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 R Zikmann (Barrister - Appl) LEGAL REPRESENTATIVES: 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.