Zikmann v Randwick City Council

[2004] NSWLEC 583

Land and Environment Court

of New South Wales

CITATION:	Zikmann v Randwick City Council [2004] NSWLEC 583
PARTIES:	Robert Vaughan Zikmann (Appl) Randwick City Council (Resp)
FILE NUMBER(S):	10409 of 2004
CORAM:	McClellan CJ
KEY ISSUES:	Costs :- Concurrence of Chief Judge with Commissioner's decision
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	10/22/2004
LEGAL REPRESENTATIVES:	R Zikmann (Barrister - Appl) A Bowen (Resp) Bowen & Gerathy (Sol - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

FRIDAY 22 OCTOBER 2004

10409/04 ZIKMANN v RANDWICK CITY COUNCIL

JUDGMENT

1 HIS HONOUR: Commissioner Brown has determined that the respondent should be ordered to pay the applicant's costs in these proceedings and has referred the matter to me pursuant to the relevant Practice Direction. Before an order for costs can be made I must as Chief Judge, concur in the making of that order.

2 The matter was heard and determined by Commissioner Brown who upheld the appeal. In his reasons in relation to his decision with respect to an order for costs Commissioner Brown found that the "decision to refuse the modification application was so lacking in merit that it is fair and reasonable that a costs order be made."

3 Although Commissioner Brown accepted that the elected council is not bound to accept the recommendation of its officers he also identified the fact that decisions of elected councils should not be based on arbitrary or irrelevant considerations. Commissioner Brown said:

"A decision to refuse a development application must be based on planning considerations and must be made having regard to the matters raised in s79C of the Environmental Planning & Assessment Act 1979.

4 The application in the present case proposed a modest modification to the side boundary setback of an approved building. Whatever be the environmental quality of the original approved building there can be no doubt that the proposal which has been approved by the Commissioner was designed to assist in ameliorating the impacts from the already approved structure. As the Commissioner makes plain, the decision of the council to refuse the application which made it necessary for the applicant to bring proceedings in this Court was entirely without merit.

5 In those circumstances I am satisfied that an order for costs is appropriate and accordingly I concur in the decision of Commissioner Brown.

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