Beaton v Leichhardt Municipal Council - [2002] NSWLEC 98

Land and Environment Court

of New South Wales

CITATION: Beaton v Leichhardt Municipal Council [2002] NSWLEC 98

PARTIES:
APPLICANT:
Mark Beaton
RESPONDENT:
Leichhardt Council

FILE NUMBER(S): 10159 of 2001

CORAM: Lloyd J

KEY ISSUES: Costs :- in class 1 - discontinuance - reasonable conduct in the circumstances - no order as to costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 82A
Land and Environment Court Rules 1996 Pt 11 r 5

CASES CITED: Aspect North v Lismore City Council [2001] NSWLEC 288;
Bennette v Byron City Council (2001) 116 LGERA 235;
Kentgreen Dural Pty Ltd v Hornsby Shire Council (1999) 103 LGERA 219;
Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245;
McDonald Industries Limited v Sydney City Council (1980) 43 LGRA 428;
Menangle Sand & Soil Pty Ltd v Wingecarribee Shire Council (2000) 108 LGERA 209;
Outdoor Australia Pty Limited v Auburn Council (1996) 89 LGERA 365;
Rio Pioneer Gravel Co Pty Limited v Warringah Shire Council (1969) 17 LGRA 153

DATES OF HEARING: 19/11/2001 and 28/02/2002

EX TEMPORE
JUDGMENT DATE :
02/28/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Fraser (barrister)
SOLICITORS:
Surry Partners
RESPONDENT:
Mr A D Simpson
SOLICITORS:
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No.: 10159 of 2001
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 28 February 2002

Mark Beaton

Applicant

Leichhardt Municipal Council

Respondent

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The respondent, Leichhardt Municipal Council (“the council”), applies by notice of motion for an order that the applicant pay its costs of an appeal brought by the applicant against the deemed refusal of a development application to carry out alterations and additions to a dwelling house. The appeal was subsequently amended to an appeal against the subsequent refusal of the council to consent to the development application.

2. The appeal had been set down for hearing over the three days commencing on 17 September 2001 but was discontinued by the applicant by the filing of a notice of discontinuance on 7 August 2001.

3. It has been the long-standing practice of the Court to make no order for costs in planning or building appeals unless the circumstances are exceptional. That practice is described in cl 10 of the Land and Environment Court Practice Direction 1993. That clause, however, is merely a restatement of the manner in which the judicial discretion as to costs has been exercised in planning and building appeals not only in this Court but in its predecessors, the Local Government Appeals Tribunal and the Land and Valuation Court of New South Wales: see Rio Pioneer Gravel Co Pty Limited v Warringah Shire Council (1969) 17 LGRA 153 at 174, McDonald Industries Limited v Sydney City Council (1980) 43 LGRA 428 at 445 and Outdoor Australia Pty Limited v Auburn Council (1996) 89 LGERA 365.

4. The present application for costs is made pursuant to the Land and Environment Court Rules 1996 Pt 11 r…

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 98
Decision Date: 02/28/2002

CaseChat Overview and Summary

In this case, Mark Beaton appealed against the Leichhardt Municipal Council's refusal to approve a development application concerning alterations and additions to a dwelling house. The council sought an order for costs under the Land and Environment Court Rules 1996, based on Beaton's discontinuance of the appeal without consent. The primary legal issue was whether the discontinuance was reasonable and timely, warranting a departure from the Court's established practice of not awarding costs unless exceptional circumstances exist.

The Court examined the circumstances surrounding the discontinuance. Beaton had lodged a development application in June 2000, which was eventually refused in February 2001. After Beaton appealed, the council reviewed the application under s 82A of the Environmental Planning and Assessment Act 1979, leading to a new ground of refusal regarding privacy concerns. This new issue required Beaton to redesign the floor plans, prompting him to discontinue the appeal eight weeks before the hearing. The council had not filed a statement of issues, which would have clarified the grounds for refusal.

Lloyd J concluded that Beaton's discontinuance was reasonable and timely, considering the belated and entirely new ground of refusal, which necessitated a complete redesign. Additionally, the council's failure to file a statement of issues further supported the reasonableness of Beaton's decision. Therefore, Lloyd J dismissed the council's application for costs, ruling that Beaton's conduct in discontinuing the appeal was justified under the circumstances.

Orders