Land and Environment Court of New South Wales CITATION : Renaldo Plus 3 Pty Limited v Hurstville City Council (No. 3) [2005] NSWLEC 594 APPLICANT Renaldo Plus 3 Pty Limited PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 11591 of 2004 CORAM: Brown C KEY ISSUES: Costs :- Class 1 proceedings Land and Environment Court Rules (Amendment No 8) 2003 LEGISLATION CITED: Land and Environment Court Practice Direction 1993 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315; CASES CITED: Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia Ex Parte Lai Qin [186 CLR 622] DATES OF HEARING: 16/09/05 DATE OF JUDGMENT: 10/21/2005 APPLICANT Mr I Hemmings, barrister SOLICITORS Heidtman & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 21 October 2005 11591 of 2004 Renaldo Plus 3 Pty Limited v Hurstville City Council (No. 3) JUDGMENT Background 1 This is an application for costs by Hurstville City Council (the council) in relation to DA No. 204 0454 that sought the demolition of all existing structures and the erection of a mixed commercial/retail and residential development at 47 - 67 Mulga Rd, Oatley (the site). 2 The appeal was first heard on 22 March 2005 but adjourned for the preparation and consideration of amended plans. The hearing continued on 2 and 3 May 2005 and judgement was handed down 12 July 2005, the upholding the appeal and granting development consent subject to conditions (Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315). The amended plans 3 The amended plans made a number of changes to the original design however the most significant and relevant to these proceedings was the access arrangements for the supermarket loading/loading facilities. 4 The original access arrangements provided for a one - way movement of delivery vehicles. Access was provided off Woronora Parade, along a Right of Way over adjoining commercial properties in Mulga Rd (and adjoining the residential property at 79 Woronora Parade), into the loading/unloading facilities within the supermarket and exiting onto Mulga Road. 5 The amended access arrangements provided for all access off Mulga Rd with an internal turntable to facilitate entry and exit in a forward direction. The application for costs 6 The Notice of Motion filed by the council seeks the following orders: 1. That the Applicant pay the Respondents costs in respect of the amended plans and assessment thereof in the Proceedings 2. That the Applicant pay the Respondents costs of the Notice of Motion. 3. Such further or other orders as the Court may deem fit. 7 At the hearing, Mr Rigg on behalf of the council sought costs relating to: + the advertising of the amended plans, + the assessment by council officers, + the assessment and reporting by the Court appointed experts + any associated legal costs and + the costs hearing. 8 Contrary to the Courts practice, the amount of costs being sought was not provided however it was generally agreed that if an order for costs was justified, the matter would be relisted for further consideration on the amount of costs. The basis for an order for costs 9 Prior to 2 February 2004, the practice of the Court was to award costs only where there were exceptional circumstances. From this date, the Land and Environment Court Rules (Amendment No 8) 2003 (the Rules) came into effect and amended the basis for costs in Class 1 cases. 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 the making of a costs order is, in the circumstances of the particular case, fair and reasonable. 10 This change to the Rules was accompanied by an amendment to the Land and Environment Court Practice Direction 1993 that relevantly reads: 10. Where an application for costs is made in proceedings that have been heard and determined by one or more Commissioners the application shall be made, to that Commissioner or those Commissioner's (as the case may be). Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the parties shall be informed of that decision and the reasons for it and shall be given the opportunity to make submissions to the Chief Judge on the question of whether he should give concurrence to the proposed costs order. 11 In this case, the council has asked to Court to invoke the provisions of Pt 16 of the Rules. The council's case 12 Mr Rigg submits that had it not been for the opportunity to claim costs for the amended plans, the proceeding should not have been adjourned. This would have necessitated the applicant to prepare a new development application and proceed in the usual way of exhibition and council assessment. 13 The council incurred costs in entertaining the amended plans and considering the new regime in the Court; any costs should be borne by the applicant. He cites the example of the applicant's acoustic consultant who could not support the proposed development because of the affectation on the adjoining residential property after initially accepting that the proposal was acoustically acceptable. This position was reached after discussion with the Court appointed acoustical engineer and a reassessment using the correct noise criteria. The applicant's case 14 Mr Hemmings, for the applicant, submits that there is no basis for an order of costs against the applicant. The late arrival of the evidence of Mr Murray, the Court appointed acoustical expert and the difficulty in the parties meeting Mr Shiels, the Court appointed town planning expert, prior to the hearing resulted in issues being raised that were not identified in the Statement of Issues and could not be properly addressed at the hearing. 15 Mr Hemmings disputes Mr Rigg's submissions on the applicant's acoustical engineer stating that the issue that resulted from the use of incorrect noise criteria may have been addressed without the need for an adjournment. Findings 16 In considering the competing submissions, the Court had the benefit of an affidavit from Ms Carla Corradi, a solicitor employed by the solicitors acting for the applicant. The affidavit sets out the history of the matter and the discussions and correspondence with Mr Murray and Mr Shiels prior to the hearing. The contents of the affidavit were not in dispute. Potential noise impacts 17 The Court directed Mr Murray to confer with the parties and prepare an oral report by 15 March 2005 and a written statement of evidence by 17 March 2005. The proceedings being listed to commence on 22 March 2005. Late on 18 March 2005 Mr Murray provided the parties with his preliminary assessment of the application and on 21 March 2005 Mr Murray provided his written statement. The application for costs raised two issues in relation to potential noise impacts. 18 Firstly, and prior to the receipt of Mr Murray's report, the applicant's expert acoustical consultant had classified the properties at 69 and 73 Mulga Rd. as commercial. These properties adjoin the subject site and are within the same commercial zone as the subject site. The buildings are two storeys in height and burdened by the Right of Way that provided the original access to the supermarket loading/unloading facilities. Mr Murray's report however suggested that the first floor areas of these properties should be classified as residential receivers because they are used for residential purposes and therefore subject to more stringent noise criteria. 19 In considering the circumstances that led to the identification of the first floor areas at 69 and 73 Mulga Rd. as residential receptors, I am not convinced that the applicant acted in such an unfair or unreasonable manner that an order for costs should be made. 20 It could be argued that the applicant's consultant did not appropriately identify the first floor areas of 69 and 73 Mulga Rd. as residential receptors. Conversely, it could also be argued that the council did not identify the potential impact on the residential use of this part of the buildings as an issue in the proceedings. The identification of issues is not the responsibility of the Court appointed expert. This responsibility rests with the council. 21 It was an issue of some importance and was a factor in the amendment to the supermarket loading/unloading facilities. I also note that the affidavit of Ms Carla Corradi indicated that the original access was provided at the request of the council officers during discussions prior to the lodgement of the development application. 22 It was clearly unfortunate that Mr Murray's evidence arrived late and that it was only at this time that the issue of residential receptors was identified. The lateness of the report could not be attributed to either party so it I find that the making of a costs order against the applicant in the circumstances of the particular issue, would not be fair and reasonable. 23 The second matter related to potential noise impacts and arose from the use of incorrect criterion for assessing the impact on the adjoining residential property at 79 Woronora Parade by the applicant's acoustical expert. As I understand, the criterion adopted by the applicant's acoustical expert indicated that the proposed 4.8 m high acoustic fence would reduce noise impacts to an acceptable level. Mr Murray's evidence, based on a different criterion, indicated the opposite affect. After discussion between the experts, it was agreed that Mr Murray's assessment was correct. 24 Notwithstanding the concession by applicant's acoustic expert, Mr Hemmings indicated after the site view, and on the first day of the hearing on 22 March 2005, that he would endeavour to deal with this matter without the need for an adjournment. In his submissions on the costs application he reiterated this submission and stated that it may have been possible to overcome this issue with a different acoustic design. 25 Mr Hemmings further submitted that as this matter was not the subject of any evidence, following the change in the access arrangements, it would be inappropriate for the Court to make a prediction on the ability of the applicant to address this particular concern. In support of this submission, he cites Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia Ex Parte Lai Qin [186 CLR 622] at 626. 26 I accept Mr Hemmings submission on this matter and find that that the making of an order for costs against the applicant in the circumstances of the particular issue would not be fair and reasonable. Potential traffic impacts 27 The Court directed Mr Shiels to confer with the parties and prepare an oral report by 25 February 2005 and a written statement by 4 March 2005. 28 Mr Shiels provided his oral report on 9 March 2005 and a written report on 14 March 2005. 29 The affidavit of Ms Carla Corradi indicates the attempts by both parties to meet with Mr Shiels to discuss his report. I accept that both parties made genuine attempts to discuss with Mr Shiels the contents of his report however for a number of reasons the meeting did not take place. This ultimately led to both parties not having the opportunity to meet with Mr Shiels prior to the commencement of the hearing. 30 Mr Shiels was the Court appointed town planning expert and has qualifications and experience in traffic engineering as well as town planning. While not forming part of the council's Statement of Issues nor his brief, Mr Shiels identified a number of traffic and access issues arising from the use of the Right of Way for access to the proposed loading/unloading facilities for the supermarket. 31 The issues raised by Mr Shiels were considered on-site and later in Court on 22 March 2005. Even though traffic and access were not identified as issues in the proceedings, they were substantial matters that impacted on the ability to gain access to the proposed loading/unloading facilities for the supermarket and in the Courts opinion, needed to be addressed. 32 As in the previous issue relating to potential noise impacts, the opportunity for the parties to meet and consider the additional issues raised by the Court appointed expert could not be arranged prior to the hearing, although for the different reasons. It was unfortunate, however neither party could be seen to be responsible for the loss of this opportunity. It is, however difficult to escape the conclusion that the issue may not have arisen if the council had raised the clearly unsatisfactory access arrangements as in issue in proceedings. Again, it is not the responsibility of the Court appointed expert to identify the issues in proceedings. 33 For these reasons I find that that the making of a costs order against the applicant, in the circumstances of the particular issue, would not be fair and reasonable. Orders 34 For the reasons set out in the preceding paragraphs, the following orders are made: 1) The application for costs by the council is dismissed. 2) No order for costs for the costs hearing. ____________ G T Brown Commissioner of the Court 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.