Land and Environment Court of New South Wales CITATION : Michael Stuart Architects P/L v Woollahra MC [2005] NSWLEC 732 APPLICANT Michael Stuart Architects Pty Limited PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10630 of 2005 CORAM: Hussey C Costs :- repair and alteration to a fence on a heritage listed property KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Rules 1996 Development control Plan and Fencing Code Gee v Port Stephens Council [2003]; CASES CITED: Aldi v Holroyd City Council [2005] NSWLEC 338 DATES OF HEARING: 9/11/2005 EX TEMPORE JUDGMENT DATE : 12/06/2005 APPLICANT Mr A. Abbott LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 6 December 2005 10630 of 2005 Michael Stuart Architects Pty Limited v Woollahra Municipal Council This decision was given extemporaneously. It has been revised and edited prior to publication. COSTS JUDGMENT 1 This costs claim arises out of an appeal against the refusal of a development application for restorations and adaptation of a heritage listed front/side, sandstone boundary fence at 4 Sutherland Crescent, Darling Point. 2 Following the evidence and submissions, interim findings were made that the appeal should be upheld and conditional consent granted. However further clarification and refinement of the conditions was required and consequently the matter was adjourned to allow this. 3 Subsequently, the applicant, Mr Abbott has lodged a costs claim for $13455.84 which includes the following components: $ David Kettle, Town Planner, Report/Attendance 4,547.00 Archnex Designs, Heritage Architect, Report/Attendance 5,063.24 Jasper Swann, Stonemason $726.00 $302.50 $181.50 1,210.00 Tesoriero Henderson Cotter, Lawyers 1,435.60 Michael Stuart Architect, Attendance Only 6 Hours at $200 per hour 1,200.00 4 The detailed cost claim in Exhibit 'K' contains a chronology of events and Mr Abbott's associated submission is that if the council heritage officer had accepted the initial details provided by the applicant, then the appeal could have been avoided and saved the costs of $13,544 being incurred. 5 From the evidence presented, I note that the development application was initially lodged in January 2004 and the appeal to the Court was lodged on 23 June 2005. This left a period of some 18 months where the carriage of the development application was in the hands of the council and applicant, before the Court proceedings were initiated. 6 Mr Rigg, for the council, opposes the costs claim because he submits the principal contested issue concerns heritage impacts relative to the boundary fence, which the applicant proposed to repair and adapt by generally raising its height by 300 mm. However, this was not considered acceptable or reasonable by council's assessment officers, including the relevant team leader. 7 Mr Rigg submits that the council assessment officer was entitled to make an independent assessment and not necessarily accept the position presented by the applicant, as is common place in merit appeals where the various experts differ in opinion – particularly on heritage matters. However, if there was dissatisfaction by the applicant with the assessment of the proposal, then an avenue for the applicant was to lodge an appeal for a de novea hearing. 8 In considering these competing positions, I note that the Land and Environment Court Rules 1996 Pt 16 r 4(2) provides: 2. No order for the payment of costs will be made in the proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable. 9 The consideration of costs awards is evolving and in the matter of Gee v Port Stephens Council [2003] the Chief Judge stated: 56. I have already indicated there will be many cases in classes 1 and 2 where it is appropriate there be no order as to costs. In my opinion this is likely to be the case where the issues in dispute are confined to merit considerations. However, a different approach may be required where a preliminary question is raised. If it happens that determination of the preliminary question will assist the Commissioner of his merits of the matter by defining the contents or limits on his or her discretion it is likely that no order for costs should be made. There will be others. However where the preliminary point raised is said to preclude consent at all, the proceedings cease to have the character of merit review and different considerations arise. 10 Then in the matter of Aldi v Holroyd City Council [2005] NSWLEC 338, His Honour Justice Talbot said that: the discretion to award any (fair and reasonable) costs would be on the basis that parties are to remain confident they may commence or defend proceedings without the threat of incurring liability for costs (other than their own costs) even if they are not successful party. 11 He also noted that experts can differ in respect of subjective as well a objective views on the impact of development and it is appropriate for those views to be fully articulated, tested and reconciled in the appeal process. Furthermore, he considered whether there were legitimate arguments raised by the applicant in terms of the merits of the appeal, or if they could be classified as amounting to an irrational or ambit claim. 12 From the submissions, it is apparent to me that the main basis for the costs claim is that the council assessing officer did not accept the details provided for the applicant and this necessitated the appeal by the applicant, which ultimately incurred the costs sought and this action took place before the Court proceedings were commenced. Notwithstanding this, I accept Mr Riggs submission that the principle contested issue concerns heritage matters, about which people can have different opinions. 13 Accordingly I understand that the Council can implement its own assessment procedure based on its planning controls for the area and in this case, an assessment has been made whereby the council officer preferred to keep the fence (heritage item) intact and not raise its level to possibly allow further filling behind it. 14 But most of the frustration expressed by the applicant in this case presumably occurred over the period from January 2004, when the application was lodged with council, until 23 June 2005 when the appeal was lodged. 15 Under these circumstances it does not seem appropriate for this Court to review the Council's actions in this period, prior to the appeal proceedings. Therefore any costs involved in this period would be the parties' responsibility. 16 However on initiating the appeal proceedings a Statement of Issues was formulated which contained 9 detailed issues including heritage concerns, streetscape, desired future character considerations as contained in the Development Control Plan and Fencing Code. It appears there was no challenge to these issues. 17 Consequently the appeal proceedings took place on the regular basis, by way of a view and the applicant given the opportunity to present his case. That included the presentation of heritage, planning and stone restoration opinions, at the applicant's discretion to provide evidence to support his case. These were beneficial in resolving the matter in the applicant's favour. 18 However, it seems to me that when the applicant did not originally receive the result from council he expected, he elected to lodge the appeal and there was a case to answer, in response to the agreed issues. Accordingly the council's heritage adviser maintained her initial position that the additional 300 mm should not be allowed because it would detract from the heritage significance of the heritage item. Also she raised concerns about the plan detailing and method of restoration of the wall. So that in my opinion, there was a case to answer to allow the merits to be determined. 19 Furthermore, it seems to me that the application of the Rule in Pt 16 refers to costs made in proceedings, and not specifically for costs incurred prior to the proceedings over which the Court has no control. Therefore, as legitimate issues were raised for the appeal, this allowed the applicant to decide how to present its case. This resulted in the submission of the various heritage, planners' reports, together with the stonemasons report, which were helpful in determining the matter, as I have stated. 20 Notwithstanding this, further clarification of aspects of the proposal was required during the appeal, particularly in terms of the incorrect cross section, which indicated fill adjacent to the piers of the proposed raised wall. Also the council heritage officer raised relevant concerns about the manner of repairs, which is a relevant matter in my opinion, and that has been included by way of a deferred Consent Condition. The evidence of the applicant's experts was helpful in respect to these concerns, which ultimately resulted in the appeal being allowed. Under these circumstances, I consider it reasonable for the applicant to pay its own costs for this advice. 21 In summary then, I do not consider it appropriate to take into account and review the councils assessment procedure before the appeal proceedings, which may have resulted in a different outcome, thereby avoiding the appeal. Instead I consider Pt 16 Rule allows for reasonable costs to be awarded arising out of the proceedings. As the subject proceedings were justified because of the issues raised in terms of the development consent required for this proposal, and the council presented a meritorious case, and even though it was not ultimately acceptable, I do not consider it reasonable to award costs against it. 22 In summary then, I adopt the following line of authority from Talbot J: that parties are to remain confident they may commence or defend proceedings without the threat of incurring liability for costs (other than their own costs) even if they are not the successful party …, which specifically refers to costs in proceedings, and which I do not consider covers negotiations, liaison and assessment of applications before lodging of an appeal. Therefore I do not consider it fair and reasonable to award the costs sought. 23 The results in the costs appeal being dismissed. Order 24 The orders of the Court are: 1. The costs application is dismissed 2. No order as to costs. ___________________ R Hussey Commissioner of the Court Ljr/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.