Toon v Ku-ring-gai Council (No 2) - [2004] NSWLEC 593

Land and Environment Court

of New South Wales

CITATION: Toon v Ku-ring-gai Council (No 2) [2004] NSWLEC 593

PARTIES:
APPLICANT
John Toon
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 11563 of 2003

CORAM: Cowdroy J

KEY ISSUES: Appeal :- SEPP 5 Development - costs

LEGISLATION CITED: Land and Environment Court Act 1979, s 69(2)
Land and Environment Court Rules 1996, Pt 16 r 4

CASES CITED: Canterbury City Council v Roads and Traffic Authority of New South Wales [2004] NSWLEC 536;
Toon v Ku-ring-gai Council [2004] NSWLEC 173

DATES OF HEARING: 05/10/2004

DATE OF JUDGMENT: 10/05/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Tomasetti (Barrister)
SOLICITORS
Norman Waterhouse
RESPONDENT
Mr P. Rigg (Solicitor)
SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

5 October 2004
11563 of 2003

JOHN TOON V KU-RING-GAI COUNCIL

Judgment – No 2 costs

1 Judgment was delivered in these proceedings on 30 April 2004 (see Toon v Ku-ring-gai Council [2004] NSWLEC 173) in which the Court upheld the applicant’s appeal against the respondent’s (“the council’s”) refusal of development application 165/03. Such application sought demolition of an existing building (“the house”) at 50 Pentecost Avenue, Pymble (“the site”) and erection of a development for older people or people with a disability.

2 The applicant seeks an order that the council pay its costs on an indemnity basis of the issue which was central to the council’s defence, namely whether the house and garden had heritage value.

3 Section 69(2) of the Land and Environment Court Act 1979 (“the Court Act”) 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, and

(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the

Legal Profession Act

or on an indemnity basis.

4 Part 16 rule 4 of the Land and Environment Court Rules 1996 (“the rules”) applicable to class 1 proceedings relevantly provides:-

(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 a costs order is, in the circumstances of the particular case, fair and reasonable.

5 In respect of class 1 proceedings, the power of the Court to make an order for costs provided by s 69(2) of the Court Act is constrained only by the need to observe Pt 16 r 4 of the rules and to exercise judicially the discretion so provided.

Facts

6 The applicant’s development application was made to the council in February 2003, but by December 2003 it remained undetermined. In December 2003 the council’s Heritage Conservation Planner Mr Paul Dignam prepared a report dated December 2003 which recommended that the site be included in a draft Local Environmental Plan (“LEP”) as a draft heritage item and that further…

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: [2004] NSWLEC 593
Decision Date: 10/05/2004

CaseChat Overview and Summary

John Toon, the applicant, sought to appeal the Ku-ring-gai Council's ("the council") refusal to grant approval for his development application. This application aimed to demolish an existing building at 50 Pentecost Avenue, Pymble, and construct a development intended for older people or those with disabilities. The council had argued that the site, comprising the house and garden, possessed heritage value, which was a key point of contention in the proceedings. The initial judgment upheld the applicant's appeal, dismissing the council's defence based on heritage value. Following this, Toon sought an order for the council to pay his costs on an indemnity basis, specifically for the issue of the site's heritage value.

The central legal issue before the court was whether the council's insistence on the heritage value of the site, despite contrary findings in an earlier report, warranted indemnity costs for the applicant. The court needed to consider the statutory framework under which costs could be awarded and the circumstances in which such costs might be assessed on an indemnity basis. Additionally, the court had to evaluate the council's conduct in seeking a second opinion after the initial report had concluded that the site did not meet the heritage threshold.

In its reasoning, the court noted that while the council had sought an additional report after the initial one found no heritage value, there was no evidence to support the council's claim that the initial report was inadequate. The court found that the council's persistence in arguing for heritage value, despite the contrary evidence, was unreasonable. This unreasonable conduct led to the applicant incurring significant professional fees to counter the council's stance. However, the court determined that the council's actions did not warrant costs on an indemnity basis, as they did not reach the level of unreasonableness necessary for such an award. Instead, the court deemed it fair and reasonable that the council pay the applicant's costs related to the heritage issue.

The court made orders that the council pay the applicant's costs incurred in the proceedings concerning the heritage issue and the costs of the motion. This decision underscores the importance of reasonable conduct in legal proceedings, particularly in administrative law contexts such as development applications, and highlights the court's discretion in awarding costs.

Orders