Krivanek v Blue Mountains Council (No 2) [2004] NSWLEC 732

Land and Environment Court of New South Wales

CITATION : Krivanek v Blue Mountains Council (No 2) [2004] NSWLEC 732 PARTIES : Dr J F and Mrs P A Krivanek (Appl) Blue Mountains City Council (Resp) FILE NUMBER(S) : 10343 of 2004 CORAM: McClellan CJ KEY ISSUES: Costs :- Concurrence of Chief Judge Council's conduct in refusing application unreasonable LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24 December 2004 DATE OF JUDGMENT: 12/24/2004

C Drury (Appl) Phillips Fox (Solicitor - Appl)

LEGAL REPRESENTATIVES: A Seton (Resp) Marsdens (Solicitors - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

FRIDAY, 24 DECEMBER 2004

10343/04 KRIVANEK v BLUE MOUNTAINS CITY COUNCIL (No 2)

JUDGMENT 1 HIS HONOUR: This matter comes before me to consider whether I should concur in the order for costs proposed by Commissioner Brown. I am satisfied that it is appropriate for me to concur. 2 In coming to this conclusion I am significantly influenced by the fact that the council had on three occasions been advised by its own officers to approve the application. That recommendation was consistent with all of the expert opinion available in the matter. The only evidence contrary to approval was that given by local people. Although the evidence of the local people is important it would seem that it was based upon a misunderstanding of the heritage value of the building. 3 In February 2004 the LEC rules were amended in relation to costs in class 1 proceedings. The relevant provision of pt 16 of the rules now reads: "(2) No order for the payment of costs will be made in proceedings to which this rule applies unless the court considers that making of a costs order, is in the circumstances of a particular case, fair and reasonable." 4 The amendment to the rules altered the basis upon which a costs order would be made from "exceptional circumstances" to circumstance where it is "fair and reasonable." I am satisfied that in the circumstances of the present case the applicant has been put to unnecessary expense in prosecuting the appeal in circumstances where the council was consistently advised to grant approval. In these circumstances I consider it fair and reasonable that the order for costs proposed by Commissioner Brown be made. **********