by him of the amended drawings at the Court. Apparently, the amended drawings he delivered to the Court had been mislaid and as a result he considered that his “…client should not be held responsible for any delays or costs, as we did not ask for any adjournments, we followed the directions of the court and documents were submitted where and within the time directed.” Exhibit J was a letter from Mr A Mete of Harbord Property Lawyers, dated 23 May 2005, and confirmed that Messrs Mete and Crick met at the counter of the Court registry when Mr Crick was filing documents on the day in question. It was alleged by the applicant that the amended plans were lost or mislaid by the Court.

3. The applicant’s defence was that the plans were amended in the spirit of compromise, and Mr Barclay did not ask for an adjournment.

4. On it’s face; the present case and Archiworks v Sutherland are similar.

5. In Mr Barclay’s case, he is a pensioner and has a painful disease - complex regional pain syndrome - that can only be described as a “living hell”. Mr Gardiner submitted that only a handful of people live with this disease, and doctors know nothing about it. The Court cannot ignore it. As an observer, there has been a degree of personal antagonism between Mosman Council and the applicant. Mr Gardiner submitted that Janice [Ms Bright] and I have no knowledge of the Mr Barclay’s phone calls. He constantly mentions the discussion with an officer of the council set out in Exhibit L and the subsequent refusal by the council. Mr Barclay feels he is being penalised for seeking justice.

6. Mr Gardiner submitted that Mr Barclay is disabled pensioner, and is “…no bottomless pit of funds” and the Court should take that into consideration.

The respondents reply to submissions

16 Mr Griffiths submitted that:

1. Principles for costs for an adjournment are well set out in the referred cases and generally known. The facts in this case are on all fours with those other cases being Tong Joo Pty Limited v Mosman Council [2001] NSWLEC 87 (4 May 2001), and Archiworks Architects Pty Limited v Sutherland Shire Council [2004] NSWLEC 690.

2. It does not matter what transpired when Mr Crick filed the amended plans, as that did not give rise to costs to the council.

3. The point made by Ms Lowe [in her affidavit] was that those [amended] plans were never served on Pike Pike and Fenwick and Mr Barclay had mixed feelings in relation to those.

4. This fact of the applicant’s reluctance to provide amended plans is borne out in the letter of Crick in Exhibit H. “He is saying the Court imposed the adjournment. We agreed to the Court giving the adjournment.” The facts is that it was at his indulgence to put his plans in order. Otherwise the application would have been dismissed.

5. The pivotal issues are the principles referred to in submissions. It is not within the Courts province to know whether a female officer of the council made the comments attributed to her. It is not a matter to sway the costs issue. If that officer made those remarks, there are many venues in which to ventilate those concerns. For instance the Ombudsman’s office could be approached, or a complaint made to the Minister of Local Government, or a complaint under the Council’s Code of conduct. That is the proper way to deal with that not against the general principles as to costs.

6. Mr Barclay’s balcony could have been dealt with on 14 October 2004. This matter was only considered because of the deficiencies of landscaped area shown in the plans. This was despite this issue being brought to the applicant’s attention early in the case.

Findings

17 The applicant had been made aware of the inadequacy of the landscaped area provision when the council filed a statement of issues dated 25 August 2004. Landscaping had been clearly identified as the primary issue in the case. Despite this the applicant resisted increasing the landscaped area to bring it into greater compliance with the controls.

18 Mr Harding, consultant town planner for the respondent, provided evidence that “…there are many different landscaping solutions that could be applied to the site.”

19 The hearing was fixed for 14 October 2004 on-site. At the hearing the applicant sought an adjournment to allow him belatedly, to file an amended landscape plan, which would more closely meet the LEP and DCP requirements. I am of the opinion that it was appropriate in the circumstances that the application be brought into closer compliance with the council’s landscaped area requirements. At the on-site hearing, I urged Ms Bright to encourage Mr Barclay to increase the landscaped area and to reduce the area of hard standing. Mr Barclay did amend the plans and Mr Gardiner, who said he made a diary note, maintained that this was “in the spirit of compromise, and Mr Barclay did not ask for an adjournment”. He might hold this view, however, were it not for the amendment of the plans, they might not have been approved.

20 The matter was fixed for a further half-day hearing on 1 December 2004, also on-site, when the amended plans were considered.

21 As a result of the adjournment obtained by the applicant on 14 October 2004, the council was put to further expense in assessing that amended plans and incurred further legal expenses in relation to the matters set out in paragraph 21 of the affidavit of Ms N M Lowe in Exhibit 12 and supported by the summary of costs in the council’s written submission in Exhibit 11.

22 Despite being a litigant in person, the planning principles outlined in cl 15 of the Mosman Local Environmental Plan 1998 for a minimum landscaped area of 60% of the gross floor area of the dwelling, and in cl 4.4 - Landscaping in the Mosman Residential Development Control Plan, are plain. The landscaping issue was not a difficult planning concept to understand, however, the applicant, even today, through his agents, is declining to conclusively adopt the provisions of the MLEP and DCP or the need for an amended landscape plan.

23 I am satisfied that under Part 16 rule 4(2) of the Land and Environment Court Rules 1996 it would be “fair and reasonable” for the applicant to pay the costs of the respondent. I am satisfied that the amounts set out in the council’s submissions in Exhibit 11 are reasonable. Accordingly, orders will be made that the appellant pay the respondents costs in the amount of $8,063.59, comprising $5,295.93 expended for the adjournment to allow for assessing the amended plans and $2,767.66 expended for the costs motion.

Provisional costs orders
24 Subject to any submission the parties make within 14 days of this judgment the Court with the concurrence of the Chief Judge, orders:
1. That the applicant pays the respondent’s costs in the proceedings in the sum of $8,063.59.
2. The exhibits are retained for one month then returned.

S J Watts

Commissioner of the Court

sw