Marinkovic v Rockdale City Council [2006] NSWLEC 601

Land and Environment Court of New South Wales

CITATION : Marinkovic v Rockdale City Council [2006] NSWLEC 601

APPLICANT Milano Marinkovic PARTIES : RESPONDENT Rockdale City Council

FILE NUMBER(S) : 11622 of 2004

CORAM: Preston CJ

KEY ISSUES: Costs :- planning appeal - applicant's conduct in failing to lodge adequate documentation, making multiple amendments to proposed development, and not prosecuting appeal with diligence - increased unreasonably the respondent council's costs - fair and reasonable to order applicant to pay council's costs to date

Environment Planning and Assessment Act 1979 (NSW) s78A(1), s78A(9) LEGISLATION CITED: Environment Planning and Assessment Regulation 2000 (NSW) cl 50(1), cl 50(2) Land and Environment Court Act 1979 (NSW) s69 Land and Environment Court Rules 1996 Pt 16, r4

DATES OF HEARING: 19/09/2006

EX TEMPORE JUDGMENT DATE : 09/19/2006

APPLICANT Mr L. McMahon (solicitor) SOLICITORS LEGAL REPRESENTATIVES: MatthewsFolbigg RESPONDENT Ms C. Bracks (solicitor) SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

19 SEPTEMBER 2006

11622 OF 2004

MARINKOVIC V ROCKDALE CITY COUNCIL

JUDGMENT

1 HIS HONOUR: The matter comes before me today for two purposes: first, to deal with a notice of motion by the council for costs in relation to amended plans and, secondly, for a directions hearing to make directions for the future conduct of the proceedings. 2 I will deal first with the motion for costs. This file is illustrative of what is wrong with the current system and why there is a need for reform in relation to class one matters. Ms Bracks, the solicitor for the council, has helpfully provided a chronology of events. What that chronology shows is that there have been 19 call-overs in person in the Court as well as 13 e-court call-overs and I should add today's motion and directions hearing. The result is a total of 33 attendances before the Court and still there is not currently a date fixed for hearing in this matter. That is a problem I will remedy by the directions that I will make shortly. Those 33 attendances before the Court without any hearing have occurred over a period of 21 months from filing of the appeal. 3 The Court fixes standards for the disposal of matters in all of its jurisdictions. In class 1, in which class these proceedings fall, the standard is that 95 per cent of class 1 matters are to be completed within six months of registration. That is to say, a hearing is held, a judgment is delivered and orders are made within six months after filing of the class 1 application. When we compare that standard of six months to what has occurred in this appeal, so far 21 months, the appeal is 15 months over the standard of six months. This is a completely unacceptable result. 4 Until the applicant instructed his current solicitors on 11 August 2006, the applicant has not been ready to proceed. 5 To explain the unacceptability of the applicant's conduct in the preparation of the appeal, I will need to summarise the chronological events which have caused the excessive delay and increased unreasonably the cost to the Council. 6 The development application was filed by the applicant with the council on 12 December 2003. That development application was required to be accompanied by all of the documents required to make it a proper development application: see section 78A(1) and (9) of the Environment Planning and Assessment Act 1979 and clause 50(1) and (2) of the Environment Planning and Assessment Regulation 2000. I mention subclause (2) of clause 50 which concerns the requirement for a residential flat building to address the matters in State Environmental Planning Policy No 65. That subclause applies to development applications made after 1 December 2003. As I said, this development application was made after that date, being made on 12 December 2003. See also schedule 1 to the Regulation, both clause 1 concerning the information that must be included in the development application and clause 2 concerning the documents that must accompany a development application. In addition, many environmental planning instruments, including local environmental plans, require information to be provided with the development application. 7 It is incumbent upon an applicant for development consent to comply with each of these statutory requirements for a development application at the time the development application is made before the consent authority. Hence, in this case, the development application made by the applicant on 12 December 2003 should have involved a carefully thought-out development proposal with all of the information and documents that are required by the Act and the Regulation to be included in order to enable the consent authority to consider and determine the development application. 8 For a reason that has not been explained, the council did not determine the development application that was made for at least a year. Hence, on 22 December 2004, the applicant lodged an appeal to this Court in class 1 of the Court's jurisdiction against the council's deemed refusal of the development application. No explanation is provided as to why it took the applicant that long to lodge an appeal against the deemed refusal. An applicant has a right to appeal after 40 days, subject to the consent authority "stopping the clock" by requesting further information. The delay after the 40 day period and before the appeal was lodged of over 12 months is just one of many of the delays that has occurred in this case. Of course in that 12 month period, if there were aspects of the development application that needed to be amended or addressed by further information, the applicant could have been done so. 9 After the class 1 application was filed on 22 December 2004, the applicant took no action to further its appeal for many months. At a series of callovers on 9 February 2005 and 9 and 11 March 2005, the appeal was stood over repeatedly. The council filed a draft and a draft statement of basic facts on 11 February 2005. 10 The council actually refused the development application on 6 April 2005. Shortly afterwards, on 12 April 2005, the council filed a statement of issues and statement of basic facts. The matter was then before the Court for call-over on 13 April 2005. This was the first call-over after the Council's refusal. That is almost four months after the class 1 application was filed. Still the applicant took no action to prosecute its appeal. The matter was adjourned to 11 May 2005 for e-court communication. 11 The applicant had apparently not filed or served geotechnical and contamination reports with the development application or the class 1 appeal to this Court. By 12 May 2005, the council informed the Court via e-Court communication, that the applicant had advised it would provide geotechnical and contamination reports by 8 June 2005. Alas, that was not to be. On 8 June 2005, at the next call-over, the reports had not been provided. The matter was adjourned for three weeks to 29 June 2005 in order to allow the applicant time to provide to the Council and the council time to consider the applicant's geotechnical report and site contamination report. 12 Eventually the contamination and geotechnical investigation reports were filed and served on 27 June 2005. Two days later, on 29 June 2005, a further call-over was held. Since the council had only just received the geotechnical and site contamination reports, the matter was adjourned to 13 July 2005 to give the council time to consider the reports. 13 On 13 July 2005, at the next call-over, the council advised that the site contamination report was inadequate. The applicant was granted an adjournment of six weeks to prepare an amended site contamination report addressing the inadequacies and the council was granted a further two weeks to consider that amended report. Hence, the matter was adjourned for two months to 7 September 2005 in order to enable those steps to occur. 14 As was common and continues to be common in this matter, that timetable blew out yet again, so on 7 September, 30 September, 4 October and 5 October 2005 the matter was adjourned at call-over or by e-court communication, ultimately to 7 October 2005. 15 On 7 October 2005, some three months after the applicant was given time to prepare an amended site contamination report, the applicant served the council at the call-over with the amended site contamination report. Of course the council was not in a position to consider that report there and then, so the matter was adjourned for two weeks to 21 October 2005, to give the council time to consider it. 16 At the call-over on 21 October 2005, the Council served an amended statement of issues which still raised an issue in relation to the deficiency of the site contamination report. The Registrar directed the Council to identify the problem with the report and adjourned the matter to 25 October 2005. 17 Also on 21 October 2005, by e-court communication, the Court appointed a planner, Mr Gary Shiels, as a court appointed expert. This means that it took some ten months after the applicant filed its class 1 application, before a court-appointed expert was appointed. Nothing had been done to further the appeal in relation to planning in that time. The matter was listed for call-over on 25 October 2005. 18 On 25 October 2005, when a call-over was held, the council filed the further amended statement of issues. The Council identified the problem as being the significant discrepancies between the amended report and the original report. The matter was adjourned for a mention before the duty judge on 1 November 2005. 19 On 1 November 2005, the duty judge, Pain J, adjourned the matter in order to allow the applicant to rectify the significant discrepancies in the site contamination report. The applicant was directed by the duty judge to file and serve a further amended site contamination report by 22 November 2005 and various costs orders were made. The matter was stood over to 6 December 2005 for the allocation of a hearing date. 20 On 28 November 2005, the Council filed and served a notice of motion that the proceedings be set down for hearing and costs. 21 On 6 December 2005, a further call-over was held. At that time the applicant still had not served on the council the amended site contamination report. The council's notice of motion that it had filed for costs was determined by the registrar and the registrar directed that the applicant pay the costs of the call-over and the costs of previous non-compliances by the applicant with previous orders. The matter was stood over to 20 December 2005. 22 On 20 December 2005, the Registrar made directions at a call-over for a timetable for Mr Shiels, the court-appointed expert, to provide his evidence. The matter was set for hearing on 12 and 13 April 2006. 23 On 13 February 2006, Mr Shiels delivered his preliminary report. He indicated he had concerns of bulk and scale, lack of set-backs to the south and west, the alignment on Grand Parade, the impacts on neighbours and the relevance of the SEPP65 assessment. Later on 27 February 2006, the parties met with Mr Shiels to discuss his preliminary report. 24 On 14 March 2006, at a call-over, the applicant expressed a desire to go to mediation. Although the council opposed mediation, Biscoe J who was presiding at the call-over directed that the parties proceed to mediation. There is of course power in the Court rules to direct parties to go to mediation compulsorily. The matter was stood over to 17 March 2006 for call over to make directions for the mediation. 25 On 17 March 2006, at the call-over, Jagot J who was presiding, directed the parties to undertake the mediation on 20 March 2006. In the week commencing 20 March 2006, a mediator was appointed and a preliminary mediation conference occurred on 29 March 2006 and the mediation occurred on 3 April 2006. 26 On 5 April 2006, the applicant filed a notice of motion seeking vacation of the hearing date. The applicant's notice of motion was heard on 7 April 2006 and the hearing dates were vacated. On that occasion the applicant also sought further time to submit amended plans. The applicant was directed to file and serve amended plans by 21 April 2006. 27 On 9 April 2006, the applicant submitted amended plans directly to the council. These plans did not address the outcomes in the mediation. The council rejected those plans. The applicant said they were draft plans and had been submitted to the council for further discussion. 28 On 28 April 2006, a call-over was held and the parties were directed to inform the Court by 2 June 2006 as to whether the mediation was an on-going process. 29 As I said, the amended plans were meant to be filed by 21 April 2006. They of course were not done so by that date and it was not until 1 May 2006 that the applicant provided amended plans. 30 The council advised that it opposed the plans of 1 May 2006. Those amended plans lasted for about one week, before 17 May 2006 the applicant indicated it was going to provide further amended plans. On 23 May 2006, the council's solicitors wrote to the applicant stating that the council would not accept any further amended plans as amended plans were already directed to be filed by 21 April 2006. 31 On 2 June 2006 at the call-over, the council formally opposed leave being granted to the applicant to rely on the 1 May 2006 plans. The registrar directed that final amended plans be lodged with the council by 16 June 2006 and that no further preliminary plans were to be lodged directly with the council. Somewhat remarkably, the applicant complied with a direction of the court and filed amended plans on 16 June 2006. 32 On 17 June 2006, the council filed and served a second amended statement of issues. 33 On 20 June 2006, the council agreed to the applicant relying upon the plans of 16 June 2006. Directions were made in relation to the provision of those plans to Mr Shiels, the court-appointed expert, for him to consider and report on them and for arrangements to be made in relation to the payment of Mr Shiels' fees. On 30 June 2006, an e-court communication addressed the matter of Mr Shiels' fees. The matter was adjourned to a callover on 6 July 2006. 34 On 6 July 2006, the dates of 19 and 20 September 2006 were reserved for hearing. On 10 July 2006, by an e-court communication, the Court confirmed the hearing dates of 19 and 20 September 2006. Two days later, on 12 July 2006, by e-court communication, the Court confirmed the parties' reliance on the plans of 16 June 2006 and directed that an amended statement of issues be filed by the council by 14 July 2006. 35 This time the council was a little late, and so by 17 July 2006 a third amended statement of issues was filed and served. 36 Mr Shiels provided a preliminary report on 1 August 2006 in relation to the 16 June 2006 plans. He still expressed concerns in relation to the zero setback from Grand Parade and excess floor space ratio, excessive bulk and massing of the building, relationship proposed with the neighbour to the south and internal amenity. 37 On 21 August 2006, the applicant not having changed its plans for a while, filed and served a notice of motion to rely on amended plans. On 25 August 2006, the parties engaged in an E-court communication in relation to payment of fees. On 29 August 2006, the call-over that had been fixed for 30 August 2006 was vacated. On 30 August 2006, Mr Shiels provided his final report in relation to 16 June 2006 plans. Mr Shiels still expressed concerns with the nil setback to Grand Parade, excessive floor space ratio and inapt relationship between the proposal and buildings to the south. 38 On 5 September 2006 at a call-over, the applicant moved on its notice of motion to rely on amended plans. The applicant was granted leave by the assistant registrar to rely upon the amended plans attached to the notice of motion. Apparently the hearing dates that had been fixed for 19 and 20 September 2006 were vacated and the applicant was directed to pay costs of notification of the call-over and 100 per cent of Mr Shiels fees for the final report. 39 On 8 September 2006, the further amended plans were served on the council. On 13 September 2006 by E-court communication, the council was directed to file a fourth amended Statement of Issues by 25 September 2006 and a further call-over was fixed on 15 September 2006 to set the matter down for hearing. On 15 September 2006, the matter came before the registrar who stood the matter across before me today, 19 September 2006, for further directions and to deal with the council's notice of motion which had been filed on 15 September 2006. 40 As I said, this chronology shows the sorry history of this matter. The result is, that after 21 months in this court, plus a further 12 months before the council, the applicant is only now working out what is the development that it wishes to carry out. 41 In these circumstances, the applicant has caused the council to incur a wholly unreasonable degree of costs. The Land and Environment Court Act, s 69 and the Rules, Part 16, rule 4, provide that there will be no orders as to costs in class one unless it is fair and reasonable in the circumstances of the case. The chronology that I have gone through above shows that it is entirely fair and reasonable that the council be compensated for the applicant's failure to lodge adequate documentation and determine what was the development application that it wished to make. 42 The applicant says now that it has worked out what application it wants to make and that it is the development shown in the set of plans in respect of which leave was granted by the assistant registrar on 5 September 2006. If that is so, then from here on in the matter should proceed as if the applicant had done that, as it ought to have done, on the day it first filed its class 1 application before the Court. 43 The way to compensate the council for the applicant's conduct is to order the applicant to pay the council's costs of the proceedings up to and including today. That would mean that after today the usual order would apply, but before today, an order that the applicant pay the council's costs will compensate the council and put it back into the position it ought to have been in if the applicant had discharged its duty under the Act and the Regulation and to the Court, as it ought to have done. 44 Accordingly, I order the applicant to pay the respondents costs of the proceedings up to and including today, other than the matters in respect of which the Court has already made costs orders, as agreed or assessed. 45 I now turn to deal with the second aspect that was before me, namely, directions for the future conduct of this matter. I make the following directions.