Altomonte v Hunters Hill Council - [2002] NSWLEC 65

Reported Decision: 120 LGERA 286

Land and Environment Court

of New South Wales

CITATION: Altomonte v Hunters Hill Council [2002] NSWLEC 65

PARTIES:
APPLICANT
A Altomonte
RESPONDENT
Hunters Hill Council

FILE NUMBER(S): 10585 of 2001

CORAM: Pain J

KEY ISSUES: Costs :- Class 1 proceedings - whether Order under s 121B of the Environmental Planning and Assessment Act 1979 is a "planning and building appeal" - does Practice Direction 1993 par 10 apply - whether costs should be awarded

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B, s 121ZK
Land and Environment Court Act 1979 s 69
Local Government Act 1993 s 124, s 180
Practice Direction par 10, par 10A

CASES CITED: Barnes v Dungog Shire Council [1999] NSWLEC 146; (1999) 103 LGERA 269 ;
Care v Canterbury City Council (2001) 115 LGERA 252 ;
CSR Limited v Fairfield City Council and Anor [2001] NSWLEC 221;
Gardiner & Anor v Hornsby Shire Council [2000] NSWLEC 37;
Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376 ;
Misra v Campbelltown City Council No 2 [Costs] [2002] NSWLEC 63;
Oosthuzien v Sutherland Shire Council [2001] NSWLEC 137;
Prince v North Sydney Council (2001) 115 LGERA 65;
Van Haasteren v South Sydney Council [2000] NSWLEC 168;
Wilson on behalf of the Gurrungigar Environment Group v Bourke Shire Council and ors [2001] NSWLEC 200

DATES OF HEARING: 08/04/2002

DATE OF JUDGMENT:
06/07/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Drury (Solicitor)
SOLICITORS
Phillips Fox
RESPONDENT
Mr S Berveling (Solicitor)
SOLICITORS
Abbott Tout

JUDGMENT:

Altomonte

Applicant

Hunters Hill Council

Respondent

Judgment

Introduction

1. In these proceedings the Applicant seeks an Order for costs in Class 1 proceedings decided by Commissioner Murrell on 12 December 2001. The proceedings concerned an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against an Order issued by Hunters Hill Council (the Council) under s 121B of the EP&A Act requiring the demolition of a fence adjoining the foreshore to the Lane Cove River (the Order).

2. By Notice of Intention to Issue an Order dated 25 January 2001, the Council gave the Applicant notice of its intention to serve an Order under s 121B of the EP&A Act. The Notice of Intention stated that the Council proposed a period of 14 days from the time the Order issued as the period of compliance. By letter dated 9 February 2001 from the Applicant to the Council, the Applicant asserted that the Notice was invalid and that the Council had no power to issue an Order in reliance on the Notice. The Order was issued on 16 July 2001. The Order specified a period of seven days from the date of the Order as the period of compliance. The Applicant appealed against the Order in Class 1 proceedings.

3. The Applicant filed a Statement of Issues which raised a number of matters concerning whether the Order was invalid due to:

contrary to and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWLEC 65
Decision Date: 06/07/2002

CaseChat Overview and Summary

The Applicant, A Altomonte, sought an Order for costs in proceedings against the Hunters Hill Council (the Council) in the Land and Environment Court of New South Wales. The original proceedings concerned an appeal against an Order issued by the Council under s 121B of the Environmental Planning and Assessment Act 1979 (EP&A Act), requiring the demolition of a fence adjoining the foreshore to the Lane Cove River. The Applicant argued that the Order was invalid as it did not comply with the statutory requirements, and the Council's seven-day compliance period was unreasonable. The Applicant appealed the Order, and the appeal was determined by Commissioner Murrell, who found in favour of the Applicant on both legal and merits grounds.

The primary legal issues before Pain J were whether the Practice Direction 1993 par 10 applied to appeals against statutory Orders in Class 1 and 2 proceedings, and if so, whether exceptional circumstances needed to be shown before an order for costs could be made. The Applicant argued that the nature of these proceedings, dealing with the validity of an Order issued under s 121B of the EP&A Act, should be distinguished from planning and building appeals. The Council, on the other hand, argued that the circumstances of the case were not exceptional, and there was time to have the legal questions determined before the merits case.

Pain J held that the Practice Direction 10 did not necessarily apply to costs in appeals against enforcement Orders under the EP&A Act and the Local Government Act 1993. The Court's discretion must be exercised under s 69(2) of the Land and Environment Court Act 1979. Pain J found that it was appropriate to make an award of costs in the Applicant's favour, given that the Applicant was successful before Commissioner Murrell on both legal and merits grounds.

The Court orders that:
1. The Respondent, Hunters Hill Council, pay the Applicant's costs in these proceedings.

Orders