Taylor v Mosman Council [2005] NSWLEC 181

Land and Environment Court of New South Wales

CITATION : Taylor v Mosman Council [2005] NSWLEC 181

Charles Taylor (Appl) PARTIES : Mosman Council (Resp)

FILE NUMBER(S) : 10048 of 2005

CORAM: McClellan CJ

Development Application :- Proposal to add an additional storey to dwelling Council refusal requiring a reduction of the additional storey's ridgeline KEY ISSUES: Request by parties for appointment of an architect as a court expert HELD: Commissioners of the Court have the required experience and expertise to resolve the matter

DATES OF HEARING: 24 March 2005 EX TEMPORE JUDGMENT DATE : 03/24/2005

M S Pearce (Sol - appl) Bowen & Gerathy (Sol - appl)

LEGAL REPRESENTATIVES:

E Dening-Franklin (Sol - resp) Pike Pike & Fenwick (Sol - resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

THURSDAY 24 MARCH 2005

10048/05 TAYLOR v MOSMAN COUNCIL

JUDGMENT 1 HIS HONOUR: This matter comes before me this morning as part of the pre-trial process. The application seeks consent to add an additional storey to a dwelling located in Iluka Road, Clifton Gardens. As I understand the situation, there is presently a dwelling on the site which is constructed at a relatively short distance from the boundary of the property with the public road. The property also has views to the harbour and, as a consequence, any development on the site can be seen from the water. 2 The application has not been approved by the Council and my understanding is there were resident objectors to an approval being granted. However negotiations have taken place with the residents and there is now no issue relevant to any neighbouring person. 3 Notwithstanding the resolution of the issues with the neighbours, the Council has determined to continue to reject the application. The Council says that the ridgeline of the proposed addition should be reduced to maximise the opportunity for views of the water from the public road and also minimise the impact of the dwelling from the harbour. 4 The matter first came before me when the parties were unable to agree on who the Court might appoint as an expert to assist in the resolution of the problem. However, once I was apprised of the true issues in the proceedings I expressed concern about the extent to which public money was being spent in the resolution of what appeared to be a relatively straight forward problem. Rather than appoint a court expert I asked whether the parties could obtain instructions as to whether the matter could proceed by neutral evaluation carried out by one of the Commissioners. 5 The Court has the capacity to offer to parties in merit appeals an opportunity to have their positions assessed informally by a Commissioner of the Court who is able to give advice as to the likely outcome if the matter was to go for formal determination. This facility is offered at no cost to the parties and will be carried out by a person with many years of experience in resolving planning disputes and with qualifications appropriate to the problem faced in the matter. As will be plain from what I have said about the issues in this case, so far it is a simple matter capable of resolution by any of the Commissioners. It reflects a problem which most of the Commissioners frequently face in the course of their work with the Court. Notwithstanding my suggestion that neutral evaluation would be appropriate and the acceptance of this position by the applicant, the Council was not prepared to join in that process. This is regrettable but, nevertheless, I do not have the power to require evaluation to occur. 6 Once the Council made plain that it would not join in neutral evaluation, attention was given to the best way of resolving the matter with a contested hearing. The Council initially submitted that it would be necessary to engage external consultants to assist in putting the Council's case. I questioned whether this would be necessary and asked that I be assured that the Mayor of the Council had been informed that those instructing on behalf of the Council had decided that the Council's money should be spent in this manner. It seemed to me, the issue as to whether or not a half metre reduction should be required and whether it could be achieved within the appropriate building controls, having regard to any alteration to the design, was a matter which must be within the competence of persons already employed by the Council. After all the issue is, as I have indicated, a simple one capable of resolution by a person familiar with the planning controls and the relevant controls upon the construction of buildings. 7 I have now been assured that the Mayor has been informed of the action which the council officers believe appropriate in this case and that instructions will be given that if the matter goes to a hearing, Council is to engage an architect to assist in the resolution of the matter. I discern that the reason why this decision has been taken has much to do with the fact that the applicant will have available to it architectural resources to assist in the resolution of the proceedings. 8 Be that as it may, the Court has available Commissioners with not only immense experience in these sorts of issues but also with architectural qualifications. I can only say that it is regrettable that it is believed it is necessary to expend further public monies in providing an additional opinion in relation to the simple architectural issues which will be involved in this matter. 9 This Court was deliberately structured by the Parliament to ensure that Commissioners with qualifications and experience were appointed so as to minimise the need for parties, applicants or councils, to spend money engaging their own experts in the resolution of problems. The intention of the legislature was that by setting up a specialist court with specialist people, the community would have the benefit of their expertise without the necessity of spending additional monies, in many cases, in duplicating the expertise which is already available at the Court. 10 The parties, having taken the positions which they have, have left me with no alternative but to allow the matter to go forward and be fixed for hearing. I will give the parties leave to approach the Registrar to obtain a suitable hearing date. That should be an on site hearing and should occur after the applicant has had an opportunity to position on the building some markers which indicate the heights of what is proposed. 11 In my opinion, the matter need not be visited with written reports and I do not propose to require any to be prepared. The matter can be adequately resolved by a discussion on site when the relevant positions can be put and the Commissioner can appreciate the impacts of what is proposed by reference to the markers which will be installed. 12 There has previously been identified an issue in relation to the landscaping of the proposal. I am not quite sure what is involved in that matter but I understand that the parties are agreed it can be resolved by the imposition of a condition and it will not be necessary for evidence to be brought in relation to that aspect of the matter. 13 The applicant seeks an order for costs in relation to the costs of today's hearing. Today's hearing is, in fact, a continuation of the case management process which I commenced last week. That management process was made necessary when the parties were unable to agree on who a court expert might be. I have now come to the conclusion that there should be no court expert and, accordingly, the original need for case management has disappeared. However, the management process has brought value to the proceedings for it has clarified the real issue and will ensure, so far as I am able, that that issue is resolved as cheaply and efficiently as possible. 14 The necessity for today's mention is, in reality, because I raised with the parties the prospect of neutral evaluation and, accordingly, I do not believe it appropriate to visit the Council with an order for costs in those circumstances. Accordingly, the application for costs is refused. **********