Optima Developments Pty Limited v Gosford City Council - [2003] NSWLEC 338

Land and Environment Court

of New South Wales

CITATION: Optima Developments Pty Limited v Gosford City Council [2003] NSWLEC 338

PARTIES: Optima Developments Pty Ltd (Appl)
Gosford City Council (Resp)

FILE NUMBER(S): 10180 of 2003

CORAM: McClellan CJ

KEY ISSUES: Practice and Procedure :- Costs
Application for costs in Class 1 matter
Hearing required resolution of merit matters
No contest between experts
Whether applicant incurred costs due to 'obligation which should never have arisen'
No order for costs

LEGISLATION CITED:

CASES CITED: Raiti v Leichhardt Municipal Council (1990-1991) 72 LGRA 333;
Gee v Port Stephens Council [2003] NSWLEC 260

DATES OF HEARING: 31 October 2003

EX TEMPORE
JUDGMENT DATE :
10/31/2003

LEGAL REPRESENTATIVES:

D Baird (Appl)
Maddocks (Sol - Appl)
S Berveling (Resp)
P J Donnellan & Co (Sol - Resp)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10180/03

McCLELLAN J

FRIDAY 31 OCTOBER 2003

OPTIMA DEVELOPMENTS

Applicant

GOSFORD CITY COUNCIL

Respondent

Judgment

1 HIS HONOUR: This is an application for costs in a Class 1 hearing. The development application the subject of the proceedings sought consent to erect a service station and convenience store on land at Empire Bay Drive, Empire Bay. The application was determined by Commissioner Hoffman who made his decision on 3 September 2003. On that day he apparently delivered his reasons orally. They have now been published in writing.

2 The application was the subject of some controversy within the neighbourhood of Empire Bay. That controversy is reflected in the fact that when the matter was heard by Commissioner Hoffman a number of local residents were called to give evidence. The Commissioner’s reasons detailed the evidence which they gave.

3 That evidence raised issues relating to the status of the land with respect to threatened species populations or ecological communities and its quality as a wildlife corridor. It also raised issues in relation to the size and intensity of the proposal, traffic matters, pedestrian safety, impact upon scenic quality and impacts upon oyster farming and fishing in the locality.

4 More than one objector expressed concern in relation to the potential for fuel spillage from the site resulting in the potential for pollution problems, bushfire and other identified prospective difficulties. The appeal was brought in circumstances where the Council had failed to make a decision in relation to the application. However the application was debated in the Council chamber and the Council sought advice from its solicitors as to its prospects in an appeal.

5 In a letter dated 8 July 2003 the Council was advised by its solicitors that there had been a conference between the experts which had resulted in agreed questions and agreed responses. The letter went on to say:

“You will note that there are few matters which are at issue and those matters which are at issue may be dealt with by way of condition. That being the case, it is our recommendation that this matter be resolved by way of consent to…

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: [2003] NSWLEC 338
Decision Date: 10/31/2003

CaseChat Overview and Summary

In the case of Optima Developments Pty Ltd v Gosford City Council, the applicant sought costs in relation to a Class 1 hearing concerning a development application for a service station and convenience store at Empire Bay Drive. The application had sparked controversy among local residents, who testified on matters relating to the site's ecological status, its suitability as a wildlife corridor, the proposal's size and intensity, traffic, pedestrian safety, scenic quality, and impacts on oyster farming and fishing. The hearing before Commissioner Hoffman lasted four days, including a site visit, and involved the cross-examination and calling of evidence in reply by the applicant, despite reaching an agreement with the Council's experts.

The key legal issue was whether the applicant was entitled to an order for costs given that the hearing required the resolution of merit matters, despite no contest between the experts. The Court considered the history of its approach to costs in Class 1 matters and the Practice Directions, ultimately concluding that ordinary principles should apply. The Court had previously ruled that no order for costs should be made in Class 1 appeals where the appeal required the resolution of merit matters. However, it may consider making such an order if questions of law concerning the decision-maker's discretion or preliminary questions regarding the capacity to grant consent were raised, or if the Council acted unreasonably.

The Court found that the applicant had not incurred an obligation which should never have arisen, and despite the applicant's success in relation to the issues raised by the local residents, the hearing had required the resolution of merit matters. Therefore, the application for costs was dismissed, and no order was made as to costs.

Orders