Land and Environment Court of New South Wales CITATION : TWR Property Pty Limited & Ors v Parramatta City Council [2004] NSWLEC 255 TWR Property Pty Limited (Appl) PARTIES : PJR Property Pty Limited (Appl) TJW Property Pty Limited (Appl) Parramatta City Council (Resp) FILE NUMBER(S) : 11647 of 2003 CORAM: Tuor C. KEY ISSUES: Costs :- Application for concurrence or otherwise by Chief Judge of a Commissioner's costs determination LEGISLATION CITED: CASES CITED: DATES OF HEARING: 12 May 2004 EX TEMPORE 05/12/2004 JUDGMENT DATE : D Wilson (Appl) Ellis McLachlan (Sol - Appl) LEGAL REPRESENTATIVES: C Gough (Sol - Resp) Storey & Gough (Sol - Resp) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11647 of 2003 Tuor C 12 May 2004 TWR Property Ltd, PJR Property Ltd and TJW Property Ltd Applicant v Parramatta City Council Respondent Judgment Introduction 1 This is an application for costs in relation to the Consent Orders for a development application to construct a mixed use development at 116-118 Wigram Street, Harris Park. An application for costs was made at the hearing on 10 May 2004. The basis for an order for costs 2 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 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. 3 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. 4 In this case, the applicant has asked to Court to invoke the provisions of Pt 16 of the Rules. The facts 5 As I understand the facts presented to me the appeal was dealt with as follows: 18 November 2003 development application lodged. 30 December 2003 appeal lodged. 6 February 2004 set down for hearing 27-28 April 2004. 31 March 2004 amended plans submitted to council's solicitor. Amendments address council's concerns following meetings between representatives of the applicant and council's consultant urban designer. 3 May 2004 Amended plans received by council. 14 to 28 April 2004 amended plans advertised. No submissions received. 20 April 2004 Notice of Motion to vacate hearing dates as advertising period would not be finished. Set down for hearing on 4 May 2004 for possible Consent Orders. 4 May 2004 Hearing of Consent Orders adjourned. No conditions of approval provided as the council assessment was not complete and it was to be considered by council on 7 May 2004. 7 May 2004 Approved by council under delegated authority 10 May 2004 Hearing of consent orders and dispute over conditions. Application for costs. The applicant's case 6 The applicant made the following alternate applications for costs: i. costs overall. On the basis that the appeal dates were vacated as Council delayed advertising the amended application; ii. Costs for 4 May 2004, which was adjourned as the conditions were not available; or iii. Costs for 10 May 2004 as this date was required due to other dates being vacated or adjourned. The respondent's case 7 The respondent opposed an order for costs for the following reasons: i) The original application was not supported by council and would have proceeded to an appeal: ii) The dates were vacated to enable advertising of amended plans. At the date of the motion, leave had not been sought to rely on the amended plans and council only supported amended plans if they were readvertised. iii) Plans were advertised on the first available date after being received by council. iv) Council determined the application expeditiously after advertising period finished (28 April to 7 May is a reasonable period). The conditions were not available on 4 May as the assessment was not complete. Findings 8 I do not accept Mr Wilson's application for costs overall. The appeal dates were set down as a reasonable period to prepare an appeal on the basis of the original plans. The amended plans necessitated further advertising and have ultimately resolved the issues. These plans were lodged on 31 March and while they could have been advertised more efficiently the time taken is not unreasonable and the overall period between lodgement and determination of the amended plans is less than 40 days. 9 I accept Mr Wilson's second application. On 20 April the hearing dates were vacated and the matter was set down for a one hour hearing on 4 May where consent orders were likely and no evidence was to be provided. This date was a reasonable period to allow for advertising and the assessment of the application. The adjournment resulted from the conditions not being finalised. It is reasonable to expect that this would have been done within the period that had been known since 20 April. I therefore agree that the applicant's costs for the hearing on 4 May are to be paid by the council. The third application therefore does not arise. Orders Subject to the concurrence of the Chief Judge, I order that the respondent pay the applicant's costs for the hearing on 4 May 2004. ________________ Annelise Tuor Commissioner of the Court 10 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.