Stanton Dahl Architects v Penrith City Council [2010] NSWLEC 156

Stanton Dahl Architects v Penrith City Council [2010] NSWLEC 156

The respondent did not establish circumstances making it fair and reasonable to order the applicant to pay the costs of the March 2009 hearing. The commissioners' formal directions for amendments were sufficiently analogous to the amber light process considered in Marinkovic 2007, and the fact that the amendments potentially affected satisfaction under cl 20(3)(b) of SREP 13 did not justify treating the case differently. However, it was fair and reasonable to order the applicant to pay any costs actually thrown away by reason of the 2009 amendments, with any dispute as to existence or amount to be determined by costs assessment.

Jurisdiction
Australia
Judgment Date
17 August 2010
Procedural Posture
Class 1 Development Appeal Costs Application / After the Appeal Against Refusal of a Development Application Was Upheld and Development Consent Granted, the Respondent Sought Costs of Two Further Hearing Days Caused by Amended Plans.
Outcome
The respondent did not obtain the costs of the March 2009 hearing, but the applicant was ordered to pay any costs thrown away by reason of the 2009 amendments; costs of the respondent's notice of motion were reserved.
Legal Topics
['class 1 Development Appeal' 'development Application Amendments' 'amber Light Amendments' 'costs Thrown Away' 'fair and Reasonable Costs Orders']
['planning and Environment' 'civil Procedure' 'costs'] ['class 1 Development Appeal' 'development Application Amendments' 'amber Light Amendments' 'costs Thrown Away' 'fair and Reasonable Costs Orders']

Case Brief

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Procedural Posture

Class 1 Development Appeal Costs Application / After the Appeal Against Refusal of a Development Application Was Upheld and Development Consent Granted, the Respondent Sought Costs of Two Further Hearing Days Caused by Amended Plans.

Legal Issues

  1. 1 ["Whether it was fair and reasonable to order the applicant to pay the respondent's costs of the 11 and 12 March 2009 hearing caused by amended plans responsive to the commissioners' concerns." "Whether the 2009 amended plans, made after the commissioners' preliminary findings and directions, justified an order for future hearing costs or only any costs thrown away." 'Whether Marinkovic v Rockdale City Council [2007] NSWLEC 71, 151 LGERA 385 was distinguishable because the commissioners had expressed preliminary thoughts and because the amendments potentially affected satisfaction under cl 20(3)(b) of Sydney Regional Environmental Plan No 13 – Mulgoa Valley.']

Ratio Decidendi

The respondent did not establish circumstances making it fair and reasonable to order the applicant to pay the costs of the March 2009 hearing. The commissioners' formal directions for amendments were sufficiently analogous to the amber light process considered in Marinkovic 2007, and the fact that the amendments potentially affected satisfaction under cl 20(3)(b) of SREP 13 did not justify treating the case differently. However, it was fair and reasonable to order the applicant to pay any costs actually thrown away by reason of the 2009 amendments, with any dispute as to existence or amount to be determined by costs assessment.

Court Disposition

The respondent did not obtain the costs of the March 2009 hearing, but the applicant was ordered to pay any costs thrown away by reason of the 2009 amendments; costs of the respondent's notice of motion were reserved.

Orders

  • ["The applicant is to pay the respondent any costs thrown away by reason of the applicant's 2009 amendments to its development application plans." "The costs of the respondent's notice of motion filed on 14 May 2010 are reserved. Any application for costs must be made within five working days by letter to the...