Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 599

Land and Environment Court of New South Wales

CITATION : Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 599 APPLICANT: PARTIES : Equitibuild Pty Limited RESPONDENT: Leichhardt Municipal Council FILE NUMBER(S) : 10770 of 2003 CORAM: Watts C at 1 KEY ISSUES: Costs :- LEGISLATION CITED: Leichhardt Local Environmental Plan 2000, (LLEP) - State Environmental Planning Policy No 1, (SEPP1) - Residential Development Control Plan, (RDCP) CASES CITED: CSA Architects Pty Limited v Woollahra Municipal Council (No. 2) [2004] NSWLEC 234 DATES OF HEARING: 28/10/2004 DATE OF JUDGMENT: 10/28/2004

APPLICANT: Mr P Clay, barrister instructed byMr J Comino, solicitor SOLICITORS: Comino Prassas LEGAL REPRESENTATIVES: RESPONDENT: Mr G A Green, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

28 October 2004

10770 of 2003 - Equitibuild Pty Limited v Leichhardt Municipal Council

JUDGMENT Background 1 This is an application for costs by the respondent, in respect of the appeal in the matter of Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 437 which was upheld by order of the Court, at first instance, on 12 August 2004. The hearing was against the refusal by Leichhardt Municipal Council of a development application to demolish most of the existing building, except for the façade and a party wall and to erect a mixed-use commercial/ residential development comprising three (3) commercial tenancies including a restaurant and five (5) dwellings, car park and strata subdivision at Lot 2, DP 655515 and Lot 3, DP 1080, being Nos 39 and 41 Booth Street, Annandale. 2 In that case, I concluded that the appeal should be upheld and that proposal described in the Option 2 plans be approved. Option 2 which deleted the attic floor, more closely conformed to the council's controls than any other option before the Court and resulted in the proposed floor space ratio, (FSR) more closely relating to the allowable FSR. I also considered that the bulk of the proposal would thereby be more appropriate within the conservation area. In respect of that Option 2, I upheld a State Environmental Planning Policy No 1 (SEPP1) objection to the maximum FSR standard. 3 The salient issues in the case were the SEPP1 in respect of the FSR, the height, bulk, scale and streetscape character of the proposal. 4 The appeal at first instance was heard on 18 June 2004 and 4 August 2004 and the judgment was delivered on 12 August 2004 with the applicant being successful in the appeal. However, I did not accept the applicant's submission that the Option 3 plans should be approved. 5 The respondent council, by amended notice of motion dated 10 September 2004, sought an order for costs in the following terms: 1. The applicant pay the respondent's costs of the proceedings from 11am, 18 June 2004 including consultant's fees from that time; 2. The applicant pay the respondent's costs in respect of appearances before the Court on 17 June 2004; and 3. The applicant pays the respondent's costs of the notice of motion for costs. 6 I have concluded that there should be no order for costs of the hearing at first instance or for the costs-application. The basis for an application for costs 7 The power to award costs is found in s 69 Land & Environment Court Act 1979, which relevantly provides: 69(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… 8 Prior to February 2004, it was the practice of the Court to award costs only where there were 'exceptional circumstances'. From that date the Land and Environment Court Rules (Amendment No 8) 2003 (the Rules) came into effect and amended the basis for costs in the Court's Class 1 jurisdiction. The relevant provision of Pt 16 Rule 4(2) 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.