Land and Environment Court of New South Wales CITATION : Toon v Ku-ring-gai Council (No 2) [2004] NSWLEC 593 APPLICANT John Toon PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11563 of 2003 CORAM: Cowdroy J KEY ISSUES: Appeal :- SEPP 5 Development - costs LEGISLATION CITED: Land and Environment Court Act 1979, s 69(2) Land and Environment Court Rules 1996, Pt 16 r 4 CASES CITED: Canterbury City Council v Roads and Traffic Authority of New South Wales [2004] NSWLEC 536; Toon v Ku-ring-gai Council [2004] NSWLEC 173 DATES OF HEARING: 05/10/2004 DATE OF JUDGMENT: 10/05/2004 APPLICANT Mr P. Tomasetti (Barrister) SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg (Solicitor) SOLICITORS Deacons JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Cowdroy J 5 October 2004 11563 of 2003 JOHN TOON V KU-RING-GAI COUNCIL Judgment – No 2 costs 1 Judgment was delivered in these proceedings on 30 April 2004 (see Toon v Ku-ring-gai Council [2004] NSWLEC 173) in which the Court upheld the applicant's appeal against the respondent's ("the council's") refusal of development application 165/03. Such application sought demolition of an existing building ("the house") at 50 Pentecost Avenue, Pymble ("the site") and erection of a development for older people or people with a disability. 2 The applicant seeks an order that the council pay its costs on an indemnity basis of the issue which was central to the council's defence, namely whether the house and garden had heritage value. 3 Section 69(2) of the Land and Environment Court Act 1979 ("the Court Act") relevantly provides:- (2) Subject to the rules and subject to any other Act: (a) costs are in the discretion of the Court, (b) the Court may determine by whom and to what extent costs are to be paid, and (c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis. 4 Part 16 rule 4 of the Land and Environment Court Rules 1996 ("the rules") applicable to class 1 proceedings relevantly provides:- (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 a costs order is, in the circumstances of the particular case, fair and reasonable. 5 In respect of class 1 proceedings, the power of the Court to make an order for costs provided by s 69(2) of the Court Act is constrained only by the need to observe Pt 16 r 4 of the rules and to exercise judicially the discretion so provided. Facts 6 The applicant's development application was made to the council in February 2003, but by December 2003 it remained undetermined. In December 2003 the council's Heritage Conservation Planner Mr Paul Dignam prepared a report dated December 2003 which recommended that the site be included in a draft Local Environmental Plan ("LEP") as a draft heritage item and that further research and assessment of the heritage significance of the site be carried out. 7 On 16 December 2003 the council resolved to include the site in a draft LEP as a draft heritage item, to place such draft plan on exhibition, and to seek an independent heritage assessment of the site. On 17 December 2003 the applicant commenced these proceedings. 8 The draft LEP was duly prepared and exhibited. A report commissioned by the council was prepared by Graham Brooks and Associates dated February 2004 ("the Brooks report") during the exhibition period. Such report concluded that the site did not "meet the minimum entry threshold as a heritage item". 9 After the receipt of the Brooks report the solicitors for the council by letter dated 24 February 2004 instructed Ms Sheridan Burke of Godden Mackay Logan to advise whether she could support council's refusal of the development application. 10 Ms Burke prepared a draft report dated March 2004. She concluded that the site comprising the house and garden warranted heritage listing and that "positive action" was necessary to assure its conservation. Applicant's submissions 11 The applicant submits that it is entitled to its costs relating to the heritage issue on an indemnity basis since council pursued its claim that the site had heritage value when it knew from the Brooks report that no such value attached to the site. The council was unsuccessful in its claim that the site possessed heritage value. As a separate point of law the Court determined that the draft LEP was not a relevant consideration in assessing the development application. 12 The applicant submits that having received the Brooks report which did not support the listing of the site as a heritage item, there was no valid justification for the council seeking a further report. The applicant submits that the Court should infer that the only explanation for such conduct was the desire of the council to defeat the appeal by "shopping around" for an opinion which was supportive of the council's defence. Council's submissions 13 The council rejects the applicant's submissions. It submits that the further opinion was sought because the Brooks report did not investigate sufficiently the prior history of the house. Additionally it submits that it was entitled to obtain the advice of an additional expert. It maintained its position throughout the hearing and did not abandon the heritage issue. Findings 14 Although the council submitted that the Brooks report was inadequate in respect of historical enquiries undertaken for its preparation, the report shows that extensive enquiries were made. There is no evidence from the council to support the council's submission that the Brooks report was regarded by it as deficient. Nor has any satisfactory explanation has been provided by the council for its disregard of the Brooks report and for the retention of Ms Burke to provide an additional report. 15 As a result of the persistence by the council in maintaining the heritage issue, which was dismissed by the Court, the applicant has incurred substantial professional fees resulting from the necessity to retain heritage experts. In the absence of a valid reason for the retention of Ms Burke, the Court considers that it is fair and reasonable that the council meet the costs incurred by the applicant in meeting the heritage issue. 16 Whilst the applicant seeks the payment of such costs on an indemnity basis, the Court does not regard the conduct of the council to have been proved to be so unreasonable as to warrant costs on this basis: see Lloyd J in Canterbury City Council v Roads and Traffic Authority of New South Wales [2004] NSWLEC 536 at para 9. Orders 17 Accordingly, the Court makes the following orders: 1. ORDER that the respondent pay the applicant's costs incurred in these proceedings in respect of heritage issues; 2. ORDER that the respondent pay the applicant's costs of this motion. 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.