Land and Environment Court of New South Wales CITATION : Thomas Developments Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 301 APPLICANT Thomas Developments Pty Ltd PARTIES : RESPONDENT Lake Macquarie City Council FILE NUMBER(S) : 11150 of 2003 CORAM: Hussey C KEY ISSUES: Costs :- Application - Class 1 development application LEGISLATION CITED: Land and Environment Court Rules (Amendment 8 2003) CASES CITED: DATES OF HEARING: 21/04/2004 DATE OF JUDGMENT: 06/23/2004 APPLICANT Dr S Beverling, barrister SOLICITORS Michell Sillar LEGAL REPRESENTATIVES: RESPONDENT Mr G Long, solicitor JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11150 of 2003 Hussey C 23 June 2004 Thomas Developments Pty Ltd Applicant v Lake Macquarie City Council Respondent Judgment Background 1 . This costs application arises from an appeal against council's deemed refusal of a subdivision application for 10 residential lots at Lot 12, DP 343815, Freemans Drive, Morriset. The applicant submits that because the council indicated just before the hearing that no further evidence would be presented, then costs incurred at the hearing should be allowed. 2 . This costs application is made on the basis of the Land and Environment Court Rules (Amendment No. 8) 2003 (the Rules), which came into effect and amended the basis for costs in Class 1cases and now provide: (2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of cost order is, in the circumstances of the particular case, fair and reasonable. 3 . According to the applicant submissions, further details of the proposal were requested and provided prior to the hearing, for council's consideration, resulting in only one outstanding issue. That related to the proposed removal of a mature Blackbutt Tree, designated Tree 17. The additional details included an Arborist Hazard Appraisal for Tree 17, which concluded: 3.1 The tree should be removed irrespective of the proposed development given the extent of the defect. The t/D reading of 26% surpasses the Mattheck safety factor of 33 %. The tree is critically dangerous. Whole tree collapse, uprooting and/or major branch failure are all likely events …. 3.2 The tree's habitat and cultural values to the broader community have, in this instance, been surpassed by safety considerations. 4 . The chronology of events indicates that on 11 February 2004, council solicitors advised the applicant's solicitors that "the respondent presses Issue 1 only of the Statement of Issues filed in these proceedings" ( i.e. possible retention of Tree 17). Accordingly , the parties agreed to exchange evidence on 16 February 2004 (due to the council considering the matter). 5 . Then on 19 February 2004, council solicitors served the statement of evidence prepared by its consultant, Mr Don Fox. This statement recommended approval of the 10 Lot subdivision, as amended. 6 . Apart from this, the proceedings were set down for hearing in Newcastle on 23 and 24 February 2004. The proceedings commenced on site on 23 February 2004, where council's solicitor advised the Court that council was not pressing any issues, but there were 8 objectors who wished to present evidence regarding Tree 17. 7 . After preliminary consideration of the nature of the objections, which were in relation to the significance of Tree 17, the parties agreed to hear these objections, even though these objectors had not previously submitted written objections. Accordingly the evidence was taken on site, summarised and presented to the Court. 8 . With respect to this costs application, the applicant now submits that council had the amended plans well before the hearing and as no further expert evidence was presented, the costs of the appeal hearing was unreasonable. 9 . Because the objections were related to the original Issue 1, it was considered reasonable to hear their further evidence. It raised a number of relevant points, which the applicants expert , Mr Castor then dealt with in the Court. These points included possible methods for retention of Tree 17 including, application of steel cables, rod bracing, propping and large limb removal. After examination, the Court accepted Mr Castor's evidence that the most appropriate outcome was to allow removal of Tree 17. 10 . The submissions in respect of this costs hearing refer to number of other cases, confirming that public interest considerations must be addressed where significant issues of merit are advanced by local residents. In my assessment, that applies in this case, because the objections identified significant cultural and historical features of this tree, which warranted extraordinary consideration, before its removal was permitted. 11 . In my opinion, these objections were legitimately raised as significant public interest merit matters and subsequently addressed in the hearing. They formed part of council's case, which required consideration. Even though council did not call expert evidence in this regard, the objections were addressed by the applicant's expert, confirming that the consent agreed to by council should be granted. Under these circumstances then, I consider there is an onus on the applicant to demonstrate to the consent authority that the environmental impacts of the development are satisfactory. Accordingly, I do not consider it is fair and reasonable to award costs against the council in this matter. 12 . However another aspect of the appeal hearing involved a site inspection of nearby subdivisions to assess reasonable conditions regarding the extent of adjacent roadworks, paving, kerb and gutter. Considering that some time was expended by the parties and the Court reviewing the conditions of consent, I consider this a further reason why costs should not be awarded in this case. Court orders 1 The application for an order for costs is dismissed. _______________ R Hussey Commissioner of the Court rjs 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.