Land and Environment Court of New South Wales CITATION : Prestige Building Services Pty Ltd v Coffs Harbour City Council and Anor [2006] NSWLEC 72 APPLICANT Prestige Building Service Pty Ltd PARTIES : FIRST RESPONDENT Coffs Harbour City Council SECOND RESPONDENT Department of Infrastructure, Planning and Natural Resources FILE NUMBER(S) : 10746 of 2004 CORAM: Preston CJ KEY ISSUES: Costs :- planning appeals - no order unless fair and reasonable - proposed order by Commissioner - whether concurrence should be granted - amendment of plans after report of court appointed expert - amendment did not fully address fundamental concern of expert - unnecessary expense of further assessment and report by expert on amended plans - applicant proposed amendment of class 1 application - amendment proper - respondent delaying unreasonably in agreement to amendment - applicant put to unnecessary expense of notice of motion LEGISLATION CITED: Land and Environment Court Act 1979, s 69(8) Prestige Building Services Pty Ltd v Coffs Harbour City Council [2005] NSWLEC 435 (10 August 2005); CASES CITED: Prestige Building Services Pty Ltd v Coffs Harbour City Council and Anor [2005] NSWLEC 707 (13 December 2005); Statewide Development Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005) DATE OF JUDGMENT: 02/21/2006 APPLICANT Ms N Zrno (solicitor) SOLICITORS LEGAL REPRESENTATIVES: Colin Biggers & Paisley FIRST RESPONDENT Mr J Mulder (solicitor) SOLICITORS MBT Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 21 FEBRUARY 2006 10746 OF 2004 PRESTIGE BUILDING SERVICES PTY LTD V COFFS HARBOUR CITY COUNCIL AND ANOR JUDGMENT 1 HIS HONOUR: On 13 December 2005, Commissioner Tuor delivered judgment on two applications for costs in a planning appeal in class 1 of the Court's jurisdiction. 2 The appeal was brought by the applicant, Prestige Building Services Pty Ltd, against the deemed refusal by the first respondent, Coffs Harbour City Council ("the Council"), of a development application to demolish an existing motel on the site and construct a multi-unit housing development with two basement car parking levels at 5-9 Boultwood Street, Coffs Harbour. The proposed development comprised six stories with a maximum height of 18 metres. 3 Commissioner Tuor dismissed the appeal on 10 August 2005: Prestige Building Services Pty Ltd v Coffs Harbour City Council [2005] NSWLEC 435 (10 August 2005). Costs were reserved. 4 On 18 August 2005, the Council made application for its costs of the appeal. 5 On 25 August 2005, the applicant contested the Council's application for its costs of the appeal and also applied for a limited order for costs in its favour in relation to its costs of the Council's notice of motion of 6 December 2004 and the applicant's notice of motion of 27 April 2005. 6 On 1 September 2005, the Council made a submission in reply, contesting the applicant's application for costs of the two notices of motion. 7 On 13 December 2005, Commissioner Tuor gave judgment on the application for costs: Prestige Building Services Pty Ltd v Coffs Harbour City Council and Anor [2005] NSWLEC 707 (13 December 2005). Commissioner Tuor proposed the following orders, subject to the concurrence of the Chief Judge: "1. The Applicant pay the First Respondent's costs for the amended plans served on 8 December 2004. The costs are those incurred by the First Respondent for Mr O'Connor's assessment and further report on the amended plans and any associated legal costs, but not administration costs. 2. Each party pay its own costs for the Notice of Motion of 6 December 2004. 3. The First Respondent pay the Applicant's costs for the Notice of Motion of 27 April 2005, being the sum of $4,744.00". 8 The requirement to seek the concurrence of the Chief Judge to the proposed order for costs stems from s 69(8) of the Land and Environment Court Act 1979. 9 Commissioner Tuor, in accordance with the then applicable paragraph 10 of the Court Practice Direction 1993, stated that: "The parties are informed of the Court's findings on the application for costs and I give the opportunity to make submissions to the Chief Judge within 14 days from the date of the publication of these findings on whether he should give concurrence to the proposed costs order.": [39] of the judgment on costs. 10 On 21 December 2005, the solicitor for the Council filed a written submission seeking not to contest the outcome of the applications for costs, but merely that the wording of one of the orders be varied. The Council submitted: "1. With regard to Order No. 3 thereof (that "The First Respondent pay the Applicant's costs for the Notice of Motion of 27 April 2005, being the sum of $4,744.00") such order should be substituted with an Order to the effect that "The First Respondent pay the Applicant's costs for the Notice of Motion of 27 April 2005, as agreed or assessed "." 11 The reason the applicant gave for its submission to vary the wording of the order was as follows: "2. The above variation to the Commissioner's Order No. 3 is sought in the absence of adequate and appropriate particulars and itemisation of such costs as referred to therein (where were quantified in this sum by the Applicant in the Applicant's Written Submissions as to Costs), to ensure the First Respondent is in a position to determine the reasonableness of such costs and to ensure such costs as specified by the Applicant are fair and reasonable". 12 No written submissions have been received by the Applicant. 13 I am satisfied in the circumstances of this particular case that the orders proposed by Commissioner Tuor (with one minor amendment) are appropriate. 14 Order 1 proposed by Commissioner Tuor concerns the Council's portion of costs of the court-appointed town planning expert, Mr O'Connor, to assess and report further on amended plans and the Council's legal costs in relation to such further assessment and reporting. 15 The necessity for the court-appointed expert, Mr O'Connor, to assess and report further arose from the conduct of the applicant in amending the plans to address only some aspects of the proposed development identified by Mr O'Connor. However, the applicant did not fully address the fundamental concern of Mr O'Connor, and of the Council, relating to the height of the proposed development. 16 The proposed development was for six stories with a maximum height of 18 metres. The height control in the relevant development control plan required a maximum height of 4 stories (12 metres). Moreover, the existing character of the area in which the proposed development was located was varied although the majority of buildings were two or less stories: Prestige Building Services Pty Ltd v Coffs Harbour City Council [2005] NSWLEC 435 (10 August 2005) at [29] and [30]. Commissioner Tuor identified the height of the proposal as the "key issue": at [28] of the judgment on the planning appeal. The finding that the height of the proposed development was unacceptable was the principal reason for Commissioner Tuor determining to refuse to grant consent and to dismiss the appeal: at [40]-[43] of the judgment on the planning appeal. 17 The conduct of the applicant in amending the plans so as not to fully address the fundamental concern in relation to height led to the court-appointed expert and the Council incurring unnecessary expense in assessing and reporting further on the amended plans. In these circumstances, it is fair and reasonable to compensate the Council for its portion of the costs of the court-appointed expert in assessing and further reporting on the amended plans and for the Council's legal costs dealing with such further assessment and reporting. 18 Order 2 proposed by Commissioner Tuor was that each party pay their own costs of the Council's notice of motion dated 6 December 2004. Neither party were successful on the hearing of that notice of motion before McClellan CJ: see [29]-[31] of the judgment on costs. In these circumstances, it is fair and reasonable that each party pay their own costs of this notice of motion. 19 Order 3 proposed by Commissioner Tuor was that the Council pay the applicant's costs of the notion of motion dated 27 April 2005. Commissioner Tuor gave an amount of the costs, namely, $4,744.00. It is only this aspect of Commissioner Tuor's order that the Council seeks to vary, substituting for the stated amount, the standard phrase "as agreed or assessed". 20 The basis for determining that it was fair and reasonable for the Council to pay the applicant's costs of the applicant's notice of motion was the conduct of the Council in not agreeing promptly to the applicant's application to amend its class 1 appeal, so as to have its appeal properly constituted: [37] of the judgment on costs. The Council ultimately gave consent to the amendment sought, but not before the applicant was put to the expense of filing and having listed its notice of motion seeking leave to amend. 21 In Statewide Developments Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005) at [26] and [27], Lloyd J held that it is fair and reasonable that a party who delays unreasonably in taking action or making proper concessions and thereby puts another party to unnecessary expense, should be ordered to pay costs to compensate the other party for that unnecessary expense. 22 So too it is fair and reasonable that a party who delays unreasonably in agreeing or refuses unreasonably to agree to proper amendments to an originating process, pleadings, evidence or interlocutory orders or directions and thereby puts another party to unnecessary expense should be ordered to pay costs to compensate the other part for that unnecessary expense. 23 In this case, the Council ought properly to have agreed to the amendment sought by the applicant to its class 1 appeal without putting the applicant to the expense of filing and listing for hearing a notice of motion seeking that relief. In these circumstances, it is fair and reasonable that the council pay the applicant's costs of the notice of motion. 24 In relation to the quantum of these costs, Commissioner Tuor noted that the amount stated, $4,744.00, was the amount submitted by the applicant: paragraph [37] of the judgment on costs. That amount was broken down to comprise an amount of $2,144.00 for the solicitor's costs and $2,600.00 for senior counsel's costs. These figures were taken from the applicant's written submissions as to costs filed 25 August 2005 at paragraph 59. Those submissions do identify in general terms the nature of the work done by each of the solicitor and senior counsel, but there is no itemisation of costs for work of the type described. It is this lack of itemisation to which the Council objects. The Council submits that without adequate particulars and itemisation the Council is not in a position to determine and make submissions on the reasonableness of the costs. 25 There is some force in this submission of the Council. In the circumstances, it is appropriate that the order that the Council pay the applicant's costs for the notice of motion of 27 April 2005 be formulated as submitted by the Council namely "as agreed or assessed" in lieu of the specification of the amount of $4,744.00. 26 For these reasons, I grant concurrence to the orders proposed by Commissioner Tuor with an appropriate amendment to Order 3. Orders 27 The orders of the Court will therefore be: 1. The applicant pay the first respondent's costs for the amended plans served on 8 December 2004. The costs are those incurred by the first respondent for Mr O'Conner's assessment and further report on the amended plans and any associated legal costs, but not administration costs. 2. Each party pay its own costs for the notice of motion of 6 December 2004. 3. The first respondent pay the applicant's costs for the notice of motion of 27 April 2005, as agreed or assessed. ********** I certify that this and the 6 preceding pages are a true copy of the reasons for the judgment of The Honourable Justice B. J. Preston. ………………………… ………………………… Associate Date 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.