Bowen v Willoughby City Council - [2000] NSWLEC 197

Land and Environment Court

of New South Wales

CITATION: Bowen v Willoughby City Council [2000] NSWLEC 197

PARTIES:
APPLICANT:
Bowen
RESPONDENT:
Willoughby City Council

FILE NUMBER(S): 10064 of 2000

CORAM: Bignold J

KEY ISSUES: Costs :- Question of law raised by Council for preliminary determination in pending class 1 proceedings. Whether exceptional circumstances demonstrated to justify a cost order.

LEGISLATION CITED:

CASES CITED: Bell v Shellharbour Municipal Council (1993) LGERA 429;
Cadonia Pty Ltd v Leichhardt Council (unreported 5 August 1994);
Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103 Frisoli v Leichhardt Council (1996) NSWLEC 157;
MacDonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211;
McKay v North Sydney Council (2000) 107 LGERA 203;
Nahum v North Sydney Council (1994) 83LGERA 2000;
North Sydney Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222;
Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) NSWLEC 245;
Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114

DATES OF HEARING: 08/06/00

DATE OF JUDGMENT:
08/31/2000

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Tomasetti, Barrister
SOLICITORS
Corrs Chambers Westgarth
RESPONDENT:
Mr J Underwood, Barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No . 10064 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 31 August 2000

D AND L BOWEN

Applicants

WILLOUGHBY CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

1. The Applicants seek an order for costs in relation to the hearing of the Respondent’s Motion filed in pending class 1 proceedings seeking the determination by the Court as a preliminary matter of two questions of law.

2. Both questions were determined adversely to the Respondent (the Council) in my judgment delivered on 6 April 2000 (now reported in 108LGERA 149) to which reference should be made.

3. The Applicants, recognising the Court’s established practice not to order the payment of costs in planning appeals (including those that involve the determination of preliminary questions of law) unless the circumstances are exceptional, found their claim to costs on three bases—
(i.) the Council’s contention on the first question of law that the foreshore building line provision contained in the Willoughby Local Environmental Plan 1995 cl 16 (the LEP) effected an absolute prohibition to the carrying out of development rather than operating as a development standard “flew in the face” of settled authority;
(ii.) the Council’s contention on the second question of law based upon the operation of the EP&A Act s 80(2) was misconceived and was pressed at the hearing despite the Applicants’ prior advice to Council’s Solicitors that the point of law lacked merit and if pressed, would invite a costs application by the Applicants; and
(iii.) the Applicants, in making their development application, had placed reliance upon the Council’s public and private statements made on various occasions in the period 1995 - 1999 that the foreshore building line controls imposed by 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: [2000] NSWLEC 197
Decision Date: 08/31/2000

CaseChat Overview and Summary

In the case of Bowen v Willoughby City Council, the applicant, Mr. Bowen, sought an order for costs against the Willoughby City Council in relation to a hearing in pending class 1 proceedings. The Council had filed a motion seeking the determination of two questions of law as a preliminary matter. The Land and Environment Court, presided over by Bignold J, was tasked with deciding whether exceptional circumstances existed to justify a cost order against the Council.

The key legal issue before the Court was whether the Council had demonstrated exceptional circumstances to warrant an order for costs against the applicant. The applicant argued that the Council’s contentions on the two questions of law were without merit and amounted to misconduct in the litigation process. The Council, on the other hand, contended that their arguments were arguable and did not warrant a costs order.

Bignold J found that while the Council’s contention on the first question of law was not against settled authority, the second question raised by the Council was indeed obviously untenable. The Court held that exceptional circumstances existed due to the Council’s argument on the second question being contrary to quite apparent answers and contrary to precedent. The Court cited Outdoor Australia Pty Ltd v Auburn Council for the proposition that costs could be awarded against a party who raises an obviously untenable question of law for preliminary determination. Consequently, the Court ordered that the Council pay the applicant’s costs incurred in respect of the second question of law, limited to the sum agreed or, failing agreement, as assessed.

The final orders of the Court were that the Council was to pay the applicant’s costs incurred in respect of the second question of law, but no order was made regarding the hearing of the applicant’s motion for costs due to the parties' equal successes and failures.

Orders