Zikmann v Randwick Council - [2004] NSWLEC 445

Land and Environment Court

of New South Wales

CITATION: Zikmann v Randwick Council [2004] NSWLEC 445

PARTIES:
APPLICANT
Robert Vaughan Zikmann
RESPONDENT
Randwick City Council

FILE NUMBER(S): 10409 of 2004

CORAM: Brown C

KEY ISSUES: Development Application :- Class 1 appeal
Application for costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Rules (Amendment No 8) 2003

CASES CITED: Cachia v Hanes (1994) 179 CLR 403;
CSA Architects Pty Limited v Woollahra Municipal Council (No. 2)(2004) NSWLEC 234;
Lawrence v Nikolaidis (2003) NSWCA 129

DATES OF HEARING: Written submissions by 04/08/04

DATE OF JUDGMENT: 09/28/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Zikmann, barrister
SOLICITORS
Self represented
RESPONDENT
Ms A Bowen, solicitor
SOLICITORS
Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

28 September 2004

10409 of 2004 Robert Vaughan Zikmann v Randwick City Council
JUDGMENT

Introduction

1 This is an application for costs in relation to an appeal against the refusal by Randwick City Council (the council) of an application to modify an approval granted by the council for the erection of a garage at 16 Scott Street Maroubra (the subject site).

2 The modification application seeks to reduce the western side boundary setback from 500 mm to 380 mm and increase the length of the setback from 2.5 m to 3.5 m. The construction of a services box adjacent to the garage and the boundary with 14 Scott Street also forms part of the application. The garage and the services box were partially constructed at the time of the modification application.

Background

3 The application was recommended for approval by council officers but was refused by the council at its meeting of 24 February 2004. The reasons for refusal relate to the adverse impact on the adjoining property and streetscape in terms of its visual bulk and scale, the reduced area available for landscaping to screen the garage wall and non-compliance with the council's DCP objectives for building setbacks.

4 The Statement of Issues reflected the reasons for refusal and also included a further issue relating to the proposed services box.

The consideration of the merits

5 The appeal was heard as a s 34 Conference on 30 June 2004.

6 The Court's consideration of the modified setback is based on the difference in the impact of the setback previously approved by the council and the setback proposed by the modification application. The difference is to be assessed in terms of visual bulk and scale, the reduced area available for landscaping and streetscape. The impact of the proposed modification of the services box is to be assessed in terms of its impact on the streetscape and the adjoining property.

7 With the benefit of the site view, the reduction in the setback from 500 mm to 380 mm will be largely unnoticeable from any distance beyond the front yard of the adjoining property. The approved 500 mm setback can only be regarded as a token attempt 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.

Continue reading Zikmann v Randwick Council

Details

AGLC: Zikmann v Randwick Council [2004] NSWLEC 445
Case: [2004] NSWLEC 445
Decision Date: 09/28/2004

CaseChat Overview and Summary

In Zikmann v Randwick Council, the applicant, Robert Vaughan Zikmann, sought an order for costs following an appeal against the council's refusal to modify an approval for the erection of a garage at 16 Scott Street, Maroubra. The modification application aimed to reduce the western side boundary setback from 500 mm to 380 mm and increase the length of the setback from 2.5 m to 3.5 m. The application also included the construction of a services box adjacent to the garage and the boundary with 14 Scott Street. The council's refusal was based on concerns about the visual bulk and scale of the garage, the reduced area for landscaping, and non-compliance with the council's Development Control Plan objectives for building setbacks.

The Land and Environment Court addressed the legal issues surrounding the refusal of the modification application and the applicant's subsequent request for costs. The court considered whether the council's decision was so lacking in merit that it was fair and reasonable to order the council to pay the applicant's costs. The court found that the council's refusal was not based on planning considerations and was therefore lacking in merit. Consequently, the court decided that it was fair and reasonable to order the council to pay the applicant's costs, limited to those of a litigant in person who is a legal practitioner, in accordance with principles established in the High Court decision of Cachia v Hanes.

The court further noted that the applicant's actions before and after the council's decision were not relevant to the consideration of the costs application. The court also did not consider the specific items and quantum of costs claimed by the applicant, as these matters were appropriately dealt with by agreement or as assessed. The court directed the parties to advise the Registrar within 7 days whether they wished to make submissions to the Chief Judge.

In conclusion, the court ordered that the council should pay the applicant's costs, either as agreed or, failing agreement, as assessed. The court emphasised that the costs should be limited to those of a litigant in person who is a legal practitioner, in accordance with principles established in Cachia v Hanes. The court also noted that the applicant's actions before and after the council's decision were not relevant to the consideration of the costs application. The court further directed the parties to advise the Registrar within 7 days whether they wished to make submissions to the Chief Judge.

Orders