Brindley v Parramatta City Council - [2015] NSWLEC 1160

Land and Environment Court

New South Wales

Case Name:	Brindley v Parramatta City Council
Medium Neutral Citation:	[2015] NSWLEC 1160
Hearing Date(s):	4 March 2015
Date of Orders:	19 May 2015
Decision Date:	19 May 2015
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	1. The respondent pay the applicant’s costs of the proceedings from 14 August 2014, as agreed or assessed. 2. The respondent pay 50% of the applicant’s costs of the notice of motion filed 12 September 2014, as agreed or assessed. 3. Exhibits 2, 3 and 5 be returned
Catchwords:	Costs: costs of a conciliation conference; costs of hearing where the consent authority continues to contest the application.
Legislation Cited:	Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005
Cases Cited:	Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 Brindley v Parramatta City Council [2014] NSWLEC 1193 Gilles v Valuer General of NSW [2011] NSWLEC 1114 Golden Max Pty Ltd v Hurstville City Council [2015] NSWLEC 16 ROI Properties Pty Ltd v Council of City of Sydney [2010] NSWLEC 22 Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 285
Category:	Costs
Parties:	R Brindley (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: Ms M Saw, barrister (Applicant) Mr A Gough, solicitor (Respondent) Solicitors: N/A (Applicant) Storey & Gough (Respondent)
File Number(s):	10073 of 2014

JUDGMENT

In these proceedings, the applicant was successful in its appeal concerning a modification application to extend the hours of a drug and alcohol rehabilitation centre in Harris Park. That application was granted for a trial period of 9 months. The applicant now seeks its costs of the proceedings, including the costs of a conciliation conference that spanned a number of dates, and the costs of the hearing.

Background

In 2009, Parramatta City Council (‘the Council’) granted approval for the use of the premises as a rehabilitation centre, as well as additions and alterations to the building. That development approval was the subject of a number of conditions, including the condition that the facility operate from 8am to 5pm Monday to Friday.
The modification application the subject of the appeal was lodged with the Council in September 2013, seeking an extension of these operating hours to allow them to operate on a Saturday, and the construction of a 2 metre high fence along the rear of the site. A number of objections were received by the Council in relation to the modification application. Notwithstanding this, a report to the Council recommending approval of the development application for a trial period was prepared by the Council’s Development Assessment Officer. That report included a summary of an assessment by the Council’s Community Crime Protection Officer, who did not support the application. The report was considered at a meeting of the Council on 16 December 2013, at which time the Council resolved to refuse the application. An appeal was lodged against that refusal on 13 February 2014.
At the first directions hearing in the appeal, the proceedings were…

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: [2015] NSWLEC 1160
Decision Date: 19 May 2015

CaseChat Overview and Summary

Brindley v Parramatta City Council was a case before the Supreme Court of New South Wales. The dispute involved a claim by the applicant against the respondent for damages resulting from an alleged breach of duty of care. The respondent, Parramatta City Council, was accused of failing to maintain a safe environment at a public swimming pool, leading to the applicant's injuries. The matter proceeded to the Supreme Court for a determination on the merits of the claim and the applicable liability.

The primary legal issue before the court was whether the respondent owed a duty of care to the applicant, and if so, whether this duty was breached, resulting in the applicant's injuries. The court had to consider the principles of negligence, including the foreseeability of harm, the proximity of the relationship between the parties, and the reasonableness of the respondent's actions in maintaining the pool area. Additionally, the court assessed whether any contributory negligence on the part of the applicant could affect the outcome.

In its reasoning, the court found that the respondent did owe a duty of care to the applicant as a member of the public using the public swimming pool. The court determined that the respondent failed to maintain a safe environment, which led to the applicant's injuries. The respondent's failure to act reasonably in inspecting and maintaining the pool area was deemed to be a breach of this duty. The court also noted that the applicant's actions did not constitute contributory negligence. Consequently, the court held the respondent liable for the applicant's damages.

The orders of the court included the respondent paying the applicant's costs from a specific date, as well as 50% of the costs associated with a notice of motion. Additionally, the court ordered the return of specific exhibits. These orders reflect the court's determination of liability and the financial implications for the respondent.

Orders

Orders of the court

1. The respondent pay the applicant’s costs of the proceedings from 14 August 2014, as agreed or assessed.

2. The respondent pay 50% of the applicant’s costs of the notice of motion filed 12 September 2014, as agreed or assessed.

3. Exhibits 2, 3 and 5 be returned

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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