Belcrib Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 733

Land and Environment Court of New South Wales

CITATION : Belcrib Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 733 PARTIES : Belcrib Pty Limited (Appl) Baulkham Hills Shire Council (Resp) FILE NUMBER(S) : 10100 of 2004 CORAM: McClellan CJ Costs :- Amended DA KEY ISSUES: Costs thrown away Applicant ordered to pay costs in the sum of $12 000 LEGISLATION CITED: CASES CITED: Gee v Port Stephens Shire Council [2003] 131 LGERA 325 DATES OF HEARING: 22 November 2004 EX TEMPORE 11/22/2004 JUDGMENT DATE :

P Clay (Appl) McKees (Solicitors - Appl)

LEGAL REPRESENTATIVES: C W McEwen SC/C Morellan (Resp) Phillips Fox (Solicitors - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

MONDAY 22 NOVEMBER 2004

10100/04 BELCRIB PTY LIMITED v BAULKHAM HILLS SHIRE COUNCIL

JUDGMENT 1 HIS HONOUR: This matter came before me today because of Belcrib Pty Limited's desire to amend its development application to incorporate an entirely different manner of stabilising the site than that which was proposed in the original application. 2 It has not been necessary for me to obtain a complete understanding of all of the factual circumstances but it is apparent that the site which is zoned Rural 1(a) under the Baulkham Hills Local Environmental Plan 1991and on which an aged persons housing facility is proposed has some difficulties. Those difficulties generally stem from apparent instability of at least part of the site and accordingly if it is to be developed as intended, steps must be taken to stabilise roadways, pathways and provide appropriate foundations for the proposed buildings. 3 Because of the nature of the site, I understand it will also be necessary to provide some particular support for the boundary of the site with an existing main road. 4 The original development application provided one method of stabilising and providing appropriate foundations. However, during the course of preparation for the hearing, an alternate proposal has been put forward which involves very significant earth works. The agreed evidence suggests that it would be necessary if the project was to be carried out in the alternative manner to move at least 386,000 tonnes of soil, moving in total 460,700 tonnes of soil on the site. 5 Belcrib Pty Limited proposed an amendment to its development application to provide for this alternative foundation and stabilisation processes. This was opposed by the Council which said that the application was so totally different to the original that it could not be accommodated by an amendment. The Council also indicated that in its view the amended project would include an extractive industry, having regard to the volume of material proposed to be disturbed. 6 When the matter came before me this morning I heard submissions from counsel and indicated a view that by reason of the extent of the proposed disturbance, Belcrib Pty Limited may have considerable difficulties in seeking to pursue the application in its present form. Extractive industry is prohibited in the relevant zone. 7 However, I did not determine the question and indicated that it may be that the legal impediment to the project proceeding could be resolved if instead of the present form of the application it was amended to provide for a project which would be permissible with consent. After I gave this indication the parties requested an adjournment and discussions have been held. I have now been informed that an agreement has now been reached by which a form of amendment can be made to the existing application which will allow the application to be considered on its merits. The amendment proposed is significantly different from although it incorporates part of the amendment which was first put forward this morning. 8 The parties having agreed the future course of the proceedings, but have not been able to agree in relation to the matter of costs. The Council submits that because the current modifications have been achieved only after the Council raised its opposition to the amendment making it necessary for motions to be brought before a judge, it should be compensated with a costs order. It says, relying upon the amended form of Pt 16 r 14, that it would be fair and reasonable in the circumstances of this case for the Court to make an order for costs. That submission is founded substantially on what I said in relation to the approach which the Court should take to orders for costs in Gee v Port Stephens Shire Council [2003] 131 LGERA 325. 9 Counsel for Belcrib opposes an order for costs it being submitted that the ultimate compromise was only reached during the course of today and it was indicated by counsel for the Council in the matter when the matter was opened this morning that that form of compromise would not be acceptable. 10 There is force in the submission on behalf of Belcrib. However, ultimately, in my opinion, the correct analysis of the situation is that the motions which have been brought forward today were made necessary by the actions of Belcrib in seeking to amend its application. That raised a question going to the legal capacity of that amendment to be brought forward which were issues properly identified as appropriate for separate determination and which have the character of ordinary litigation. 11 Accordingly, I am of the opinion that it is appropriate that I order Belcrib to pay the Council's costs of the motion. 12 Discussion has taken place before me as to the quantum of those costs. I have asked counsel to provide me with an estimate which clearly identifies the costs associated with the bringing of the motion. I appreciate that associated with the amendment will be other costs arising from the need to consider the documentary material which was provided to the Council to support the amendment, in particular the report of the geotechnical engineer which brought forward the prospective change, will have been considered by the council probably at some length. 13 However, it seems to me, at least from my present understanding of the matter, that all of that information is likely to be of some use in the resolution of the merit matters in relation to this site. Although, perhaps, the alternative proposal of Jeffrey & Katauskas will not be pursued in whole, certainly part of it will be utilised and no doubt their views in relation to the whole of the site will feature to some degree in the resolution of geotechnical issues in the ultimate proceedings. These being matters of merit it seems to me that it would not be appropriate to compensate the Council for consideration of those matters, certainly at this stage of the proceedings. If it could be ultimately shown that the Council was put to unnecessary expense and it would be reasonable that it be compensated for that expense, an application could always be brought at the conclusion of the merit proceedings. 14 However, in my opinion, confining the costs order to the costs of the motions brought before me today, I am of the opinion that it would be appropriate to make an order in the sum of $12,000. Accordingly I make the orders in the short minutes of order which I have initialled and dated. I order Belcrib Pty Limited to pay the Council's costs of the motions in the sum of $12,000. **********