Land and Environment Court of New South Wales CITATION : Karl J v Parramatta City Council [2005] NSWLEC 84 APPLICANT Jean Karl PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10934 of 2004 CORAM: Murrell C KEY ISSUES: Appeal :- For the construction of a carport - setback - height - costs. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Development Control Plan (DCP) DATES OF HEARING: 27/01/2005 EX TEMPORE JUDGMENT DATE : 01/27/2005 APPLICANT Mr M. Fraser, barrister SOLICITORS Lewarne & Goldsmith LEGAL REPRESENTATIVES: RESPONDENT Mr C. Gough, solicitor SOLICITORS Storey & Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 27 January 2005 10934 of 2004 Jean Karl v Parramatta City Council JUDGMENT 1 This appeal is for an application for a carport at the property known as 12 Wyralla Avenue, Epping. 2 The council today has agreed to an amended plan with the carport located at a minimum distance of 1.5 m from the front boundary and a reduction in the overall height by some 200 mm this is also agreed to by the applicant. The Court is of the view that the structure would have less impact if setback 1.5 m as opposed to being constructed on the front boundary and also the lowering of the height would be more appropriate in terms of its relationship with the dwelling house. 3 At the beginning of the proceedings the matter of costs was raised by the applicant's barrister and at the end of the on-site hearing the Court heard submissions from Mr Matthew Fraser on behalf of the applicant and Mr Chris Gough on behalf of the council as to why costs should and should not be awarded in this matter. During the discussion it became apparent that ordinary costs from the 1st December 2004 should only be sought not the full cost of the proceedings. 4 The background is that the council rescinded its refusal of the development application in December 2003. The development application was made in July 2003. Since this time there have been proposals to amend the development control plan. The most recent proposal to amend the DCP is due to be submitted to the council in February 2005. In effect this would have effect of the subject development application complying with the amended guidelines of the DCP for heritage conservation area in which the subject site is located. 5 The issue for the Court is whether it is reasonable in light of the fact that the applicant has incurred unnecessary costs and delay in having this matter considered. The appeal was lodged with the Court in August 2004 on the basis of a deemed refusal, given council's decision to refuse the application had been rescinded. Today we have a situation where a draft report has been prepared recommending approval of the development application and that would be determined following council's consideration of the amendment to the development control plan. The development control plan amendment would allow delegation for the officer to then determine the development application. Council considered that it was appropriate that the DCP be amended before the development application is determined as it would appear the reason is it could then be done under delegated authority. 6 It is noted that the appeal went to Callover on a number of occasions and by agreement the hearing was not set down awaiting the amendment to the DCP. The reason being that council would then issue consent or would be prepared to enter into consent orders once the amendment to the development control plan had been approved by the full council. After waiting some time the applicant instructed her barrister to proceed with the matter and have it listed for hearing, which was done on the 1st December 2004, and listed for today 27th January 2005 as an On-Site Hearing. 7 Apart from the merits issue the question is whether it would be fair and reasonable for the applicant to be awarded costs. That is the ordinary costs from the 1st December 2004. If so the procedure is that I make a recommendation to the Chief Judge that costs be awarded in the circumstances of the case seeking his concurrence under s 39 of the Court Act. 8 I proceeded to ask the parties to respond to the proposition given that the Court has not approved the application as submitted to the council, even though I note the applicant's agreement to moving the carport back to the position and the lowering of the carport, but nonetheless given that it is not the precise application that was submitted to the council, whether (and partial costs I leave it to the parties to respond whether that be 50% or otherwise) should be considered. 9 I consider that some costs are appropriate in the circumstances in this case. I am not satisfied that it should be 100% of those costs from the 1st December 2004 and I say this for two reasons so that you can understand my reasoning in your response. The fact that the application has been amended and I think we've ended up with a better application that is going to benefit the applicant as well as the community I also find it rather curious that the council would be seeking to have an amendment to a DCP resolved before it determines development applications (and as even though I am not looking at costs prior to the 1st December) and why in fact would one agree to adjournments so that council can amend its DCP given the history of it not occurring as quickly as council had originally anticipated. I do understand Mr Fraser's submission in that consent orders could involve less costs, although as an On-Site Hearing or consent orders it probably would not be significantly different. 10 The parties have considered apportioning costs and Mr Fraser puts to the Court that the council should pay the applicants full costs from the 1st December to the 25 January 2005 and half of today's costs of the proceedings. Mr Gough submits that he considers that Mr Hines report has not been tendered and there have been the amendments today by the court as referred to previously. 11 Overall I consider that it is fair and reasonable for the council to pay part of the applicant's costs and in the circumstances of the case having regard to all matters I have heard here today, I consider that it would be appropriate for the council to pay 50% of the applicant's costs incurred from the 1st December 2004 including today's proceedings. My reasons for this are that I think it is unreasonable of a council expect an applicant to wait while of amends to its development control plan so that the development application then accords with the DCP. The development application must be considered on its merits and if a variance to the development control plan provisions are justified and recommended on its merit with clear reasons. This process allows a development application to be considered contrary to a development control plan having regard to the individual circumstances. However the council here embarked upon a process whereby it ought to have its development control plan amendment before approving the development application and this has resulted in the applicant being frustrated and delayed and incurring unnecessary costs in terms of the appeal. 12 In the overall circumstances having regard to the fact that today's proceedings has resulted in an amended proposal I consider it fair and reasonable for the council to pay 50% of the costs from the 1st December inclusive of today's costs as well. As such I will refer to issue of costs to the Chief Judge for his concurrence. 13 The orders of the Court on the merits of the application are: 1. The appeal in respect of the property known as 12 Wyralla Avenue, Epping is upheld. 2. The development application submitted to Parramatta City Council is approved subject to a number of amendments as reflected in the conditions of consent contained in Annexure "A". 3. The exhibits are returned. The formal orders of the Court will be made in Chambers following the decision of the Chief Judge on costs. In this regard the parties have 14 days to make submissions to the Chief Judge. ________________________ J S Murrell Commissioner of the Court Ljr/rjs Pursuant to s 69(8) of the Land and Environment Court Act 1979, I concur in Order 4. ________________________ Peter McClellan Chief Judge 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. 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