Banyan Hill developers Intrapac launched legal action against Ballina Shire Council due to council delays with processing the DA.
Banyan Hill developers Intrapac launched legal action against Ballina Shire Council due to council delays with processing the DA.

Developer to pay $500,000 in court costs to Ballina council

BALLINA Shire Council has been awarded almost $500,000 in costs after a lengthy court battle with a developer.

In 2017, Planners North, on behalf of Intrapac, took the council to the Land and Environment Court to appeal the "deemed refusal" of a development application for a residential estate at Cumbalum.

A "deemed refusal" is when a developer takes action because the council has not proceeded with the application within the required timeframe.

A decision on the Cumbalum DA was handed down on June 22, 2018, with the application approved with conditions.

Much of the detail had been thrashed out during the court process, which cost the council more than $1.2 million.

The council filed an application for costs in the Supreme Court and was awarded $493,816.99, including interest and the costs of the cost assessment.

However the council had asked for much more than that.

According to court documents, the council asked Planners North for $767,250 to settle the dispute in March 2019.

The council submitted a revised offer of $697,500 in May.

In July, Planners North responded with an offer of $290,000.

The council again wrote to Planners North, asking for their respective consultants to meet with a view to narrowing the gap.

But the Supreme Court costs assessor found Planners North did not respond to this invitation.

The council filed its application for assessment in October 2019.

"In these circumstances, it is my view that Planners North, as the liable party, fell short of making a genuine attempt to agree on the amount of their fair and reasonable costs concerned," the costs assessor explained in his costs assessment reasons determination.

"My assessment of fair and reasonable costs (without factoring in the costs of the costs assessment and interest) is $386,775.38."

The judge also ordered Planners North to pay the council's costs of the assessment and the judge's costs as the assessor, as well as interest.

The total came to $493,816.99.

The council's planning and environmental health director, Matthew Wood, said Intrapac's approved development was "substantially different" from what was originally proposed.

"That reflects the variety of issues raised by council as concerns both pre and during the court proceedings," he said.

"The quantum of costs awarded reflects the magnitude of the extra work for council staff and experts, that was done through the court."

Intrapac's chief operating officer, Max Shifman, said they were pleased this particular matter had come to an end.

"We made changes to our original application in a genuine attempt to avoid the need to go to a full court hearing and minimise costs that the parties incurred," he said.

"Sadly this failed, and the court rules in NSW mean any changes, no matter whether actually necessary, open up a claim for costs thrown away, which in this case was around 30 per cent of what council expended on this matter.

"It is our hope that this draws a line in the sand, and Intrapac and Ballina Shire Council can work amicably and productively in the future to avoid Land and Environment Court proceedings."