> Land and Environment Court of New South Wales CITATION : Optima Developments Pty Limited v Gosford City Council [2003] NSWLEC 338 PARTIES : Optima Developments Pty Ltd (Appl) Gosford City Council (Resp) FILE NUMBER(S) : 10180 of 2003 CORAM: McClellan CJ Practice and Procedure :- Costs Application for costs in Class 1 matter KEY ISSUES: Hearing required resolution of merit matters No contest between experts Whether applicant incurred costs due to 'obligation which should never have arisen' No order for costs LEGISLATION CITED: CASES CITED: Raiti v Leichhardt Municipal Council (1990-1991) 72 LGRA 333; Gee v Port Stephens Council [2003] NSWLEC 260 DATES OF HEARING: 31 October 2003 EX TEMPORE JUDGMENT DATE : 10/31/2003 D Baird (Appl) Maddocks (Sol - Appl) LEGAL REPRESENTATIVES: S Berveling (Resp) P J Donnellan & Co (Sol - Resp) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10180/03 McCLELLAN J FRIDAY 31 OCTOBER 2003 OPTIMA DEVELOPMENTS Applicant v GOSFORD CITY COUNCIL Respondent Judgment 1 HIS HONOUR: This is an application for costs in a Class 1 hearing. The development application the subject of the proceedings sought consent to erect a service station and convenience store on land at Empire Bay Drive, Empire Bay. The application was determined by Commissioner Hoffman who made his decision on 3 September 2003. On that day he apparently delivered his reasons orally. They have now been published in writing. 2 The application was the subject of some controversy within the neighbourhood of Empire Bay. That controversy is reflected in the fact that when the matter was heard by Commissioner Hoffman a number of local residents were called to give evidence. The Commissioner's reasons detailed the evidence which they gave. 3 That evidence raised issues relating to the status of the land with respect to threatened species populations or ecological communities and its quality as a wildlife corridor. It also raised issues in relation to the size and intensity of the proposal, traffic matters, pedestrian safety, impact upon scenic quality and impacts upon oyster farming and fishing in the locality. 4 More than one objector expressed concern in relation to the potential for fuel spillage from the site resulting in the potential for pollution problems, bushfire and other identified prospective difficulties. The appeal was brought in circumstances where the Council had failed to make a decision in relation to the application. However the application was debated in the Council chamber and the Council sought advice from its solicitors as to its prospects in an appeal. 5 In a letter dated 8 July 2003 the Council was advised by its solicitors that there had been a conference between the experts which had resulted in agreed questions and agreed responses. The letter went on to say: "You will note that there are few matters which are at issue and those matters which are at issue may be dealt with by way of condition. That being the case, it is our recommendation that this matter be resolved by way of consent to an approval of the proposed development, subject to stringent conditions addressing the matters which are at issue as disclosed in the answers to the agreed questions." 6 The Council did not take that advice and the matter proceeded to a hearing. The Court imposed its usual directions in relation to expert evidence with the consequence, as I understand it, that the experts reached an agreed position in relation to matters which were of concern to them. The agreement had the consequence that some amendments were made to the plans and in particular modified arrangements were made in relation to pedestrian pathways. 7 Apparently the Council in framing its original condition had relied upon an incorrect plan. Once that had been appreciated an agreed position was reached. It is submitted by the solicitor for the applicant that as a result of those discussions the outcome was that there was no matter of dispute between the experts. This submission accords with the finding of the Commissioner, however the Council at the hearing proceeded to call local persons, some of whom apparently had expertise in ecological matters. As a consequence, the evidence which they gave was the subject of cross-examination by the solicitor for the applicant and I am told from the bar table that the applicant decided that it was necessary to call evidence in reply. 8 Notwithstanding that the matters about which the local persons gave evidence were resolved in the applicant's favour, it is plain that those advising the applicant believed there was a necessity to engage in a forensic contest and both cross-examine and call evidence in reply in order to ensure that the matters raised by the local persons did not bring about a rejection of the application. In these circumstances, notwithstanding the fact that the applicant effectively succeeded in relation to matters raised by the Council's experts, a contest in relation to merit matters took place. 9 The approach which this Court takes to orders for costs in Class 1 matters has been the subject of many decisions. I have recently set forth the history of such orders in the decision in Gee v Port Stephens Council [2003] NSWLEC 260. I will not repeat the matters which I have related in the reasons for judgment in that case, however it is now apparent that the Court's Practice Directions in relation to costs in Classes 1, 2 and 3 are of no assistance in resolving these matters and costs fall to be considered in accordance with ordinary principles. However when applying those principles the approach of this Court has been to make no order as for costs in a Class 1 appeal where the appeal has required the resolution of matters of merit. 10 The situation is different where questions of law going to the parameters of the decision-maker's discretion are raised or where preliminary questions going to the capacity to grant consent are raised. Where those circumstances arise I am satisfied it is appropriate to consider whether an order for costs should be made. I am also of the view that where a Council has acted unreasonably in either refusing an application or in resisting an appeal in circumstances where it has not made a decision, it may be appropriate to make an order for costs. 11 That was the position in Raiti v Leichhardt Municipal Council (1990-1991) 72 LGRA at 333 where Justice Hemmings made an order for costs in circumstances where the applicant had incurred costs by reason of being obliged to bring a matter before the Court when "that obligation should never have arisen". In the present case, notwithstanding the fact that the ultimate hearing did not involve a contest between the experts, I am not satisfied that the applicant has incurred an obligation which should never have arisen. 12 Notwithstanding the fact that the applicant succeeded in relation to the issues raised by the local residents and even if as the matter was colourfully put by the solicitor for the applicant he had achieved 100 out of 100, nevertheless, having regard to the reasons of the Commissioner, it is plain that significant issues of merit were advanced by the local residents. The fact that the hearing occupied four days including a view and that forensic decision was made both to cross-examine and call evidence in reply satisfies me that this was an occasion where although the matter was not resolved by the resolution of issues between experts nevertheless it is a matter where the hearing required the resolution of merit matters. 13 In those circumstances I am not persuaded that the Council's case was so devoid of merit that I should visit it with an order for costs. The application is dismissed. 14 There will be no order as to costs. ********** 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. 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