Land and Environment Court of New South Wales CITATION : James Godfrey v Wollondilly Shire Council (No 2) [2007] NSWLEC 280 APPLICANT James Godfrey PARTIES : RESPONDENT Wollondilly Shire Council FILE NUMBER(S) : 10865 of 2006 CORAM: Jagot J KEY ISSUES: Appeal :- resolution of outstanding issues - development consent granted - costs - whether fair and reasonable for applicant to pay part of Council's costs - development application insufficiently clear and not accompanied by adequate information - applicant ordered to pay part of Council's costs LEGISLATION CITED: Land and Environment Court Act 1979 s 69 Land and Environment Court Rules 1996 Pt 16 r 4 DATES OF HEARING: 16/5/07 DATE OF JUDGMENT: 24 May 2007 APPLICANT Mr P Clay SOLICITORS Moloney Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Wright SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 24 May 2007 10865 of 2006 JAMES GODFREY Applicant WOLLONDILLY SHIRE COUNCIL Respondent JUDGMENT Jagot J: 1 I delivered principal reasons in respect of this appeal on 30 January 2007. As contemplated by my reasons, the applicant submitted a further report of Mr Morse with respect to dust suppression specifying a maintenance regime for all stockpiles and a further report of Mr Haskew with respect to internal traffic arrangements. The applicant also submitted a draft operational management plan and final site development plan. The parties, with the benefit of those documents, submitted agreed conditions of development consent. 2 I am satisfied that the potential for dust generation from the stockpiles on site can be appropriately managed. According to Mr Morse, there are numerous methods of achieve a C-factor of less than 0.1 (at which level lands are generally considered to be stable). 3 The draft agreed conditions did not expressly refer to Mr Morse's recommendations about stockpiles. Accordingly, I have discussed with the representatives of the parties imposing an additional condition ensuring that stockpiles are maintained to a C factor of less than 0.1 as recommended by Mr Morse. The parties agreed that this condition should be imposed. 4 I am satisfied that the internal traffic arrangements are capable of being appropriately managed, subject to Mr Haskew's design recommendations being implemented. Those design recommendations are reflected in the final site development plan. 5 Subject to one matter, the detailed conditions of development consent and draft operational management plan, with the final site development plan, otherwise addressed the outstanding matters identified in the principal reasons. The one matter is condition 12.22, which refers to a requirement that: "The third unconstrained stockpile located on the northern boundary is to be removed within one month of the commencement of this consent." 6 It is not clear that Commissioner Brown and I fully understand the location of this stockpile. The stockpile is also not shown on the plans the subject of condition 1.2. 7 In these circumstances, given that the substance of the requirement is agreed but the wording of the condition requires some further refinement, we have decided in consultation with the parties that it is appropriate to proceed to determine the development application today, subject to appropriate directions. 8 Having regard to these matters, there are no other issues that would warrant the refusal of consent to the amended development application, subject to the agreed conditions. Accordingly, I propose to make orders upholding the appeal and granting development consent to the development application, subject to conditions. 9 The Council submitted that the applicant should pay its costs of the proceedings on and from 18 December 2006. The proceedings had been fixed for hearing on 11 to 13 December 2006. The proceedings were adjourned to enable the applicant to submit further information. The required information was fundamental to the assessment of the application. It involved the applicant in articulating with clarity, for the first time, the development for which it sought consent. The consequence was numerous additional iterations of plans and new reports. It was thus fair and reasonable, the Council submitted, in the particular circumstances of this case for the Court to order the applicant to pay the Council's costs on and from 18 December 2006. 10 The applicant submitted that it was not fair and reasonable for it to be subject to a costs order. Mr Moloney, the applicant's solicitor, deposed to the fact that the Court appointed acoustical expert had discovered the correct location of a residential receiver during the hearing, which caused a revision of his opinion. Had this been discovered earlier, the applicant would have dealt with the consequences in a more timely and efficient manner. The applicant submitted that it had simply been unsuccessful on the merits with respect to the noise and dust issues. Further, there were inevitably costs that the Council would have incurred (such as preparing the draft conditions) in the ordinary course of any merits appeal. Accordingly, it would not be fair and reasonable to impose a costs order on the applicant at all and certainly not to the extent proposed. 11 The question of costs must be approached by reference to Pt 16 r 4 of the Land and Environment Court Rules 1996, which informs the discretionary powers under s 69 of the Land and Environment Court Act 1979. That is, no order for the payment of costs will be made in the proceedings unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable. 12 I am satisfied that it is fair and reasonable that the applicant be ordered to pay part of the Council's costs of the proceedings for the following reasons: (1) The additional work carried out by theCcourt appointed acoustical expert had a minor impact on the overall course of the proceedings. It was readily apparent during the hearing on 11 to 13 December 2006 that the development application had been prepared absent a realistic appreciation of the complexity of the proposal, its potential to generate unacceptable impacts if not properly controlled, and the nature and quality of information reasonably required to enable its proper assessment. The directions made on 13 December 2006 bear this out. I directed that the applicant, amongst other things, file and serve its consolidated development proposal including a detailed description of the application, the draft operational management plan and the plans sought to be approved. This was to include the design and location of all acoustical barriers, the exclusion zones, the trees to be removed, the bush regeneration area and the landscaping proposed. (2) I noted in the principal reasons that the Council, to its credit, had dealt with a large amount of new information in a short period of time. The significance of the position adopted by the Council in this merit appeal should not be overlooked. Although it opposed the grant of consent, the Council consistently adopted an approach of dealing with the new information, insofar as practicable, within the confines of the hearing as originally fixed and the additional day fortuitously available on 18 December 2006. This approach ensured the efficient conduct of the appeal and enabled the applicant to address the serious deficiencies in its application. The applicant thereby obtained a significant indulgence as the Council's approach enabled the applicant (eventually) to have a development application in a form capable of being determined by the grant of consent. The Council's conduct was appropriate having regard to the broader context of this appeal and the capacity for further development applications to be lodged. (3) The submission about the dust and internal traffic arrangements having been determined on their merits would have had force if the applicant had not sought the further indulgence contemplated in the principal reasons. A final determination on the merits as at 30 January 2007 would have been by way of refusal of this application. However, in the particular circumstances, I allowed the parties to address further about the future conduct of the proceedings. The Council, consistent with its objective of obtaining a timely and final resolution of the appeal, did not oppose the applicant being granted the indulgence of submitting further information about the outstanding issues. I allowed the applicant to do so because, by 30 January 2007, I was satisfied that it was reasonably likely that the applicant would be able to address these matters effectively and in a timely manner. (4) The applicant's conduct clearly caused the Council to incur costs far in excess of those that would have been incurred had the applicant had a development application in a reasonable form that was capable of assessment before the hearing commenced. There was ample opportunity for the applicant to do so. It was the applicant's responsibility to lodge with the Council an application reasonably capable of meaningful assessment. The applicant did not do so and did not effectively rectify that position until recently. (5) This is not a case where the Council sought to have the applicant provide information about peripheral matters or to provide unnecessary details reasonably capable of being understood from the available information. The application (as lodged and at the commencement of the hearing) lacked fundamental coherence and basic information about primary ameliorative measures. 13 I accept that some proportion of the costs incurred by the Council from 18 December 2006 would have been incurred in the ordinary course. However, I am also satisfied that the time and effort spent on those activities (for example, preparing conditions) substantially increased as a result of the changing nature of the proposal and associate ameliorative measures, and the additional information submitted by the applicant. 14 I do not accept that it would be fair and reasonable to limit any costs order to the additional hearing day of 18 December 2006. That would not lead to a fair and reasonable result in the circumstances of this matter. It ignores the indulgence accepted by the applicant after 30 January 2007 and the substantial increased costs associated with the need to respond to the applicant's additional information. 15 I am satisfied that it is fair and reasonable in the particular circumstances of this case to order the applicant to pay 80% of the Council's costs of the proceedings as agreed or assessed on and from 18 December 2006. 16 Accordingly, I make the following orders: (1) The appeal is upheld. (2) Development consent is granted to development application D884-05 as amended with respect to lot 2 in deposited plan 570466, 28 Wonga Road, Picton, subject to and in accordance with the deferred commencement and other conditions set out in schedule "A" to these orders. (3) The parties are to file the final consolidated conditions to be included within schedule "A" by 31 May 2007. In the event of any disagreement with respect to schedule "A", the parties have liberty to restore on 24 hours' notice before 31 May 2007. (4) The applicant is to pay 80% of the Council's costs of the proceedings incurred on and from 18 December 2006, as agreed or assessed. (5) The exhibits are returned. **************************** 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.