Bailey v Oberon Shire Council - [2007] NSWLEC 273

Land and Environment Court

of New South Wales

CITATION: Bailey v Oberon Shire Council [2007] NSWLEC 273

PARTIES: APPLICANT
Daniel Bailey
RESPONDENT
Oberon Shire Council

FILE NUMBER(S): 10630 of 2006

CORAM: Pain J

KEY ISSUES: Costs :- exercise of Court's discretion to award costs in Class 1 proceedings - whether fair and reasonable to order costs against Council - whether Council's defence of proceedings in dereliction of Council's duty as a statutory body and not on a rational basis - whether failure by the Council to undertake independent analysis of noise and dust issues - whether Council acted so unreasonably as to justify an award of costs - whether Council, properly advised, should have known that it had no or very poor prospects of success - non-compliance with paragraph 10 of Practice Direction 1993 (application for costs should be made within 14 days of judgment).

LEGISLATION CITED: Land and Environment Court Act 1979 s56A
Land and Environment Court Rules 1996 Pt 16 r 4(2)
Oberon Development Control Plan 2001
Oberon Local Environmental Plan 1998

CASES CITED: ACM Landmark Pty Ltd v Cessnock City Council [2006];
NSWLEC 256;
Aldi Food Pty Ltd v Holroyd City Council (2005) 142 LGERA 141;
Bailey v Oberon Shire Council [2006] NSWLEC 815;
Grant v Kiama Municipal Council [2006] NSWLEC 70;
Telstra Corporation Ltd v Hornsby Shire Council (2006) 148 LGERA 124

DATES OF HEARING: 30 April 2007

DATE OF JUDGMENT:
21 May 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr C McEwen SC
SOLICITOR
Wilshire Webb Staunton Beattie
RESPONDENT
Mr M Baird
SOLICITOR
McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 May 2007

10630 of 2006 Bailey v Oberon Shire Council
JUDGMENT ON COSTS

1 Her Honour: In Bailey v Oberon Shire Council [2006] NSWLEC 815 Moore C upheld the Applicant’s appeal in these Class 1 proceedings and granted development consent subject to numerous development consent conditions. His ex tempore judgment was delivered on 14 December 2006 and a written judgment was provided to the parties on or about 12 January 2007.

2 The Applicant has filed a Notice of Motion seeking his costs of the proceedings. Costs sought include legal costs, the costs of the court appointed planning expert and the noise expert retained by the Applicant, Mr Cooper. The Council opposes the application. An affidavit of Mr Staunton, solicitor, dated 30 March 2007 was filed which annexed a number of documents referred to by both parties in argument. His affidavit sworn 18 April 2007 was also relied on.

3 Part 16 r 4(2) of the Land and Environment Court Rules 1996 (the Court Rules) provides:

No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.

4 Clause 10 of the Practice Direction 1993 (as then in force) refers to Pt 16 r 4 of the…

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: [2007] NSWLEC 273
Decision Date: 21 May 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Court addressed an application for costs brought by Daniel Bailey against Oberon Shire Council. The Court was asked to decide whether the Council should be ordered to pay the costs of the proceedings, which were for a development appeal under Class 1. The central issues revolved around whether the Council's defence was rational, whether the Council had poor prospects of success, and whether the Council acted unreasonably or in dereliction of its duty. The Court found that while the Council had not acted unreasonably or in dereliction of its duty, it had failed to conduct its own independent analysis of the noise and dust issues, and had acted inconsistently by approving similar developments in the vicinity. The Court held that it was fair and reasonable for the Council to pay some, but not all, of the Applicant's costs. The Court ordered the Council to pay the Applicant's costs from the date of the court-appointed planning expert's report and also the costs of the Notice of Motion.

Orders