Millenium Projects Pty Ltd v Baulkham Hills Shire Council
[2004] NSWLEC 761
•12/01/2004
Land and Environment Court
of New South Wales
CITATION: Millenium Projects Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 761 PARTIES: Millenium Projects Pty Ltd (Appl)
Baulkham Hills Shire Council (Resp)FILE NUMBER(S): 10908 of 2004 CORAM: McClellan CJ KEY ISSUES: Costs :- Fair and reasonable costs
Special circumstances
Amended plans filedLEGISLATION CITED: CASES CITED: DATES OF HEARING: 1 December 2004 EX TEMPORE
JUDGMENT DATE :12/01/2004 LEGAL REPRESENTATIVES: J Wauchope (Sol - Resp)
D Briggs (Sol - Appl)
D G Briggs & Associates (Sol - Appl)
Maddocks Lawyers (Resp)
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMcCLELLAN J
WEDNESDAY 1 DECEMBER 2004
JUDGMENT10908/04 MILLENIUM PROJECTS PTY LIMITED v BAULKHAM HILLS SHIRE COUNCIL
1 HIS HONOUR: This matter comes before me this morning because the applicant seeks to file amended plans. I do not have a detailed understanding of the application but that is not necessary for determining the present application.
2 The applicant seeks to subdivide a large parcel of land at Castle Hill which apparently has some difficulties derived from a belief that parts of the site are unstable. The site is also relatively prominent and was formerly part of an undeveloped part of the Baulkham Hills Shire. However, in recent years, development has encroached closer towards the property and as a consequence, it is submitted by the applicant that the current development control plan requirements in relation to the land are no longer appropriate.
3 A combination of the assumed instability of the site and its original rural context, apparently caused the development control plan to provide a minimum lot size significantly greater than that which is conventional in the developed parts of Baulkham Hills. The applicant’s belief as to the appropriateness of those controls has meant that it has lodged an application to subdivide which provides for allotments significantly less in area than provided in the DCP.
4 When the matter was before the Court, it was decided that a court expert should be appointed to assist in its resolution. Mr Lindsay Fletcher, a well known town planner, was appointed and has conferred with the parties. He has suggested that the application in its current form may not be appropriate and as a consequence, the applicant now seeks to amend the application to alter the subdivision pattern from a total of eleven lots to a total of eight lots.
5 The Council does not oppose the lodgement of the amended plans provided that it is compensated for costs thrown away. It submits that an order in the sum of $6,800 plus GST should be made for those costs. That amount is comprised of half of the fees of Mr Fletcher for advising the applicant, after his first joint report to the parties, to assist in identifying the amendments which might be made to make the application more appropriate.
6 The Council also says that half of the costs of its lawyers, presently assessed in the sum of $12,000, will be lost if the amendment is allowed. It is submitted that it will be necessary to prepare a new statement of issues and a new statement of basic facts. It is also submitted that a significant amount of the work in preparation for defending an appeal based upon the original plans will be lost.
7 I am satisfied that an order for costs should be made. As the parties are aware, the Court has determined that in appropriate circumstances applicants will be allowed to file amended plans. The reason why the Court believes that this is an appropriate course to take, is to ensure that the greatest benefit can be obtained from the close examination of a development application which inevitably occurs during the course of the preparation for any hearing.
8 In recent times, the Court has adopted a policy of appointing court experts in many cases. This very often leads to the examination of the project by a person who has not been involved in its original formation and who is able to bring an objective eye to any problems and suggest appropriate changes. If the Court does not allow amended plans, in many cases the level of scrutiny and the advice available from the Court appointed expert can be lost. The applicant, instead of being able to pursue amended plans, would be required to withdraw the present application and make a new application to the Council. That application would then have to be assessed afresh and, if it was necessary, further proceedings pursued in the Court. By allowing amended plans the potential wastage of both public and private money, which would be involved in forcing applicants to lodge fresh applications can be avoided.
9 In combination with the use of court experts, the most efficient outcome will be to allow amended plans. However, it is also the case that when amended plans are allowed to be filed, councils may suffer by reason of a need to assess the amended application, with the costs, which have already been incurred in assessing the original application being lost. Those costs may extend to the cost of its lawyers, cost of experts and also the costs of advertisement of the application. The Court has said on a number of occasions that the price which an applicant can expect to pay, in circumstances where it seeks to lodge an amended application, will be an order for the costs thrown away by reason of the amendment. In most cases, the Court is aware that the parties reach agreement about those costs, both as to the need for the applicant to pay them and also as to quantum, however that has not occurred in the present case.
10 I am satisfied that, in the present case, the price which the applicant must pay for being allowed to file amended plans, includes the costs which the Council has incurred, the benefit of which has been lost by reason of the amendment. Those costs include half of the cost of Mr Fletcher in giving further advice following his original assessment of the project and also include a proportion of the solicitor’s costs which have been incurred today.
11 I am informed that the solicitor’s cost to date total $12,000, calculated at a charge out rate for a solicitor of $200 per hour. Those costs do not seem to me to be excessive, however only a portion of them will have been lost by reason of the amendment. That portion relates to the work done exclusively in relation to the original form of the application which will now be lost by reason of the amendment. I assess that sum doing the best I can, to be of the order of $3,000.
12 Accordingly, the orders I make are
1. The applicant is to file and serve any amended plans and further supporting documentation by 22 December 2004.
3. I order the applicant to pay the Council that sum on or before 29 December 2004.2. The applicant is to pay the Council’s costs thrown away by reason of the amendment which I assess in the sum of $3,800 plus GST.
13 I note that the council will notify the amended plans in accordance with its usual policy at the earliest available opportunity.
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