Sale v Ku-ring-gai Council

[2005] NSWLEC 464

Land and Environment Court

of New South Wales

CITATION:

Sale v Ku-ring-gai Council [2005] NSWLEC 464

PARTIES:

APPLICANT
Phillip Sale
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10998 of 2004

CORAM:

Bly C

KEY ISSUES:

Appeal :- Costs Applications

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

28/10/2004 and 16/05/2005

 
DATE OF JUDGMENT: 

08/31/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Hannaford, solicitor
SOLICITORS
Hannaford Lawyers

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

31 August 2005

10998 of 2004 Phillip Sale v Ku-ring-gai Council

JUDGMENT

1 These two costs applications relate to Development Application No. 600/04 (“the development application”) and a subsequent application to amend the resultant development consent, which is for six dwellings in a medium density/seniors living development at 1 Tarook Avenue and 43 Canoon Road, Turramurra, comprising:

(a) Applicant’s costs associated with the appeal against the deemed refusal of the development application; and
(b) Respondent’s and applicant's costs associated with the application to amend conditions attached to the development consent.

2 By way of background it is of relevance to note that the site has been the subject of two unsuccessful appeals to the Court for similar, more intensive development proposals (10505 of 2001 - eight dwellings and 10618 of 2003 - seven dwellings).

3 The development application was lodged with council on 7 June 2004. On 10 June 2004 and 19 Aug 2004 the council wrote to the applicant seeking further information. I could discover no direct response by the applicant to these requests.

4 The appeal under s 97 the Environmental Planning and Assessment Act 1979 ("the EPA Act") against the deemed refusal of the development application was filed in the Court on 20 August 2004 and served on the respondent on 23 August 2004. A statement of issues dated 22 September 2004 was subsequently filed and served on the applicant. This statement of issues includes matters similar to those raised by the council in its earlier correspondence to the applicant.

5 On 29 September 2004 the applicant wrote to the council responding to the statement of issues especially in relation to those matters involving a request for further information.

6 On 15 October 2004 the s 97 appeal was set down for hearing on 28 October 2004 when consent orders were tendered. The Court subsequently made these orders by determining the development application and granting conditional development consent ("the consent").

7 The application under s 96 of the EPA Act to amend the consent was filed in the Court on 11 March 2005. On 14 April 2005 the matter was set down for hearing on 16 May 2005. On 16 May 2005 the appeal was upheld in part and seven of the conditions forming part of the consent were amended.

The s 97 appeal

8 The substance of the applicant's submissions supporting its application for costs in relation to the s 97 appeal relate to council’s statement of issues dated 22 September 2004. This statement of issues involves eight separate issues, including particulars, extending over almost four typewritten pages. According to the applicant these issues, apart from issue 8 that deals with resident objections are, in essence, requests for additional information. Moreover they involve issues that had been dealt with in the two previous appeals for this site.

9 The applicant's first complaint involves the late service of these issues, contrary to par 6 of the Court's Practice Direction that requires that the statement of issues is to be filed and served within 21 days of service of the application. The statement of issues was filed on 23 September 2004, having been served the day previously on 22 September 2004, 33 days after the appeal was filed and served on 20 August 2004.

10 The applicant also complains that a number of the issues in the statement were incorrect both in fact and alleged content. Moreover much if not all of the requested further information was already available to the council.

11 At the callover on the morning of 1 October 2004 the applicant requested that the matter be referred to the Chief Judge so that an application could be made to have the issues struck out. Against the council's objection the matter was so referred. Later that afternoon McClellan CJ heard from the parties in relation to issues 1 to 7. The parties were then directed to meet on 5 October 2004 in relation to these issues and to reappear for further directions on 6 October 2004.

12 The meeting took place as directed and as a result issues 1 (water and sewerage), 2 (site analysis), 3 (amenity), 5 (car parking) and 6 (landscaping) were not pressed. Issues 4 (stormwater) and 7 (bushfire) were resolved, agreement having been reached as to appropriate conditions. Issue 8 (resident's objections) remained in dispute notwithstanding that most, if not all, of the matters raised in the residents’ submissions had been considered by the Court as part of the previous application.

13 This outcome was communicated to the Chief Judge on 6 October 2004 and the parties were directed to approach the Registrar for a hearing date. This occurred on 12 October 2004.

14 Notwithstanding council's offer to consider the matter at the first available meeting on 9 November 2004 and the applicant's submission that a hearing date in mid-November would be acceptable, the Registrar listed the matter for 28 October 2004. In so doing the registrar took into account the possibility that the matter might be considered by the council at its meeting on 19 October 2004.

15 In essence council's response is that the requests for further information particularly those in the statement of issues were legitimate and that it was not the responsibility of the council to collect material from the previous application for the purposes of the subject application. Once these matters had been attended to, the remaining issue involving the residents’ objections could, as actually occurred, be appropriately determined by the Court in accordance with the Practice Direction on consent orders. The suggestion that the statement of issues involved the re-agitation of issues previously resolved was rejected.

16 More generally the council submits that despite this being the third application for this site and bearing in mind that the two previous applications had been refused, this application remained one that council was entitled to deal with in the usual way. Despite the somewhat unusual interlocutory aspects of the matter the Court issued its consent less than two months after the appeal was lodged.

17 In the circumstances the council says that the fair and reasonable threshold for the awarding of costs has not been met.

18 Having considered the submissions in this regard, I am of the view that costs are not warranted in relation to the bringing of the Class 1 proceedings or for the hearing. Irrespective of the history of the development proposals for the site and despite the progressive improvements of the latter two proposals there can be no presumption that the more recent proposal automatically warrants approval. This must be so, despite the fact that the amended proposal is said to be responsive to particular matters of concern identified by the Court in relation to the immediately previous proposal. Other issues may arise as a result of the changes. Also, the consent orders were issued less than two months after the appeal was lodged - a relatively short period.

19 It is relevant to note that the applicant had the statement of issues a little more than a week before the callover on 1 October 2004 and was able to comment on the issues on 29 September 2004. It was than only a matter of days before the meeting took place on 5 October 2004 that resulted in issues either not being pressed or resolved by an agreement to impose conditions of consent. It is apparent that at the meeting to resolve the issues little additional information was provided to the council, it having been directed to materials provided in relation to the previous application.

20 Taking into account that State Environmental Planning Policy - Seniors Living was introduced in place of State Environmental Planning Policy No. 5 after the previous application and before the subject application was lodged I do not accept that the council was being unreasonable by not assuming that material provided for the previous application continued to be relevant. Unless directed by the applicant it is not for the council to make assumptions about material involving a different although related application even though that information relates to the subject application.

21 Given that the applicant did not respond to the council's request for further information in June and August it is perhaps not surprising that the council sought further information by means of the statement of issues. Such an approach is not unusual in proceedings of this kind. As necessary information is provided such issues are usually not pressed although further issues may arise when this information is provided.

22 As for the consent orders hearing, including the Court's visiting of the site and hearing of resident objector evidence, there was nothing unusual about this and certainly nothing arose to warrant the awarding of costs.

23 I understand how the applicant believes that the statement of issues could be seen to be an attempt to re-litigate matters that were determined in relation to the previous application. If this were so it may have been appropriate to award costs. However for the reasons I have given I have not been persuaded that this is the case here.

The s 96 application

24 In relation to the hearing of the s 96 application to amend certain conditions the council seeks an order for costs because the issues dealt with during that hearing should never have arisen in that context but should have been raised at the s 97 hearing on 15 October 2004. Alternatively the applicant should have approached the council directly under s 96AA of the EPA Act to have the consent amended thus avoiding the expenses associated with the involvement of the Court.

25 In response the applicant acknowledged that the hearing on 28 October 2004 was earlier than might otherwise have been the case as a result of its pressing for an early date. However this does not, in principle, excuse the council from its fundamental responsibility to provide the conditions in sufficient time to afford the applicant a reasonable opportunity to consider them.

26 As I understand it the 171 draft without prejudice conditions of consent were given to the applicant on 27th October 2004, the day before the hearing. A further set of conditions was provided to the applicant during the lunch adjournment on 28 October 2004. Whilst some of the conditions may have been changed, the conditions the subject of the s 96 application were unchanged.

27 In circumstances where the appeal process follows the more usual timeframe one could expect that the 14-day rule for the serving of without prejudice conditions on the applicant, would have been followed. However in this case, the hearing, having been set down on 15 October 2004, allowed only 13 days prior to the hearing for this to take place. Whilst one could reasonably expect the conditions to have been provided earlier than the day before the hearing, what actually happened is not, in circumstances, entirely unreasonable.

28 Similarly, having essentially only one day to deal with 171 conditions it is not surprising that the applicant did not discover until a later time, some unsatisfactory aspect of these conditions.

29 As for the argument that the applicant should have utilised the process made available by s 96AA to amend the consent, the applicant says in response that the council could not be relied upon to determine the matter within a reasonable time. This is based on council's delays in dealing with the three applications for this site as evidenced by its failure to determine the three different development applications for this site. Also, having a matter determined by the Court would avoid the possibility of having to appeal against either council delay or a rejection of the s 96 application.

30 The council was advised of the applicant's intention to utilise s 96 of the EPA Act by letter dated 15 February 2005, asking whether council would consent to the modifications to be sought. Matters associated with costs were also raised. Council responded to this letter on 3 March 2005 enquiring why the request was made without first filing the application. The applicant's attention was also drawn to s 96AA, which empowers the council to modify a development consent granted by the Court. Also, without an application the council does not have anything to consider. The costs matters were rejected. The s 96 application was filed in Court shortly thereafter.

31 Sections 96 and 96AA give the holder of a development consent issued by the Court different options for the amendment of that consent. That the applicant chose the option that it felt best suited it in the circumstances is not a basis for criticism notwithstanding that the option chosen could be more expensive.

32 Whilst the council could have responded to the conditions of concern described in the applicant's letter dated 15 February 2005 in a more constructive fashion than it did, it was under no obligation to do so.

33 Having considered the submissions in relation to the s 96 application, I am of the view that it would not be fair or reasonable to award costs.

Conclusions

34 In this case I have concluded that the underlying principle that there will generally be no order as to costs in class 1 proceedings should not be disturbed. In the circumstances I have decided that it would not be fair or reasonable to award costs in relation to the s 96 and the s 97 appeals. Although the parties have failed in their applications, I have nevertheless decided that no costs associated with the applications themselves should be awarded.

35 The order of the Court is:

1. The applications for costs in relation to the appeals under s 97 and s 96 of the Environmental Planning and Assessment Act 1979 are dismissed.

_______________________
T A Bly
Commissioner of the Court
Rjs/ljr