Belgiorno-Nettis v Mosman Municipal Council

[2004] NSWLEC 731

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Belgiorno-Nettis v Mosman Municipal Council [2004]  NSWLEC 731

PARTIES:
Guido and Michelle Belgiorno-Nettis (Appl)
Mosman Municipal Council (Resp)

CASE NUMBER:     11061 of       2004

CATCH WORDS:     Costs

LEGISLATION CITED:

CORAM:       McClellan CJ

DATES OF HEARING:       24 December 2004

DECISION DATE:    24/12/2004

LEGAL REPRESENTATIVES

M Fraser (Appl)
Church & Grace (Solicitors - Appl)

S Griffiths (Resp)
Pike Pike & Fenwick (Solicitors - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

FRIDAY, 24 DECEMBER 2004

11061/04BELIGIORNO-NETTIS v MOSMAN MUNICIPAL COUNCIL

JUDGMENT

1. HIS HONOUR:  This matter has been referred to me to consider whether I will concur with the order for costs proposed by Commissioner Murrell.

2. The Commissioner has decided that an order for costs should be made in favour of the applicant for the reasons set out in her judgment. Critical to the Commissioner's findings is the fact that, although the application was refused by the Council for the reason that it was "beyond the scope of the previous applications" there was no rational basis for this conclusion. The application was recommended for approval by the relevant council officer and accordingly, in the absence of any rational explanation for Council's decision, the applicant has been put to unnecessary expense in bringing the appeal.

3. Although the appeal has been resolved by the making of consent orders I am satisfied in these circumstances, although the usual position that an order for costs will not be made in class 1 proceedings, it would be both fair and reasonable in the present case. Just as there is a responsibility upon applicants to ensure that applications which they make to Council are in proper form and capable of approval, the responsibility falls upon councils to ensure that when rejecting a proposal its decision has a rational basis. If this obligation is ignored applicants will be put to unnecessary expense in bringing appeals and it will be appropriate for the Court to make orders for costs.

4. Accordingly, I concur in the Commissioner's decision.

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