Developer ordered to pay costs in legal stoush with Council over Lot 2 DA

The developer was unable to afford a lawyer in the latest court battle with Council due to the impacts of COVID-19.

Community members pictured protesting against the Sawtell Rd DA in 2018.

The developer behind a failed proposal for a 57-lot subdivision on Sawtell Road has been ordered to pay legal costs following a lengthy stoush with Coffs Harbour City Council in the NSW Land and Environment Court.

The developer, Regional Architects Pty Ltd, was unable to afford legal assistance in the costs hearing which took place in February, after the company was hit hard by the COVID-19 pandemic and forced to rely on Job Keeper.

The controversial application for a 57-lot subdivision in Toormina was first submitted to Council in April 2018, but was met with significant community backlash as the almost nine hectare site contained around 6 hectares of primary koala habitat.

The site, which fronts Sawtell Rd opposite the Linden Ave intersection and continues through to the Hogbin Drive Industrial Estate, also contains swamp sclerophyll forest – an endangered ecological community.

The matter was taken to the NSW Land and Environment Court with an on-site conciliation attracting well over 100 people in April 2019, but they were unable to meet a resolution.

An on-site conciliation was held in April 2019. Pictured is Regional Architect Pty Ltd director Dan Stevens.

The matter was then scheduled for a hearing in February 2020 – but on day three the developer abruptly discontinued the proceedings. Council revealed to The Advocate in March 2020 that it was considering pursuing legal costs and in September 2020 the Council filed a notice of motion.

The hearing took place earlier this year and an affidavit from Council’s lawyer revealed that Council’s legal costs had reached in excess of $368,515.

Council argued it was entitled to costs as the developer failed to provide, or was delayed in providing information necessary for Council to properly consider the application – including engineering plans and a hydrology study.

They also argued the developer continued with its appeal despite it not having any reasonable prospect of success.

Lawyers and community members attended an on-site conciliation held in April 2019.

The COVID-19 pandemic had however taken a toll on Dan Stevens, director of Regional Architects Pty Ltd, and his ability to defend the case. His solicitor informed the court that she had withdrawn due to insufficient funds.

Mr Stevens informed the court in an affidavit that his three businesses, which also include Red Factor Australia and Regional Ethical Development, had been severely impacted by the pandemic and they were relying on Job Keeper.

The developer argued it had been prejudiced by Council because it delayed filing a notice of motion to seek legal costs for several months, and as the company had been in a poor financial position since March 2020 it could not afford assistance from its former legal team.

It was also revealed during proceedings that Regional Architects had abruptly discontinued the 2020 hearing as evidence from an expert hydrologist revealed the swamp sclerophyll forest covered a greater extent of the site than previously considered by Council.

It therefore seemed unlikely the development consent would be granted without “far more work being undertaken” and there was insufficient hearing time to do so.

Community members opposed to the DA held concerns for the koala population on the site.

The new evidence revealed between 40 and 50 per cent of the endangered ecological community would be cleared, as opposed to the 0.9 per cent initially believed to be cleared under the plans.

Justice Nicola Pain recently handed down her judgment, ruling in favour of Council.

“No issues came to light in the hearing that should have surprised the applicant,” she said.

“The discontinuance by the applicant arose from its failure to address issues with its DA identified to it by the Council over many months.”

Justice Pain took into account Council’s delay in seeking legal costs, and ruled that Regional Architects Pty Ltd pay three quarters of the costs instead of the entire amount.