Aspect North v Lismore City Council - [2001] NSWLEC 288

Land and Environment Court

of New South Wales

CITATION: Aspect North v Lismore City Council [2001] NSWLEC 288

PARTIES:
APPLICANT
Aspect North
RESPONDENT
Lismore City Council

FILE NUMBER(S): 10325 of 2001

CORAM: Cowdroy J

KEY ISSUES: Costs :- discontinuance

LEGISLATION CITED: Land and Environment Court Practice Direction 1993 para 10
Land and Environment Court Rules 1996 Pt 11 r 5(1)

CASES CITED: David Crane and Associates Pty Limited v Kogarah Council [1998] NSWLEC 121;
Duncan v Moore (2000) 107 LGERA 430;
Hayden Theatres Pty Limited v Penrith City Council (1999) 105 LGERA 230;
Menangle Sand & Soil Pty Limited v Wingecarribee Shire Council (2000) 108 LGERA 209;
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622

DATES OF HEARING: 7/12/01

DATE OF JUDGMENT:
12/14/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Webster (Barriser)
SOLICITORS
Stacks
RESPONDENT
Mr J Kildea (Barrister)
SOLICITORS
Walters Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10325 of 2001
CORAM: Cowdroy J
DECISION DATE: 14/12/01

Aspect North

Lismore City Council

Respondent

JUDGMENT

1. By Notice of Motion filed on 12 November 2001 the respondent (“the council”) seeks an order from the Court that the applicant pay the council’s costs of the proceedings.

Facts

2. By application class one (“the appeal”) filed on 12 June 2001 the applicant appealed against the council’s refusal of consent to development application 99/93 (“the application”) determined on 13 February 2001. The application was made in respect of a rural landsharing multiple occupancy consisting of 12 proposed dwellings along with 3 existing dwellings on land known as Lot 2 in DP 250624 or 30 Hensen Road, Nimbin (“the site”).

3. Clause 20 of the North Coast Regional Environmental Plan (“the REP”) required the council to prepare a rural land release strategy and have the strategy approved by the Director General of the Department of Urban Affairs and Planning (“DUAP”) before a Local Environmental Plan (“LEP”) could be prepared to allow for rural residential development. On 12 December 2000 the council resolved to adopt a draft Rural Housing Strategy (“the strategy”) which was intended to become an amendment to the LEP. The strategy was to operate in conjunction with State Environmental Planning Policy 15 (“SEPP 15”).

4. On 13 February 2001 the council refused the application because the proposed development was not in a suitable area as required by the strategy and because of inadequate road infrastructure. Consequently, the applicant initiated the appeal.

5. On 29 May 2001 a Statement of Issues was served on the applicant. Such statement listed 23 issues to be determined by the Court on the appeal. The proceedings were set down for hearing on 4 June 2001 for a period of three days commencing on 26 September 2001.

6. On 10 July 2001 the council resolved to incorporate suggestions made by DUAP to the strategy and to send the strategy to the Director General for further consideration 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: [2001] NSWLEC 288
Decision Date: 12/14/2001

CaseChat Overview and Summary

Aspect North sought to appeal the Lismore City Council’s refusal to grant consent to a development application for a rural landsharing multiple occupancy on a site in Nimbin. The council opposed the appeal and sought an order that the applicant pay the council’s costs of the proceedings. The key issue before the Court was whether the council was entitled to an order for costs after the applicant discontinued the proceedings. The Court held that the council was entitled to an order for costs, but the amount should be reduced to reflect the council’s conduct in expanding the issues in a manner which could not have been anticipated when the appeal was lodged. The Court ordered that the applicant pay 50% of the council’s costs and the costs of the motion. This case demonstrates that while a party who discontinues proceedings may be liable to pay the costs of the other party, the Court will take into account any unreasonable conduct by the other party which may have contributed to the discontinuance. The Court will also consider whether any supervening events beyond the control of the parties have occurred which may have contributed to the discontinuance.

Orders