ANIBAL 21 PTY LIMITED (ACN 077 952 142) v WAVERLEY COUNCIL [1998] NSWLEC 33 (9 March 1998) [1998] NSWLEC 11

Land and Environment Court of New South Wales

CITATION : ANIBAL 21 PTY LIMITED (ACN 077 952 142) v WAVERLEY COUNCIL [1998] NSWLEC 33 (9 March 1998) [1998] NSWLEC 11 PARTIES : ANIBAL 21 PTY LIMITED (ACN 077 952 142) v WAVERLEY COUNCIL [1998] NSWLEC 33 (9 March 1998) FILE NUMBER(S) : 10631 of 1997 CORAM: Talbot J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 4 March 1998 DATE OF JUDGMENT: 03/09/1998

Mr G Boskovitz (Solicitor) LEGAL REPRESENTATIVES: Mr S B Austin QC

JUDGMENT: REASONS FOR JUDGMENT

The applicant is seeking an order that the respondent pay its costs incurred in relation to a class 1 appeal heard by Assessor Bly on 24 November 1997. Assessor Bly delivered a reserved judgment on 25 November 1997 when the appeal was upheld and development consent was granted for the use of part of a house at 7 Lancaster Road, Dover Heights as a child care centre subject to conditions.

The exceptional circumstances which the applicant claims entitles it to an order for costs are solely that the council resolved to determine the development application by refusing consent notwithstanding that the preponderance of evidence, including reports by its own expert staff, supported and recommended approval.

The Court does not have the benefit of a transcript of the proceedings, or a copy of the judgment delivered by Assessor Bly. However, the applicant's solicitor, Mr Boskovitz concedes that the reasons produced by the learned Assessor are neutral in so far as the conduct of the council is concerned.

The applicant relies upon a long and detailed affidavit sworn by Jane Zarfati, a director of the applicant company, to support its case. In addition, a statement of evidence by John Edward Coady, as a director of Project Planning Associates Pty Limited, a report to the traffic committee of council dated 26 August 1997 and a memorandum to members of the traffic committee from Councillor Sally Betts dated 10 September 1997 were also tendered and became exhibits.