Minas v Botany Municipal Council

[1988] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION:	Minas v Botany Municipal Council [1988] NSWLEC 131
PARTIES:	APPLICANT Minus RESPONDENT Botany Municipal Council
FILE NUMBER(S):	10622 of 1987
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:	Kremer & Associates v. North Sydney Municipal Council (1982; McDonald Industries Ltd. v. Sydney City Council (1980)) ; Quota Corporation v. Leichhardt Municipal Council (1981); McCalden v. Newcastle City Council (1983)
DATES OF HEARING:
DATE OF JUDGMENT:	05/31/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: The Applicant by Notice of Motion seeks an Order that the Respondent pay his costs of a successful appeal brought in class 1 proceedings in this Court.

The Application for costs is made in accordance with the Court's Practice Direction No. 12 dated 16th November, 1987 which is in the following terms:-

"12. The practice of the Court is that no order for costs is made in Planning and Building Appeals unless the circumstances are exceptional.

As from this date a direction made by the Chief Judge that proceedings be heard by one or more assessors shall be interpreted as being a direction to hear the whole of the matter other than any question of costs.

Any application for costs should be made by notice of motion within 14 days of publication of the judgment."

The class 1 proceedings involved an appeal under s.97 of the Environmental Planning and Assessment Act against the decision of the Respondent refusing development consent to an application to convert an existing single storey dwelling situate at No. 4 Begonia Street, Pagewood into a dual occupancy involving a first floor addition to, and brick-veneering of, the existing dwelling.

The Respondent's refusal of development consent as notified to the Applicant was based upon the following reasons:-

"1. The proposed development is likely to have an adverse effect on adjoining properties by virtue of loss of sunlight, overshadowing and loss of views.

2. Unsatisfactory submissions have been received from the general public, concerning the subject development.

3. The proposed development is likely to have an adverse impact on the existing and likely future amenity of the neighbourhood.

4. The circumstances of the case, and the public interest in that Council cannot be assured that the 1980 and 1990 ANEF Plans accurately portray the 25 ANEF."

These were the issues debated before the Assessor at the hearing of the case which lasted 2 days. At the conclusion of the hearing the Assessor pronounced the Orders of the Court allowing the appeal and granting development consent (subject to conditions agreed upon by the parties) and delivered ex tempore reasons for judgment.

In seeking an order for costs Counsel for the successful Applicant accepts the existing state of authority in this Court on the question of costs in class 1 and class 2 proceedings. Thus he accepts the Court's practice as set out in Practice Direction No. 12 and undertakes the burden of establishing "exceptional circumstances" so as to justify an order for costs.

Counsel for the Applicant cited the familiar cases (quite few in number) where this Court has considered the question of costs in development appeals. In Kremer & Associates v. North Sydney Municipal Council (1982) 47 LGRA 209 Chief Judge McClelland dealt with the application for costs by the successful applicant at pp.219/220:-

"Finally, I turn to the question of costs. Mr. Ball pressed on me that this was a case in which a successful appellant was entitled to an order for costs. He referred to the general rule as to costs in development appeals enunciated by the court in McDonald Industries Ltd. v. Sydney City Council (1980) 43 LGRA 428 that in appeals from decisions of local councils the the parties should meet their own costs, unless some exceptional circumstances could be established. He submitted that this was a case in which such exceptional circumstances had been established. The council had been shown to be wrong in law as to the permissibility of the proposed development under the interim development order and the application was completely compatible with existing and permissible uses in the area. He cited in support of his argument the decision of Cripps J. in Quota Corporation v. Leichhardt Municipal Council (1981) 45 LGRA 319. In that case interim development consent had been granted by the council and extensions of tha

t consent were granted when substantial commencement was not made. Then, after considerable demolition and preparatory work had been done the council, having granted building approval for the project subsequently rescinded such approval His Honour decided not only that "the council's submissions were wrong in law and unfounded in fact" but that its real reason for refusing building approval was to give effect to a policy of council adopted after both development consent and building approval had been given. A perusal of his Honour's judgments on both the appeal and the application for costs makes it clear that he believed that the Council had not dealt fairly or reasonably with the application.

If errors of fact and/or law by councils were, in themselves, sufficient to ensure the success of an application for the costs of a successful appeal, there would be few instances in which such an order would be refused. In the present case the council had a discretion to withhold consent to the application and it did so in good faith even though, in my view, it misapprehended both the effect of the interim development order and the merits of the application. In those circumstances, I make no order as to costs."

Counsel for the Applicant cited the decision of Assessor Fitz-Henry ordering costs in favour of a successful applicant in McCalden v. Newcastle City Council (1983) 10 APAD 143. The relevant passages are at p.148:-

"At the conclusion of the hearing, Mr. P. McClellan made application for costs on behalf of the applicants. He claimed that his clients had experienced extraordinary delay in their attempts to obtain approval for this modest development. The development application had been lodged as long ago as October, 1981. They had readily accepted the advice provided by the respondent council by letter dated 7th January, 1982, and had submitted the amended application promptly on 2nd February, 1982. Notwithstanding the favourable recommendations of its officers the respondent council had taken until 3rd August, 1982, to advise his clients that the development should now be restricted to single-storey. As this was not, in their opinion, a practical proposition, an appeal to this court was necessitated. For the respondent council, Mr. Dunn claimed that council had acted responsibly in this matter, that it was not bound by the recommendations of its officers, nor obliged to approve developments that conformed with the devel

opment control plan. In this submission, he stated that, as a public body, the council must consider the interests of those most concerned, and in this he was referring to the objectors and not to the applicants.

The court is of the opinion that there has been a dereliction of duty by council in that it chose to ignore the professional advice of its officers and yield to persuasion based on premises which the evidence has shown had little foundation in fact; and consequently that it did not act in good faith in exercising its discretion to withhold consent to this application. (see Kremer & Associates v. North Sydney Municipal Council (1982) 47 LGRA 209). With the concurrence of the Chief Judge under s.69(8) of the Land and Environment Court Act 1979, the court will order that the respondent pay the applicants' costs of and incidental to the proceedings, and that in default of any agreement, the costs be taxed by the registrar."

As I understood the argument, by citing McCaldens' case Counsel for the Applicant did not intend to assert a lack of "good faith" on the part of the Respondent or a "dereliction of duty" on its part in the present case.

In passing I think that what the Assessor intended to convey in McCalden was her finding that the Council had not "dealt fairly or reasonably with the application". I take this view on a fair reading of her judgment not only because of her express reliance on Kremer but because of the absence of any findings recorded in the judgment which would justify the serious epiphets "dereliction of duty" and "lack of good faith".

The principal ground relied upon by the Applicant to establish 'exceptional circumstances' in the present case was the fact that the Respondent in its determination of the development application had totally misunderstood and misconceived the mid-summer shadow impact of the proposed development on the adjoining property No. 2 Begonia Street. It is conceded by the Respondent that this error occurred in the Respondent's Planning Department when it prepared shadow impact diagrams as part of its consideration of the development application.

The error only came to light so far as the Respondent was concerned 2 days before the hearing of the proceedings and only after the Respondent had received the expert report of Mr. Ball, an architect and town planner filed in these proceedings by the Applicant and exchanged before the hearing in accordance with the Court's practice. In his report Mr. Ball had stated (under the heading "Overshadowing") the following:-

"Council's only objection on this issue relates to summertime shadows cast in the afternoon on No. 2 Begonia Street.

The Applicant submitted a shadow plan showing summer shadows on No. 2 Begonia Street at 3p.m. As is normal in shadow assessments, the plan was taken directly from sunlight indicator charts and no correction was made for Daylight Saving. This means that the plan prepared showed the shadows which would actually be cast by the proposal at 4p.m. Daylight Saving rather than 3p.m. as listed on the plan.

In response, Council's planners prepared its own shadow plans - purportedly corrected for Daylight Saving. Unfortunately, they assumed that the 3p.m. shadows shown on the Applicant's plan must be lengthened rather than contracted as they should be. Council's shadow plans are in Appendix "I" and Appendix "J" of the statement of D. Cuthbert, Director of Planning and Environment and have been prepared on this misunderstanding.

Appendix "J" is the most detailed and recent of Council's shadow plans having been prepared especially for this hearing. It contains the following errors:-

1.Incorrect true north used.

2. Incorrect alignment (bearing) of shadows - even for the time meant to be shown.

3. No correction for various changes in ground levels between site and No. 2 Begonia Street; this difference is up to about 1.8 metres to the top of the swimming pool.

4. The overshadowing effect of the existing residence and fence at No. 2 Begonia Street on its own garden area is not shown.

5. The dimensions of the subject site and the location of the proposal are not accurately shown.

6. Shadows shown are for 5p.m. Daylight Saving rather than 3p.m. as claimed."

I have prepared a shadow plan for 3p.m. Daylight Saving in December which is 2p.m. celestial time. Contrary to Council's claim, the actual situation is that a small sliver of the land on No. 2 would be overshadowed by the proposal. The entire top of the pool would be in sun at 5p.m. Daylight Saving. It should be pointed out, however, that many people would prefer their property to be shaded from the westerly sun in summer.

In winter, the pool would not be overshadowed by the proposal at any time."

In her expert report filed and exchanged before the hearing the Respondent's Director of Planning and Environment had expressed opinions unfavourable to the proposed development based upon what subsequently came to be recognised as her erroneous assessment of shadow impact. For example in her expert report she stated, inter alia, -

".......... the recreation area at No. 2 Begonia Street will be virtually totally in shadow by 3p.m. in summer months."

In a supplementary statement presented at the hearing the Respondent's Director of Planning and Environment stated:-

"Council concedes that an error was made in the preparation of the shadow diagram indicating the effect of shadow at 3p.m. Daylight Saving Time.

Attached, marked Appendix "L", is an amended diagram. This diagram takes into account the variation in the levels of the two blocks.

Notwithstanding this, Council is still concerned with the overshadowing as indicated by the applicant in winter afternoons, particularly having regard to the limited area in the rear yard which is available for drying of clothes - refer photographs contained in my original evidence.

This overshadowing effect in winter will result in the lower section of the dwelling at No. 2 Begonia Street being almost totally in shadow between 12 noon and at least 3p.m."

(I interpose here that the shadow diagram Appendix "L" showed virtually no shadow impact on the adjoining property caused by the proposed development except for the smallest sliver of land and accorded with Mr. Ball's shadow diagram).

The Assessor in his judgment dealt with the question of overshadowing in the following passage:-

"Looking now at overshadowing, I cannot accept the opinion of Mr. Hertz that his property would in any way be materially affected by overshadowing from the proposed development. Overshadowing occurs of his property from other sources such as trees or from the building at No. 6 Begonia Avenue. The main concern in relation to overshadowing is whether from the owner of No. 2's point of view the pool on that property will be overshadowed. In the initial reports of the council's officers shadow diagrams did indicate that the pool would be significantly affected. However it appears that those diagrams were in error in a number of respects, and I accept the shadow diagrams and evidence given in this regard by Mr. M. Ball. In his opinion the pool at No. 2 would not be affected until 5p.m. daylight saving time on 22 December. In the winter time no shadow at all would be cast on the surface of the pool. It could be noted in this regard that the subject land is at a lower level than No. 2 and that in addition the pool i

s an above ground pool, and Mr. Ball took these matters into account. There will be some impact by way of overshadowing on the yard of No. 2 and this impact cannot be ignored, but all circumstances have to be looked at including the nature of what is proposed and the subdivision layout in the locality. I do not think that the extent of the overshadowing is such as to warrant a refusal of the proposed development."

It is clear, in my opinion, that the mistake on the part of the Respondent's Planning Department concerning the shadow impact of the proposed development on the adjoining property was a very material mistake. The crucial question that arises is whether it can be said that the error so influenced the course of the Respondent's dealing with the development application that had it not been made the Respondent would not have refused development consent and accordingly the litigation in this Court would have been avoided.

I pose the question in this way (rather than, for example, asking whether the Respondent is guilty of misconduct in the litigation which is an established basis for a Court declining a costs order in favour of a successful litigant) because it is legitimate to infer from the fact of the belated discovery of the mistake by the Respondent's Planning Department that the mistake and its impact on the decision of the Respondent which gave rise to the appeal to this Court was not drawn to the Respondent's attention so that the Respondent as a corporate body was not given an opportunity to review its earlier decision. (Nothing to the contrary was advanced on behalf of the Respondent on the hearing of the present Notice of Motion). This does not mean that the Respondent did not have the opportunity, albeit on the eve of the hearing, to withdraw its opposition. However in the context of considering the question of costs it is reasonable to infer that a belated withdrawal of opposition by the Respondent to the appeal w

ould have exposed it to an order for costs incurred by the Applicant in preparing for the appeal which costs would have been thrown away by the withdrawal of opposition by the Respondent.

I have come to the opinion that the mistake was so material to, and influential on, the relevant decisions made by the Respondent, that it is reasonable to conclude that, but for the mistake, the Respondent would in all probability not have refused development consent and accordingly no appeal proceedings would have arisen. In reaching this conclusion I of course come hard against the evidence of the Respondent's Director of Planning to the effect that notwithstanding the belated realisation of the erroneous assessment of shadow impact she regarded the shadow impact of the development proposal on the neighbouring property as a matter of concern. That evidence was rejected by the Assessor who accepted the shadow diagrams and evidence of Mr. Ball. (Of course it was not necessary for the Assessor to make a finding such as I am prepared to do in respect of the crucial question raised by the Notice of Motion).

I am of the opinion that when regard is had to the history of the Respondent's dealing with the Applicant's development application it is impossible to resist the conclusion notwithstanding the evidence of the Respondent's Director of Planning that had the Respondent correctly appreciated the shadow impact of the proposed development is would not have refused development consent.

That history includes the following events -

(i) On 22nd October, 1987 the Respondent's Planning and Environment Committee considered the report of the Respondent's Director of Planning on the Applicant's development application which report had recommended that development consent be granted. That report had summarised neighbour objections and concluded:-

"The proposal has been examined in detail, particularly in regard to the matters outlined in the objection and is considered acceptable, having regard to the adjacent development, the topography, and other matters outlined above. Although the proposal will result in some loss of view and some overshadowing, these matters are not considered to be of sufficient magnitude to warrant refusal of the application."

(ii) On 22nd October, 1987 the Respondent's Committee resolved to refer the matter to open Council.

(iii) On 28th October, 1987 the Respondent resolved that the Report of the Director of Planning be deferred and "that Council indicate that it will favour the application unless the objectors submit within 14 days evidence to show substantial loss of value to their properties.... and that objectors substantiate their assertion as to inaccuracies to the shadow diagram".

(iv) On 3rd December, 1987 the Respondent adopted the recommendation contained in a further report of its Director of Planning on the Applicant's development application. That report contained the following appraisal of development proposal:-

"As indicated in my Report of 30th September, 1987, I believe the major area of concern in relation to this development is its adverse impact on the property known as 2 Begonia Street. This adverse impact involves mainly loss of sunlight and overshadowing. These effects are shown throughout the year and, as will be noted by the amended shadow diagram for December, has significant effects on the use of the recreation area at the rear of that property. In addition, there is some adverse effect on the adjoining properties to the north-east through loss of view.

However, in considering this Application, Council should be aware that a similar development to this, which only involves the extension of a residential dwelling, could be approved on the site in accordance with Council's policy for two-storey development.

In considering all of the above matters, and points for and against this Application, I believe that, having regard to the amendment to the shadow diagram to take into account Daylight Saving, and the submission on behalf of the future owner of 2 Begonia Street, Council should refuse the Application." (underlinings my emphasis)

In reaching the foregoing conclusion I have not overlooked the fact that there were other grounds relied upon by the Respondent in opposing the development application and that these grounds were debated at the hearing. However I do not think it necessary to delve deeply into these matters because at the hearing it became clear that these grounds were plainly unsustainable. Thus concerning the alleged loss in value to neighbouring properties the Assessor found:

"During the hearing the objectors who gave evidence in effect withdrew their claim for a loss in value to their properties. In my opinion they were correct in so doing."

Concerning alleged loss of views the Assessor found:-

"As regards loss of views claimed by the objectors, again their initial objections were coloured by what they considered to be the height of the proposal."

Concerning aircraft noise the Assessor found:-

"It seems to me that the extent of aircraft noise has been taken into account in the provisions of the Sydney Regional Environmental Planning Policy No. 12 and that aircraft noise is not a reason for refusal of the proposed development ........."

The clear unsustainability of these other grounds makes it clear that it was the erroneous assessment of adverse shadow impact that was the real and substantial reason for the Respondent's decision to refuse development consent in this case. Indeed this is not a matter merely left to inference. It is clear from the history of the Respondent's dealings with the application that I have earlier summarised.

In these circumstances I am satisfied that the Applicant has established 'exceptional circumstances' in the present case so as to warrant the award of costs in accordance with the Court's practice.

I do not think that ordering the Respondent to pay costs in the present case will have the effect or be seen as having the effect of penalising a Respondent Council for a decision on the merits of the application which is not sustained on appeal to this Court. In the present case, for the reasons I have given, the Respondent's decision thereon was profoundly flawed by its erroneous understanding of the shadow impact of the proposal, being the perceived key merit issue raised by the application.

Accordingly the Notice of Motion is granted with costs.

I order the Respondent to pay the Applicant's costs of the appeal proceedings in the Court and the costs of the Notice of Motion.