Reported Decision : (2007) 151 LGERA 385 Land and Environment Court of New South Wales CITATION : Marinkovic v Rockdale City Council [2007] NSWLEC 71 APPLICANT Milano Marinkovic PARTIES : RESPONDENT Rockdale City Council FILE NUMBER(S) : 11622 of 2004 CORAM: Preston CJ Appeal :- amendment - leave sought - improved community outcome KEY ISSUES: Costs:- planning appeal - leave granted to amend - amendment part of usual conduct of appeal - no order as to costs Land and Environment Court Act (1979) s 69 LEGISLATION CITED: Land and Environment Court Rules (1996) Pt 16 r 4(2) Environmental Planning and Assessment Regulation 2000 (NSW) Marinkovic v Rockdale City Council [2006] NSWLEC 601; Hunter Development Brokerage Pty Ltd v Cessnock City Council [No.2] [2006] NSWCA 292; CASES CITED: Residents Against Improper Development Incorporated v Chase Property Investments Pty Ltd [2006] NSWCA 323; Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141; Millenium Projects Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 761; Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140 DATES OF HEARING: 7 February 2007 EX TEMPORE JUDGMENT DATE : 7 February 2007 APPLICANT Mr P Tomasetti (Barrister) SOLICITORS LEGAL REPRESENTATIVES: D.C Balog & Associates RESPONDENT Mr J Cole (Solicitor) Abbott Tout Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 7 FEBRUARY 2007 11622 OF 2004 MILANO MARINKOVIC V ROCKDALE CITY COUNCIL JUDGMENT 1 HIS HONOUR: The development application, the subject of this class 1 appeal, has had a long and tortuous history both before Rockdale City Council and in this Court. I have chronicled that history in an earlier judgement: see Marinkovic v Rockdale City Council [2006] NSWLEC 601 (19 September 2006). 2 The applicant has made multiple amendments to the development application and the plans. By the time of my last judgement on 19 September 2006, the applicant had moved the Court and the Court had granted leave to rely on amended plans that had been served on 18 September 2006, but the applicant assured the Court at that time that these amended plans reflected the development it proposed and in respect of which consent was now sought. 3 The matter was before me on that occasion for case management and for determination of the Council's motion for costs associated with the latest amended plans. I determined that the conduct of the applicant up to that time had been unreasonable and had caused the council to incur a wholly unreasonable degree of costs. In these circumstances, I determined that the applicant should pay the council's costs up to and including that day: see paras 43 and 44 of the judgement. However, I noted that after that day, the usual practice in relation to the costs of class 1 appeals would apply to the amended plans and development application, assuming, of course, that the conduct of the appeal after that day by the applicant was in the usual course. 4 To ensure the proper case management of the appeal in the future, I made a specific direction restricting further amendments of the development application and plans. I ordered: "5. No further amendments on the development application will be allowed without the express leave of Preston CJ or other judge if he is unavailable. Such leave is to be sought by way of notice of motion, together with supporting affidavit in accordance with paragraph 3 of the Court's Consolidated Court Appointed Expert Standard Direction No 1." 5 I also made other directions for the preparation of the case. 6 Subsequent to making these orders and directions, the appeal proceeded to be prepared for hearing in the usual way. On 21 September 2006, some amended plans were filed by the applicant together with an architect's report. On 26 October 2006, Mr Shiels, the court appointed town planner, received the Council's amended statement of issues. On 3 November 2006, Mr Shiels filed his report in draft form. On 13 November 2006, Mr Shiels served his final report on the parties. 7 On 14 November 2006, the hearing of the appeal commenced on site before Commissioner Tuor. The evidence of objectors was heard on site. The case continued that day and into the next day, 15 November 2006. Mr Shiels gave evidence as did Mr Lonergan, the architect for the applicant, and Mr Aberline, the planner for the applicant. 8 At the conclusion of the hearing on 15 November 2006, Commissioner Tuor gave orally an interim judgment in which she indicated that she had certain concerns as to the development proposed in the plans then before her and that certain identified amendments should be made to address these concerns. Commissioner Tuor directed that the applicant consider her findings in the interim judgment and advise within 48 hours whether it wished either to proceed with the current plans or to seek leave to amend the plans in the respects identified by Commissioner Tuor in her judgment. If the applicant wished to seek leave, Commissioner Tuor directed that an agreed timetable for amendments should be filed by 22 November 2006. 9 On 21 November 2006, the Council filed a notice of motion that the applicant pay the Council's costs in relation to any proposed amended plans. On 22 November 2006, be e-court communication, the Court made certain directions including that the applicant file and serve amended plans by 7 December 2006. 10 On 8 December 2006, the applicant filed and served amended plans. On 25 January 2006, the Council advertised the amended plans. 11 On 30 January 2006, the Council's motion for costs came before Pain J. Also on 30 January, the Council had a further notice of motion which was subsequently filed on 6 February 2007 to the same effect of its earlier motion of 21 November 2006, namely that if leave be granted by the Court to the applicant to rely upon further amended plans, the applicant pay the Council's costs of dealing with such amended plans. 12 On 5 February 2006, Pain J adjourned the Council's motion for costs and also fixed any application that the applicant might make for leave to amend the plans before me today. On 6 February 2007, the applicant filed its motion to amend the plans which was made returnable today. 13 As I had directed on 9 September 2007, the applicant has sought leave to amend its plans by means of a notice of motion supported by an affidavit. The affidavit is by Mr Balog, the applicant's new solicitor. The affidavit contains a chronology, identifies the particular plans in respect of which leave is sought and has, by way of an annexure from the architect Mr Lonergan, an explanation of the amendments and why they reduce the impact and address the matters raised by Commissioner Tuor in her interim judgment. 14 I will deal first with the applicant's motion for leave to amend the plans. I have determined that leave should be granted. Each of the amendments sought correspond with the matters identified by Commissioner Tuor in her interim judgment. They each result in a lessening of the environmental impact and result in a better community outcome than if the amendments were not made. It may be that there are certain other consequences of making those amendments which will need to be addressed at a further hearing. That can be done. But that does not detract from the worth of making the amendments that have been proposed. Ultimately, whether those amendments go far enough to make the development an acceptable development is a matter for Commissioner Tuor to determine on the resumption of the hearing. The amendments are also responsive to evidence given at the hearing, including the evidence of the court appointed expert, Mr Shiels. This is identified by Commissioner Tuor when suggesting the amendments in her interim judgment. 15 I now turn to the Council's motion for costs. I have determined that in the circumstances of this particular case, it cannot be said that it is fair and reasonable that the applicant pay the Council's costs of and associated with the applicant's motion to amend the plans. 16 I have phrased my determination in that way to reflect the words of Pt 16 r 4(2) of the Land and Environment Court Rules 1996 (NSW), which state that "No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable". Pt 16 r 4(2) is the gateway through which the court must pass to exercise its costs discretion under s 69(2) of the Land and Environment Court Act 1979 (NSW): see Hunter Development Brokerage Pty Ltd v Cessnock City Council [No. 2] [2006] NSWCA 292 (1 November 2006) para 4 per Bryson JA. 17 The rule reflects the practice that is common in administrative review proceedings, both in this Court and other courts and tribunals, that no order for costs is made unless there is some circumstance that justifies making an order: see the summary by McClellan CJ at CL in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323 (23 November 2006) at paras 219-251. 18 In this case I do not find that there is a circumstance that justifies the making of a costs order. There is no unreasonable conduct of the applicant subsequent to my decision on 19 September 2006. The applicant, subsequent to 19 September 2006, has complied with court directions and has prepared its case for the hearing which commenced on 14 November in a proper manner. The applicant's development application did not propose an unreasonable development. It was not an ambit claim. The fact that Commissioner Tuor determined that, without the specified amendments, she would not be minded to approve the development, does not make it unreasonable for the applicant to have proposed and to have sought consent for the development that it did. 19 The amendments now sought, and which I have held are proper to be made, are directly in response to the Commissioner's assessment and preliminary determination of the applicant's development application. 20 An unusual circumstance of this case is that the development relies upon existing use rights to change a non-conforming use to another non-conforming use. As a result of amendments last year to the Environmental Planning and Assessment Regulation 2000 (NSW), that is no longer possible. However, the applicant's development application was saved by transitional provisions as it was a pending development application prior to the amendments coming into force. Hence, the applicant does not have the option of lodging a new development application to address the respects identified by Commissioner Tuor. Accordingly, the applicant's only prospect of obtaining a development consent for the proposed mixed residential/commercial use is to persevere with the saved development application and persuade the Commissioner assigned the appeal, Commissioner Tuor, of the merits of the applicant's proposed development. By reason of Commissioner Tuor's interim judgment, the applicant is only likely to so persuade the Commissioner if the amendments that Commissioner Tuor identified and in respect of which the applicant now seeks leave are made. 21 In Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141, Talbot J noted that the generation of amended plans as a consequence of an evolutionary process involving management techniques adopted by the court and the appointment of a court appointed expert is not necessarily of itself a matter for adverse comment in respect of reasonableness in the context of a costs application: see para 14. 22 There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs. 23 Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment. This case is a good illustration. The multiple amendments that were made by the applicant prior to 19 September 2006 is an illustration of where an applicant has stepped outside what can be reasonably expected in the usual conduct of a class 1 appeal. 24 In Millenium Projects Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 761(1 December 2004), McClellan J said that amendments to plans in class 1 proceedings is an appropriate course to take where such amendments are responsive to the evidence including the evidence of court appointed experts: see paras 7 and 8. McClellan J went on to say that when amended plans are allowed to be filed, councils may suffer by reason of a need to assess the amended application, with the costs which had already been incurred in assessing the original application being lost. These costs may extend to the costs of its lawyers, some of the costs of experts and also the costs of advertising the application. McClellan J said: "…the price which an applicant can expect to pay, in circumstances where it seeks to lodge an amended application, will be an order for the costs thrown away by reason of the amendment.": (see para. 9). 25 McClellan J determined in that case that the applicant should pay the council's costs thrown away. Those costs included half of the costs of a court appointed expert who had originally assessed the plans, which costs would be thrown away by that person having to make a new assessment of the amended plans. The costs also included a proportion of the solicitor's costs which had been incurred on the application to amend. McClellan J made an estimate of what those costs were. 26 I do not interpret the decision of McClellan J in Millenium Projects to lay down an inviolate rule that an order for costs should always be made whenever there is an application to amend. I do not disagree with the general statement that McClellan J has said in Millenium Projects, however, as I have said earlier in my reasons, there must be some capacity for an applicant to respond to the evidence and the concerns of the Court. This should be seen as part of the usual conduct of proceedings. Where making that amendment does lead to costs thrown away, then there may be some justification for making an order as McClellan J stated. 27 There is also no principle that an applicant always has to respond to the concerns that a council raises. In Aldi Foods, Talbot J stated that: "There is no principle that requires an applicant to directly respond to the demands or even wishes of a council in order to avoid the consequences of an adverse costs order. To carry such a principle to extreme would remove any relevance to the appeal process. Experts can differ in respect of subjective as well as objective views of the impact of development and it is appropriate for those views to be fully articulated, tested and reconciled in the appeal process.": (at para. 15) 28 Similarly, there is no principle that an applicant must always respond to what a court appointed expert says: see Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140 (29 March 2006) at paras 40-42, 47-55. 29 For these reasons, I do not consider I should make an order that the applicant pay the Council's costs of the further hearing of this matter arising out of granting leave to amend the plans. 30 I need now to deal with the question of the costs of the Council's motion. The applicant seeks its costs of defending, as it turns out successfully, the Council's motion for costs. Although the usual order is that costs follow the event on motions for costs, I consider in this case there should be no order as to costs. 31 The applicant was required to seek leave of the Court to be able to rely on amended plans. This was required by my order of 19 September 2006, the Commissioner's liberty to apply on 15 November 2006, and indeed the Court rules which require that any amendment to a class 1 application be by leave of the Court and the rules which require any application be by way of notice of motion. Provided the motion for leave came before a judge, the Court could determine, as part of its determination of the application for leave to amend, the question of costs. A motion by the Council that the applicant pay its costs occasioned by the amendment to the plans was not, therefore, strictly necessary. 32 If the course had been taken whereby the Council merely had made an oral application that if the court were minded to grant leave to the applicant to rely on amended plans, then the applicant should pay the Council's costs occasioned by the amendment, and the Court determined to grant leave but not to order costs, there would not have been a costs order that the Council pay the applicant's costs of the applicant's motion. I can see no reason why a different result should follow merely because the Council determined to formalise its application by way of a notice of motion in this case. 33 The applicant sought an indulgence from the Court to rely upon amended plans. For reasons I have given, the circumstances of this case make it appropriate to grant that indulgence. These circumstances also make it not fair and reasonable to order the applicant to pay the council's costs occasioned by the amendment. But this does not mean that the applicant should receive an order for costs in its favour to compensate it for making an application which it would have had to come to the court to make in any event. 34 It is also appropriate that I make some directions for the further preparation of the matter for hearing on the amended plans which is currently fixed for Commissioner Tuor to take place on 16 February 2007. The parties have discussed and put forward some suggested directions which I consider to be appropriate. 35 Accordingly, the Court makes the following orders: 1. Leave is granted to the Applicant to amend the Class 1 Application to rely on amended plans DA 01 – Issue G dated 7 December 2006, DA 02 – Issue G dated 7 December 2006, DA 03 – Issue G dated 7 December 2006, SD 01 – Issue G dated 7 December 2006, SD 02 – Issue G dated 7 December 2006, SD 03 – Issue G dated 7 December 2006, SD 04 – Issue G dated 7 December 2006 SD 05 – Issue G dated 7 December 2006, SD 06 Issue G dated 7 December 2006, Landscape Site Plan – Issue B dated 14 November 2006, Stormwater Concept Plan – Issue G. 2. Each party is to pay their own costs of the Applicant's motion for leave to amend, dated 6 February 2007 and the Council's notices of motion for costs dated 21 November 2006 and 30 January 2007. 3. Mr Kulcher and Mr Lonergan are directed to meet as soon as possible to discuss the amended plans. 4. Any amended drawings resulting from those discussions are to be served within three business days following the meeting or 14 February 2007, whichever is sooner. 5. The Council is to serve any draft conditions of consent by 5pm on 14 February 2007. 6. Any evidence of Mr Kulcher or Mr Lonergan on issues discussed but not agreed is to be filed and served by noon on 15 February 2007. 7. Each party is granted liberty to apply to the Court on 24 hours notice to the other party. 8. I revoke the further operation of Order 6 made on 19 September 2006 that requires any further amendments to be done with express leave of Preston CJ or another Judge. 9. The exhibits are to be 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.