Land and Environment Court of New South Wales CITATION : Deakin v Hunters Hill Municipal Council (No. 2) [2005] NSWLEC 53 APPLICANT Lisa Deakin PARTIES : RESPONDENT Hunters Hill Municipal Council FILE NUMBER(S) : 10590 of 2004 CORAM: Hoffman C KEY ISSUES: Appeal :- Costs LEGISLATION CITED: Land and Environment Court Act 1979 RCM Constructions Pty Ltd v Ryde City Council (No.2) [2004] NSW LEC 361; CASES CITED: Funtime Investments Pty Ltd v Yass Valley Council [2004] NSWLEC 300 DATES OF HEARING: 05/08/2004 DATE OF JUDGMENT: 02/18/2005 APPLICANT Mr M Deakin, solicitor SOLICITORS Middletons LEGAL REPRESENTATIVES: RESPONDENT Ms K Gerathy, solicitor SOLICITORS Abbott & Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 5 August 2004 10590 of 2004 Lisa Deakin v Hunters Hill Municipal Council JUDGMENT 1 This was a class 1 appeal No. 10590 of 2004 between Lisa Deakin v Hunters Hill Municipal Council. Costs were reserved in the matter and the applicant sought a hearing on costs following the judgment. 2 The decision upheld the applicant's appeal but a condition of consent required a partial redesign of the development to make the proposal acceptable in the context of the streetscape and conservation area in which the proposal was located. 3 The core of the applicant's submission on costs was that the design changes the Court imposed had been at the council's heritage expert's suggestion and had only been communicated to the applicant on 19 July 2004, two weeks before the hearing. The applicant claimed the council's failure to communicate on that position has been typical of poor communication since the original application on 29 October 2003. 4 The applicant cited some instances of various meetings and letters where the reduction of bulk and height and the possible deletion of the 2nd storey was raised but not the design style being unsuitable. Also there were long delays in council communicating relevant information. For instance on 19 November 2003 the Council Conservation Advisory Committee expressed the above concerns in a report, but its contents were not given to the applicant until 8 February 2004. 5 The applicant said it advised the council of its intention to appeal and seek costs in April 2004. It was not until applicant got discovery in May that heritage/conservation started to surface and Mr Patch's sketches and suggested redesign came at the mediation 9 days before the hearing. By that time the applicant's costs were substantial. 6 Also the concern about the parking space in the front setback and concern about the landscaping only arose after the appeal was lodged. 7 The applicant said the council should have put all these matters before the applicant much sooner. The delay in advising of the Conservation Advisory Committee was 3 months from when the council saw it. The applicant had offered to accept any mediation decision provided the council officer attending had power to agree to a binding decision. The council had taken 1½ months just to reply to that. 8 The circumstances of the applicant meant it had holding costs, rental of family accommodation as well as professional fees. The applicant put that the Court allowed the part – 2nd storey of the proposal that the council sought to remove. Having had the appeal upheld by the Court the applicant believed it was entitled to: o Rental expenses from the date of the council refusal to the date of the Court judgment; o Legal fees from the date of lodgement of the appeal; o Experts witness fees from the date of lodgement of the appeal. 9 The respondent said such claims were unjustified. They resembled punitive damages rather than compensation for costs thrown away due to conduct of one party or the other during the course of the appeal. 10 The respondent said if the applicant had been strongly concerned about lack of communication it could have filed an appeal in November 2003 instead of 20 May 2004. The applicant could have requested for a s 82A Review by council prior to the appeal but did not. The respondent claimed the many discussions, negotiations, letters and mediations were all about the bulk and scale issues of the 2nd storey within the conservation area and obtaining an appropriate fit into the streetscape. The judgment that upheld the appeal did so subject to the council's suggested changes to the bulk and scale being applied and the plans amended. 11 In regard to the design style of the proposal being unsuitable, the respondent said the reasons for refusal issued on 18 May 2004, referred directly to the adverse impact on the setting of the Conservation Area and the impacts on the Contributory status of the existing subject property and other Contributory buildings in the vicinity. The reasons referred to relevant clauses of the statute and controls and the lack of compatibility with the character and scale of existing and adjoining buildings and the detrimental impact on the existing and desired future streetscape. 12 The issues in the appeal dated 28 June 2004 gave more detail on those concerns. They were squarely before the applicant since the appeal was lodged and that is the relevant period for the determination of costs, not the period of negotiation beforehand. The respondent maintained the same matters were clear during negotiation too. 13 The applicant was responsible for redesign of any development application not the council. Mr Patch's sketches were done in a final attempt to communicate the type of design changes needed as all other communication had seen no appropriate amendments to the proposal. Mr Patch's suggestion dealt with the concern on bulk, height and the conservation area as described in the judgment. 14 The respondent put case law on costs Appeal RCM Constructions Pty Ltd & Anor. V Ryde City Council (No.2) [2004] NSWLEC 361 and Funtime Investments Pty Ltd v Yass Valley Council [2004] NSWLEC 300. Both these decisions, the respondent said, supported the opinion that it would be fair and reasonable to make no order as to costs, and each party should pay its own expenses. 15 In considering this matter, the Court's jurisdiction on costs can only date from the lodgement of the appeal so costs sought prior to then cannot be awarded. 16 Starting from the date of lodgement of the appeal being the 20 May 2004, the question to be answered is: was there any conduct by the respondent that caused the applicant to throw away costs spent on litigation. 17 The council staff and the respondent's heritage expert had met with the applicant's architect about the concerns at various times from February 2004 onwards. The heritage expert and/or council staff met with the applicant, the architect and others about the concerns from mid April onwards. The council's notice of refusal dated 18 May 2004 drew attention inter alia to Design Parameters in DCP 15. That related directly to determinative aspects of the appeal. These included clauses that had direct implications on design style. The respondent's issues dated 28 June 2004 outlined in more detail the same concerns plus the matters of landscaping and carparking. The latter two did not become crucial to the final decision. 18 The applicant's revised Statement of Issues dated 9 July 2004 stated: "Having regard to the existing dwelling being list4ed as a contributory item within a conservation area, whether the scale of the proposed development, specifically the proposed first floor development and north eastern extension, is: (a) excessively dominant relative to the existing cottage, adjoining properties or the streetscape; or (b) otherwise in breach of the objectives in: - Clause 2(b3) of the Hunters Hill LEP No. 1; - Clause 4.7 of DCP No. 15 - Clause 3.1(b), clause 3.2(a)(i), clause 32(c)(v) and (ix) and clause 3.3(a) of DCP No. 15; or - Clause 7.2.1(a),(b),(d) and (e) of DCP No. 15. 19 A reading of the statute and controls referred to show that the issues that became determinative were squarely before the applicant on 18 May 2004 and with added detail on 28 June. The period of preparation of the formal issues between the lodgement of the appeal on 20 May and 28 June was not unreasonable. The hearing on 30 July 2004 meant that the matter was heard quite promptly after its lodgement given the need and time to confirm issues and have evidentiary reports prepared and exchanged. 20 There is no apparent reason, within the Court's jurisdiction on costs, to charge the respondent with having caused the applicant to throw away costs in the preparation for and conduct of the appeal. 21 The decision is therefore that there be no Order as to Costs and as a result each party to pay its own costs. 22 The orders of the Court are:- 1. The application for costs is refused. 2. No order is made in regard to costs. 3. Exhibits 1, 4, 5, 8 and K are returned to the parties. ___________________ K G Hoffman 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.