Wechsler v City of Sydney Council (No 3)

[2015] NSWLEC 124

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wechsler v City of Sydney Council (No 3) [2015] NSWLEC 124
Hearing dates:	2 and 3 June; 8 and 22 July and 4 August 2015
Decision date:	07 August 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	See [83] for directions to permit final orders to be made
Catchwords:	MODIFICATION APPLICATION - scope of the earlier modification determination - visual impact in streetscape - impact on the outlook from neighbouring properties COSTS - matter remitted after successful appeal - costs sought to be recovered for expert witness - costs claimed included costs incurred prior to remitter - no basis for claim for prior costs - applicant only partially successful on the merits on remitter - no fair and reasonable basis upon which to make costs order - costs application dismissed
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Land and Environment Court Rules 2007
Cases Cited:	Grant v Kiama Municipal Council [2006] NSWLEC 70 Latoudis v Casey [1990] HCA 59; 170 CLR 534 Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208 North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; 43 NSWLR 468 Wechsler v Sydney City Council [2013] NSWLEC 1116 Wechsler v City of Sydney Council [2014] NSWLEC 201 Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35
Category:	Principal judgment
Parties:	Dr R Wechsler (Applicant) City of Sydney Council (Respondent)
Representation:	Counsel: Applicant in person Mr A Pickles, barrister (Respondent)   Solicitors: N/A (Applicant) City of Sydney Council (Respondent)
File Number(s):	10024 of 2013
Publication restriction:	No

Judgment

INTRODUCTION

1. HIS HONOUR: Dr Wechsler is undertaking a construction project at Potts Point. It is a six-level residential apartment development. The project is located within the boundaries of the City of Sydney Council (the Council). In late 2012, Dr Wechsler applied to the Council to modify the development consent for his project. This modification application was but one of a series of modification applications that had been made to the Council for this project. The modification application history had led to a number of incremental changes to Dr Wechsler’s project since its original approval.

2. In these proceedings, the Council does not suggest that, if the modifications here sought are permitted, the resultant project will not satisfy the relevant test in s 96 of the Environmental Planning and Assessment Act 1979 (the Planning Act) that the project as modified will be substantially the same as the project that was originally approved.

3. The modification application that is the subject of these proceedings has had a prior litigation history in the Court. Initially, the matter was dealt with by Morris C who determined that the modifications sought should be refused (see Wechsler v Sydney City Council [2013] NSWLEC 1116). This decision was the subject of an application for an extension of time within which to appeal (granted by Craig J – see Wechsler v City of Sydney Council [2014] NSWLEC 201) followed by the appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) - this appeal being on a question of law. On 9 March 2015, Craig J upheld the appeal (see Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35) and the matter was remitted for a further hearing.

4. The consequence of the remitter is that the matter proceeded to a fresh hearing on the merits of the modification application. Pursuant to s 36 of the Court Act, the Chief Judge assigned the matter to me to hear and determine in my then capacity as the Senior Commissioner of the Court. My subsequent swearing-in as an Acting Judge of the Court only impacts on my ability to hear and determine these proceedings in a minor fashion. The change is that, as Senior Commissioner, I would not be able to deal with costs applications but, acting as a Judge of the Court, I am vested with that jurisdiction (this is dealt with further concerning Dr Wechsler’s costs application determined in these proceedings).

THE MODIFICATIONS SOUGHT BY THE APPLICATION

5. This modification application sought, in overall substance, the deletion of planter boxes proposed on balconies on the fifth level of the development and a lowering of the adjacent balustrade height to 1.0m from the 1.4m required by the Council - with these two features (proposed, by the Council to act in combination for privacy protection and safety purposes) being replaced by the affixing of obscuring strips to the ~ 1.0m glass balustrade that had been installed by Dr Wechsler. Such obscuring provided, in Dr Wechsler’s submission, the appropriate privacy protection to neighbouring properties.

6. The second significant element for which Dr Wechsler sought approval by this modification application was to replace the approved pergola structures at the uppermost level with an alternative design that would have glazed covering supported by a metal frame. Similar approvals were sought for glazing to protective awning structures that had been erected at the fifth level although these structures had not been approved in the form erected.

7. It is appropriate to note that the modification process provided for in the Planning Act is to be regarded as beneficial and facultative (see North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; 43 NSWLR 468) and that the power to modify can be used to provide, subject to satisfaction of the “substantially the same development” test, retrospective approval for development that has been undertaken that is not in accordance with the development as approved.

THE SITE INSPECTION

8. The hearing commenced with an inspection of the site during which I was accompanied by Mr Pickles, barrister for the Council, and Dr Wechsler together with Mr Nash, the Council's town planning expert, and Mr Colman, Dr Wechsler’s town planning expert. Several officers of the Council also attended the site inspection.

9. In addition to inspecting the fifth and sixth levels of Dr Wechsler’s development, I also viewed the eastern end of the development at its primary street frontage and, walking along the street toward the south, its presentation in that streetscape - undertaking a similar viewing when approaching Dr Wechsler’s development walking to the north along the laneway to its rear.

10. I also visited the dwelling of an objector who lived in one of the residences to the immediate south of Dr Wechsler’s development, hearing his evidence, informally, in his rear private open space from which we were able to observe Dr Wechsler’s development and look up to the fifth and sixth level balconies of the development at its western end.

11. During the course of the site inspection, one of the Council officers measured, at representative locations, the balcony balustrades on the fifth and sixth levels. He discovered in the process that (assuming that the modification to lower the approved height of the balustrades from 1.4m to 1.0m was approved) none of these balustrades complied with the one-metre height standard mandated by the National Construction Code (formerly known as the Building Code of Australia).

12. A necessary consequence of this discovery was that, given the broader outcome of the modification application proceedings, Dr Wechsler is to be required to rectify these balustrades so that they were rendered compliant at 1.0m height.

OTHER OBJECTIONS

13. In addition to the evidence heard informally from one objector, there were other written objections that were tendered in the Council’s evidentiary bundle and which have been read and considered by me in reaching my conclusions on the modification application.

THE FOLLOWING COURT HEARING

14. Later in that first hearing day, after the matter had returned to Court, it appeared to me that there was a significant degree of uncertainty as to the nature of the matters then presently under discussion - particularly with respect to what precisely was the state of the approved development to which Dr Wechsler was seeking modifications. This arose in the context of the balcony pergolas and awnings as it appeared that Mr Pickles and Dr Wechsler had significantly different views on the precise nature of the approved structures for which modification was sought.

15. It was, at that time, unclear to me from the state of the documentation then in evidence as to which of the views being advanced was correct (indeed, whether either of them was, in fact correct).

16. At my suggestion, Mr Pickles undertook to have an analysis of the various stages of prior modification approvals undertaken to clarify the position prior to the commencement of proceedings on the second day.

17. When the hearing resumed on the second morning, it had become clear that that which was now being sought (of glass-roofed metal-supported awnings and pergolas) was a radically better visual outcome for both surrounding residents and those who would occupy Dr Wechsler’s development than the structure that was, in fact, approved to be erected – this being a bulky, dominating, larger wooden-slatted structure protruding, at least at one of the levels in contention, beyond the outer edge of the built form. That which was approved would, from its presentation in the plans, have looked a little like adding stubby wings to that level of the structure.

18. At this point, subject to resolution of one issue concerning the depth of the proposed pergolas; refinement of the balustrade glazing treatment and provision of adequately detailed plans of the proposed structures, the Council conceded that, in broad terms, the proposed modifications were, in fact, a distinct improvement on that which had previously been approved by it.

19. In addition, with respect to the privacy screening for neighbouring properties, Dr Wechsler agreed to increase the extent to which the obscuring strips would be affixed to the balustrade glazing - with the result that, subject to settlement of the detail, an agreed outcome was reached expected to lead, after the preparation of revised plans, to consent orders in resolution of these issues.

20. Points of agreement were settled between the parties and the proceedings adjourned to enable the revised plans to be prepared. When the matter resumed several weeks later, it transpired that there was an issue raised by the Council concerning the extent of the additional obscuring strips being applied to the glass balustrades.

21. For Dr Wechsler’s part, there was a disagreement about the east-west dimension of the glazed pergolas at the uppermost level of his development. Dr Wechsler had also foreshadowed a claim against the Council for costs in these proceedings.

22. To enable me to deal with these matters, a further short hearing needed to be held with each party having the opportunity to provide short written submissions on both the pergola and costs issues.

23. With respect to the obscuring strip application issue, I made a suggestion to the parties that the coverage of the strips be increased with that suggestion being adopted by them both – rendering it unnecessary to be determined.

24. As, by this time, I was now invested with the power to deal with costs applications, I granted leave to Dr Wechsler to amend his modification application so that he could seek costs in these proceedings without the necessity to incur the additional expense of a filing fee for a Notice of Motion. Permitting this course to be adopted also meant that the costs issue could be dealt with at the subsequent short hearing without the need for a separate hearing on costs with the attendant costs risks associated with such a separate hearing for an unsuccessful party.

25. At the short hearing on 22 July, a number of further exhibits were tendered and Mr Pickles and Dr Wechsler both made submissions concerning the outstanding pergola dimension issue and on Dr Wechsler’s costs application.

26. As a consequence of the agreement on the obscuring strips for the glazed balustrade privacy treatment, the modification sought to delete the planter boxes and lower the balustrade height from the required 1.4m to 1.0m was agreed to be approved by me.

27. I am satisfied, on the basis of what was seen during the course of the site inspection (both looking down from the upper levels and looking back from the objector’s rear yard) that this is an acceptable outcome, particularly given that Dr Wechsler had agreed that the proposed glazing to the side awnings on Level 5 should be required to be sufficiently obscure so as to add to the privacy protection to neighbouring properties.

THE PERGOLA DIMENSIONS AT THE UPPERMOST LEVEL

28. The dispute about the depth of the pergola to be erected at the ends of the uppermost level arises as a consequence of an earlier approved modification that had the effect of creating an additional bedroom at the uppermost level in these apartments and, as part of that process, extending the depth of that room to take up some of the earlier approved balcony.

29. The consequence of moving these walls was to reduce the width of the balcony at that level. It was Dr Wechsler’s position that the outcome of that approval was to move the pergolas further out without decreasing the extent to which they went beyond the wall and, in this process, reducing the distance between the outermost edge of the pergola structure and the balustrading of its balcony – that is that the adjustment in this space would be taken out of the uncovered area of this balcony rather than the covered area.

30. Dr Wechsler submitted that that was the correct interpretation of the result of the earlier modification and that the only element requiring approval in these proceedings was to change the design of the structures rather than their east-west dimensions.

31. On the other hand, the position advanced for the Council was that the relevant modification approval permitting the expansion of the internal area had been accompanied by the requirement to reduce the covered area of these balconies by retaining the approved setback between the balustrade and the outermost edge of the pergola.

32. It seems to me that, in the context of the case as it finally unfolded in this regard, there are two matters requiring my determination. These are:

• Whether Dr Wechsler’s understanding of the outcome of the modification permitting the moving of the walls is correct or not; and

• If it is not, whether, on a merit assessment basis, I should approve his implied application that the modification application should encompass extending the pergolas in their now to be approved glazed/metal design to the points that he had contended was where they were proposed to be located.

WHAT THE COUNCIL ACTUALLY APPROVED

33. It is clear that the modification F plans that show the nature of the structure proposed to be replaced by the present modification application have, for the pergolas at each end of the uppermost level, a clear annotation that the widths shown on those plans (of 3.6m) are not approved by the Council.

34. Reference is made on the plan to the accompanying letter setting out the Council's determination. The letter makes it clear [at (3) – Exhibit 1, tab A page 22] that the “length” of the pergola is not permitted to be as depicted on the plans.

35. In this context, as I pointed out during the course of the hearing, the use of the word “length” is, in the circumstances misleading. Mr Pickles drew my attention to the fact that this is how Dr Wechsler, himself, had described the relevant aspect in the statement of environmental effects that had accompanied the modification application (Exhibit 1, tab A, page 8). It is clear from the context in which it appears that Dr Wechsler’s use of the word “length”, in fact, means depth or width, that being the dimension currently in dispute between the parties.

36. It is therefore clear to me, on a proper construction of the modification F approval and related documents, that the Council was seeking to limit the width of the pergola structures (to 2.4m) in the fashion for which it contends in these proceedings.

37. However, as a consequence of that conclusion, it is necessary that I proceed to undertake a merit assessment of that which Dr Wechsler seeks. I do this as, if I were to be satisfied that the greater width of pergola were appropriate in a planning context, I should approve the depth of the pergolas sought by Dr Wechsler in these proceedings notwithstanding the position adopted by the Council on the modification F application plans.

THE MERITS OF THE PERGOLA EXTENSIONS

38. I now turn to consider whether or not the additional width of the pergolas for which approval is sought by Dr Wechsler should be allowed.

39. The first point to be made in this context, as previously acknowledged, is that that which is sought by Dr Wechsler for the pergolas and awnings is, in design terms, a significantly better outcome in a visual presentation sense than that which had been approved and was now proposed to be modified. Having said that, it is also appropriate to note that this improvement is not, in itself, a sufficient or appropriate reason to approve the dimensions of the structure now being considered.

40. These structures, in themselves, must be considered on their merits given that there is agreement on the broad ameliorating design concept, with the disagreement being as to the extent that that revised design should be permitted to be visible and contribute to the bulk of the overall structure at its eastern and western ends.

41. I earlier noted that, during the course of the site inspection, we walked to the south along Tusculum Street looking back towards the eastern presentation of the present structure on the site to which pergolas would be added at its uppermost level. The present structure, without any pergola, presents strongly in its streetscape. To the extent that pergolas will be able to be viewed when walking toward the building either walking west along Manning Street from the main local centre of activity along Macleay Street or when walking along Tusculum Street to the north approaching Dr Wechsler’s development from the south, they will be visible and will, at the uppermost level, add to the perceptions of bulk by drawing the leading edge of the uppermost level further toward the street.

42. In this regard, there was a difference of opinion between Mr Nash and Mr Colman expressed during the course of the site inspection as to the extent to which a pergola would be visible from the south and, to the extent it would be visible if constructed as Dr Wechsler seeks, whether the contribution to the bulk would be unacceptable.

43. On balance, on this point, I prefer the opinion of Mr Nash. Although the contribution to the bulk at the uppermost level that would be made if pergolas extended as far as Dr Wechsler proposes will be modest, that contribution must be viewed in the context of the building’s already strong presentation in the streetscape and the additional height that it achieves compared to the neighbouring buildings to the south. Further, I am also satisfied that, when viewed approaching from Macleay Street, that additional length will also make a contribution to the perceived bulk of the building at its uppermost level.

44. Overall, I am satisfied that, although the general design outcome is clearly desirable, it would be inappropriate to permit the additional width proposed by Dr Wechsler as the comparative position between the extent considered acceptable by the Council and that which is sought by Dr Wechsler crosses the line (a fine line, given the extent of the disagreement, I acknowledge) but nonetheless crosses the line and is unacceptable.

45. It is not sufficient to say that that which is to be replaced would create a completely unacceptable streetscape presentation if constructed (indeed, it is difficult to understand how the Council approved that which is to be replaced in the first instance), the assessment required to be undertaken for this proposed modification is to resolve the conflict between the Council and Dr Wechsler about the depth of a metal-framed glass-roofed pergola rather than looking backwards to the very intrusive structure that both agree is desirable not to be constructed.

38. With respect to the position when viewing the elevation of the building at its western end, a similar conclusion could be drawn about the inappropriateness of permitting the depth of pergola sought by Dr Wechsler in these proceedings. The reasons for reaching this conclusion concerning the western end of the building arise in a broadly similar fashion to those at the eastern end but the reasons underpinning the conclusion are different.

39. First, the modest slope of the land from east to west down across Dr Wechsler’s site means that, when walking to the north towards the building along the rear laneway, the building is even more prominent in this, albeit more minor, streetscape. An extended pergola of the nature sought would be even more prominent when able to be viewed along this approach. Second, during the course of the site inspection as earlier noted, we looked up to the building from one of the rear private open spaces of a residence to the south. The building as presently erected dominates the northern skyline and a pergola of the depth proposed by Dr Wechsler (even though a significant improvement on that which is already approved) nonetheless would be visually prominent and, to the extent that having it with a depth as proposed by the Council rather than as sought by Dr Wechsler will afford a modest softening of what will otherwise be a very prominent feature in the outlook from this location.

40. The consequence, the depth of pergola sought by Dr Wechsler at the western end is also inappropriate.

41. In summary, I therefore conclude that the pergola dimension specified by the Council as the appropriate outcome at the uppermost level at the eastern and western ends of Dr Wechsler’s development is the appropriate outcome and the width of the pergola is so to be limited.

ADEQUACY OF THE AMENDED PLANS

Introduction

50. In response to criticisms that were raised by the Council concerning the adequacy of the plans of the proposed modifications and the necessity to provide appropriate detail of the method proposed to be employed to render the balustrade height’s compliance, Dr Wechsler was granted leave to file and serve further revised plans to accompany such submissions as he wished to make concerning the width of the pergolas discussed above.

51. His submissions and plans were filed on 14 July and became Exhibit H at the subsequent short hearing. In response to these plans, the Council provided a list of what it considered to be the inadequacies in those documents. This list was tendered and became an exhibit (Exhibit 12). This list was prepared, Mr Pickles informed me, by Mr Nash.

Procedural fairness

52. Although Dr Wechsler did not indicate during the short hearing on 22 July that he wished to be heard further concerning the criticisms made of the plans, he subsequently communicated to me, in writing, that he considered that he had not had an adequate opportunity to do so. He included a short written submission on this topic in that communication. I came to the conclusion that it was appropriate, for abundant caution, to hold a further short hearing on this point. That further hearing took place on 4 August.

Mr Nash's criticisms

53. In summary, those matters that were considered by Mr Nash to be inadequate were:

1. The drawings have no identifying numbers (for example, there is no identifier for each plan in a form such as Plan 01 Revision A) and are therefore incapable of being referred to in modified conditions of consent;

2. Two of the five drawings do not have a scale indicated and where a scale has been indicated it is an obscure scale such as 1:125 when the general practice is 1:100 or 1:10;

3. The drawing with the title ‘Baluster Detail’ has no scale and is not dimensioned; Mr Nash observes that there is no representation of the wire and tightening device that had been agreed on with he being of the view that this should be detailed in a front elevation;

4. The drawing entitled ‘Fifth Floor Glass-Fixing Detail - General Arrangement’ has no scale and is not dimensioned. Mr Nash criticises the adequacy of the note to this drawing that says ‘snap-on aluminium extrusion to plant on extrusion’ as being unclear;

5. The drawing titled ‘Fifth Floor Pergola Glazing Plan’ has inadequate details in the notes to the drawing such as Note 1 - there is no reference to the details of the proposed glazing to be used other than its colour and horizontal panels to be screened to detail. The drawing should reference the detail in the drawing ‘Fifth Floor Glass-Fixing Detail’. Note 3 should reference the drawing ‘Baluster Detail’;

6. Mr Nash raises a number of criticisms with respect to the plan entitled ‘Sixth Floor Pergola Plan of Proposed Modifications’. This plan, unlike the other two A3 plans, has a scale of 1:100 and contains, in the copy that forms part of Exhibit H, details that Mr Nash says are absent from the copy he has examined. I am unable to draw the same conclusions as to adequacy of this plan. However, this plan will need to be revised to show the width of the eastern pergola at 2.4 metres rather than 3.6 metres. It would also be appropriate for this plan to be sufficiently comprehensive to show the balustrading at the eastern and western ends of this level and the dimension between the end of the pergola and that balustrading in each instance; and

7. Turning, finally, to the drawing entitled ‘Translucent Screening Application Pattern’, Mr Nash makes a number of criticisms concerning the two elements of this drawing (one of which was agreed to be irrelevant and does not need to be replicated on the final plans). His other criticisms of detail are discussed below in my response to this concern.

Dr Wechsler’s response

54. Dr Wechsler’s response to Mr Nash’s criticisms of the plans was in the following terms:

1.   Each drawing is uniquely referenced by its title and date.

Drawings

●   balusters detail

●   translucent screening application

●   fifth floor fixing detail - general arrangement details of construction

are general arrangement details and designed to demonstrate how various elements fit together and are not relevant to town planning considerations.

The general arrangement drawings are conceptual and designed to express various engineering concepts. Drawing to scale in many cases handicaps such expression.

2.   Scales such as 1.125 are not uncommon. Most scale rules include such a scale.

The scale 1:125 was chosen to ensure that the drawings would fit A3 format. There is no foundation to Mr. Nash's criticism.

3.   The applicant contends that the detail submitted in the drawing entitled Baluster Detail sufficiently identifies the detail to person with reasonable technical knowledge.

4.   The details specified are sufficient to determine the method of attachment of the glazing.

5.   The drawings are to be read as a set - there is no foundation to Mr. Nash’s criticism.

6.   “Modification B” refers to the new pergolas on north and south facing parapets as clearly identified in drawing TUS/6/2P of exhibit E admitted into evidence in the present proceedings. There is no foundation to Mr. Nash's criticism.

7.   The applicant cannot ascribe any meaning or relevant to this criticism.

Conclusion: Mr. Nash's criticism has no foundation and appears to be an exercise in unrealistic pedantry.

The further hearing on 4 August

55. At the further hearing on 4 August, Mr Pickles and Dr Wechsler made short submissions concerning the criticism of Dr Wechsler’s plans and on costs. Dr Wechsler’s response to Mr Nash's criticisms was tendered and became Exhibit L. Dr Wechsler also provided supplementary written submissions in support of his application for costs.

Conclusions and requirements arising from the plan criticisms

56. With respect to the first points, these plans were prepared for Dr Wechsler at a scale at 1:125 at A3 for the two of the three plans relating to the pergola and at 1:10 for one of the detail plans concerning the various aspects of the balustrade treatment for height and privacy purposes. Although the 1:125 scale is less conventional when compared to scales that would normally be expected to be seen in plans in development appeals in the Court, the Class 1 Development Appeals Practice Note merely requires, in Schedule A, that plans be to an “appropriate scale shown on the drawings”. Had there been no other reason to require Dr Wechsler to revise the 1:125 plans, I would not have required this to be done solely on the basis of the scales at which the documents had been prepared. On the other hand, I do note that it is desirable to have all three of the plans arising from the present proceedings at the same scale and the directions given will reflect that.

57. However, as it will be necessary to revise the plans to reflect my determination about the appropriate width of the pergolas at the ends of the uppermost level and my acceptance, as discussed below, of some (but not all) of the other criticisms levelled at the plans, it is desirable to have the A3 plans at one common scale and I therefore propose to incorporate in the directions at the conclusion of this decision a requirement that all the revised plans be at either 1:100 or 1:125 at A3 (for the pergola aspects) and at 1:10 for the revised detail drawings and that the relevant scale be noted on each plan.

58. Fresh plans will need to be prepared to rectify these matters given that, particularly, the plans for the sixth floor pergolas need to be replaced to reflect my determination about the pergola depth at that level. As a consequence, I set the following requirements for the necessary revised plans in light of my overall findings (including on Mr Nash’s criticisms):

1. Each of the revised A3 plans is to be given an appropriate referencing title and number to be able to be incorporated in modified conditions of consent. These plans can be at either 1:125 or 1:100 at Dr Wechsler’s election but are all to be at the same scale. The scale is to be noted on each plan;

2. The plan ‘Sixth Floor Pergola Plan of Proposed Modifications’ is to be revised to reflect my determination of the appropriate pergola widths;

3. The criticism of the drawing entitled ‘Baluster Detail’ as to scale is accepted. This drawing should be reproduced in a 1:10 scale. There is no need for a front elevation plan to be provided;

4. Apart from the general requirement to scale and reference title the drawing ‘Fifth Floor Glass-Fixing Detail - General Arrangement’, relevant dimensions should be marked on this plan but no other changes are required to it;

5. The ‘Fifth Floor Pergola Glazing Plan’, should be corrected as suggested by Mr Nash and, with respect to the glazing should specify the type and thickness of glass proposed to be used (for example, 10 mm laminated glass - if this is what is intended);

6. With respect to the criticism by Mr Nash of the Translucent Screening Pattern Application, the single plan that is now relevant should be rectified by providing an appropriate reference titling and reproduced without the now irrelevant plan. There is no need for technical details to be provided on the drawing concerning the material to be installed and what might be its replacement ‘when it fails’ as that is properly to be dealt with by a condition of consent rather than on the plans.

59. I expressed the view during the course of the short final hearing that it might be appropriate to require any revised plans to be dealt with on a basis that conditioned their preparation to the satisfaction of the Council rather than requiring them to be brought back to me for final approval.

60. On further contemplation of this point, given the litigation history between the parties and the desirability of certainty in finalisation of the proceedings, I have concluded that my directions should provide for the filing and serving of revised plans to reflect my determination of the various matters earlier dealt with. In reaching this conclusion I am also mindful that there will need to be finalised conditions prepared by the Council reflecting these outcomes.

61. As a consequence, my directions provide for orders to be made in chambers if the conditions prepared by the Council are acceptable to Dr Wechsler and the revised plans to be prepared by Dr Wechsler are acceptable to the Council.

62. The directions also provide for the Council to file and serve any orders that the Council considers are necessary to finalise either or both of the related proceedings not covered by this decision.

63. I propose to list the matter for a further mention in three weeks’ time so that, if there is any remaining disagreement, I can deal with it on that occasion. If the timetable is adhered to by the parties and there is no disagreement, the orders can be made in chambers and the mention vacated.

COSTS

64. I now turn to deal with the application for costs made by Dr Wechsler in these proceedings.

65. I am also aware that there has been a costs application made by Dr Wechsler relating to Dr Wechsler’s appeal proceedings. I understand that that application has been resolved. Nothing in this determination concerning Dr Wechsler’s costs application in these proceedings has any relationship with that other costs application.

66. As earlier noted, I granted Dr Wechsler leave to amend his application to include his requests that I order that the Council pay his costs in these proceedings. As Dr Wechsler is self-represented, the scope of claimable costs is limited and, in this instance, is confined to a claim for the cost of retaining Mr Colman to provide expert town planning advice and evidence.

67. As these are proceedings in Class 1 of the Court's jurisdictions, unlike the conventional position that costs in civil proceedings follow the event (see Latoudis v Casey [1990] HCA 59; 170 CLR 534 and s 98 of the Civil Procedure Act2005) costs do not ordinarily follow the event but are subject to the provisions of the Land and Environment Court Rules2007 that specify that in proceedings such as these costs are only to be awarded in circumstances where it is fair and reasonable to do so. The rule, itself, sets out a number of circumstances where it might be appropriate to consider that it was fair and reasonable so to award costs but the rule does not purport to be a complete code of such circumstances.

68. The matter was also dealt with by the Chief Judge in Grant v Kiama Municipal Council [2006] NSWLEC 70 where he analysed a broader range of circumstances when costs orders might be appropriate in such proceedings but this analysis, too, was not described by his Honour as being exhaustive.

Dr Wechsler’s claim

69. The amount claimed by Dr Wechsler is, in total, $7744 representing the aggregate of two invoices from Mr Colman to Dr Wechsler. These invoices were tendered (Exhibit K) and were dated December 2014 and June 2015.

70. Given the conclusion I have reached for the reasons that follow, it is not necessary to analyse either of these invoices as to time period covered (on the question of relevance to these proceedings compared to earlier ones) or to consider whether sufficient detail has been provided concerning services rendered. Such matters would have been appropriately considered elsewhere had an “as agreed or assessed” costs order been appropriate to be made.

Costs and the outcome of the proceedings

71. There is a fundamental and fatal barrier facing Dr Wechsler’s costs application in these proceedings. This barrier is, in itself, sufficient to warrant rejection of his costs application without the necessity to consider any matters of merit that might arise with respect to Mr Colman's invoices.

72. The barrier to Dr Wechsler’s costs application is the limited extent of the success that he has had in these proceedings. That is, at best, his success can only be described as partial, in my view – as is also the extent to which the Council’s position has prevailed.

73. It is true to acknowledge that Dr Wechsler has succeeded with respect to the covering of the pergola and awning structures by being permitted to replace the timber battens with glazing. It is also appropriate to note that he has succeeded in his application to have the planter boxes deleted and the related balustrades lowered to a required height of 1.0m. However, with respect to these balustrades, it is also appropriate to note that the extent of the obscuring strips that he had proposed were an acceptable privacy response was not accepted as being adequate and the extent of the obscuring strips was increased before the Council agreed that this was an acceptable alternative outcome.

74. The site inspection also revealed the inadequacy of the height of the balustrading as constructed and the requirement for corrective works and revised plans to demonstrate how the balustrades are to be made compliant with the National Construction Code requirements.

75. Finally, and most importantly, there remained one significant outstanding contested issue between the parties that I have been required to consider and determine in these proceedings. That issue related to the depth of the pergola structures that should be permitted at the eastern and western ends of the uppermost level of Dr Wechsler’s building.

76. For the reasons earlier outlined in my determination of this aspect of the proceedings, the Council has succeeded completely on that point.

Conclusion on Dr Wechsler’s costs application

77. It could not be said to be fair and reasonable, balancing success and failure, for Dr Wechsler to succeed in his costs application.

78. Indeed, even if these had been proceedings where costs did follow the event, at that lower threshold test I would not have been minded to make a costs order in Dr Wechsler’s favour. Had such a presumption applied, the degree of success or failure of each party in these proceedings would, on my assessment, inevitably have led to an order that each party bear its own costs.

79. In a fair and reasonable balance, there is no doubt in my mind that any costs order is inappropriate when having regard to the degrees of comparative success of each party.

80. As the Court of Appeal has recently determined (see Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208), there are even circumstances where an entirely unsuccessful council, acting responsibly in its local government role, should not have costs awarded against it even in circumstances where costs might be expected to follow the event.

81. In this case, the only appropriate outcome is that Dr Wechsler’s costs application will be dismissed.

CONCLUSION

82. In summary, I have concluded as follows:

1. The Council's position concerning the width of the pergolas at the uppermost level of Dr Wechsler’s development (being a width of 2.4m) accurately reflects the position taken by the Council in its determination of modification application F;

2. Having considered the relevant streetscape and visual prominence issues relating to these pergolas, on the merits, the Council's position is to be preferred;

3. The Council's concerns about deficiencies in the amended plans filed by Dr Wechsler on 15 July are accepted as valid in part and revised plans meeting the specifications I have earlier set out (including the revised A3 plans all being to the same scale) are required to be filed and served before a modification approval consistent with this decision can be incorporated in orders of the Court; and

4. Dr Wechsler’s application for costs is to be dismissed.

DIRECTIONS

83. To permit finalisation of these proceedings, I give the following directions:

1. The applicant is directed to file and serve replacement plans reflective of my determinations by the close of business on Wednesday 19 August 2015;

2. The respondent is to file and serve modified conditions of consent compliant with the instruction for conditions in modification applications published by the Court on 14 October 2013 with a copy of these conditions to be emailed to the Court as a Word document for my attention and with these conditions to be provided physically and electronically by the close of business on Wednesday 26 August 2015;

1. Whatever orders the respondent considers need to be made in any proceedings other than 10024 of 2013, are to be filed and served (physically and electronically) in accordance with the timetable set in (2);

2. The matter is listed for mention before me at 4.15 pm on Tuesday, 1 September 2015; and

3. If (1) and (2) are complied with and neither party notifies my Associate by 4:15 pm on Friday 28 August that they wish to be heard concerning the plans; the conditions or any orders filed pursuant to (3), I will make orders in chambers based on the filed plans and conditions and will also make such other orders as may be filed pursuant to (3) and vacate the mention on 1 September.

84. I note that I intend that the orders, when made, will:

• uphold the appeal and grant approval to the modification application in the form determined in this decision;

• finalise all three proceedings between Dr Wechsler and the Council;

• provide that Dr Wechsler’s costs application is dismissed; and

• list the exhibits that are to be retained.

85. When those orders are made, the exhibits to be returned will be provided to the parties with a copy of the orders that have been made.

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Decision last updated: 07 August 2015