Alpall v Blue Mountains City Council [No 2] [2005] NSWLEC 720

Land and Environment Court of New South Wales

CITATION : Alpall v Blue Mountains City Council [No 2] [2005] NSWLEC 720

Applicant: Alpall Pty Ltd PARTIES : Respondent: Blue Mountains City Council

FILE NUMBER(S) : 10492 of 2005 of 2005

CORAM: Roseth SC

KEY ISSUES: Costs - Development Application :- Principle for awarding costs in merit cases

CASES CITED: Statewide Developments Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353

DATES OF HEARING: 13/12/2005

DATE OF JUDGMENT: 12/21/2005

Applicant: Mr D White, solicotr of Benetatos White LEGAL REPRESENTATIVES: Respondent: Mr T Cork, solicitor of McPhee Kelshaw

JUDGMENT: - 5 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

21 December 2005

10492 of 2005 Alpall Pty Ltd v Blue Mountains City Council

JUDGMENT 1 Senior Commissioner: This is an application for costs by the Blue Mountains City Council (the council) against Alpall Pty Ltd (the applicant) arising out of an appeal relating to a development for Seniors Living on lot B DP 391940, known as 33 Falls Road, Wentworth Falls. The appeal was determined on 9 November 2005 by refusal. 2 The council's advocate, Mr T Cork, submitted that the council first indicated that it required information on solar access to the proposed development in its draft Statement of issues of 4 July 2005. The applicant did not supply this information in an acceptable form despite the fact that, in addition to the council, the two Court-appointed experts also requested it on several occasions. Mr Cork drew support from my judgment, in which I stated that: …there appears to be no reason for the applicant's failure to provide it (the information on solar access) at least in time for the hearing. 3 In Mr Cork's submission, the applicant should pay the council's legal costs accrued from 4 July 2005, a sum of approximately $8,000. The cost does not include the cost of experts. 4 The applicant's advocate, Mr A White, submitted that the Court determined the application on a number of matters, not solar access alone. Mr White did not accept that the applicant failed to provide adequate information, but even on the assumption that the applicant was at fault, in Mr White's submission, the outcome would have been the same with or without adequate information on solar access.