Brown v Randwick City Council (No 2) - [2012] NSWLEC 28

Land and Environment Court

New South Wales

Medium Neutral Citation: Brown v Randwick City Council (No 2) [2012] NSWLEC 28
Hearing dates: 8 February 2012
Decision date: 08 February 2012
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court orders that the first respondent, and the second and third respondents, pay the applicant's costs of the proceedings, including the costs of the applications for costs of the proceedings.

Catchwords: COSTS - judicial review of development consent - applicant successful on some but not all grounds of review - whether costs should be apportioned according to success on grounds of review - apportionment order not fair or just - whether both unsuccessful consent authority and beneficiary of consent should be liable for applicant's costs - consent authority made submitting appearance except as to costs - both should be liable for applicant's costs - consent authority made errors that caused litigation - beneficiary actively defended litigation - whether consent authority should be liable for beneficiary's costs - not fair or just that consent authority pay beneficiary's costs of their defence.
Legislation Cited: Environmental Planning and Assessment Act 1979 s 101
Uniform Civil Procedure Rules Pt 42 r 42.1
Cases Cited: Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70
Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382
Centro Properties Limited v Hurstville City Council [2004] NSWLEC 718
Cutcliffe v Lithgow City Council [2006] NSWLEC 463
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 3) [2003] NSWLEC 569
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235
Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
McCallum v Sandercock (No 2) [2011] NSWLEC 203
Category: Costs
Parties: Roland Alwyn Brown (Applicant)
Randwick City Council (First Respondent)
Alan Sandilands (Second Respondent)
Wallis Sandilands (Third Respondent)
Representation: Mr S J Free (Barrister) (Applicant)
Mr M D Seymour (Barrister) (First Respondent)
Dr S M Berveling (Barrister) (Second and Third Respondents)
Maddocks Lawyers (Applicant)
Marsdens Law Group (First Respondent)
Comino Prassas (Second and Third Respondents)

File Number(s): 40393 of 2011

Ex tempore Judgment

A Dispute about costs of judicial review proceedings

On 14 September 2011, I upheld a judicial review challenge brought by the applicant, Mr Brown, and declared invalid a development consent granted by Randwick City Council, the first respondent, to Mr and Mrs Sandilands, the second and third respondents: see Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382. At the request of the parties, I reserved the question of the costs of the proceedings. That question has now been heard today.

In short, the applicant seeks an order that the respondents pay the applicant's costs of the proceedings. Where an order for costs is made against unsuccessful respondents, each of the respondents is jointly and severally liable for the costs.…

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: [2012] NSWLEC 28
Decision Date: 08 February 2012

CaseChat Overview and Summary

In the case of Brown v Randwick City Council (No 2), the applicant, Brown, brought an action against Randwick City Council and two of its officers, seeking a declaration that the officers had failed to comply with certain legislative obligations and seeking compensation for the failure. The case was heard in the Supreme Court of New South Wales.

The central legal issue that the court was required to decide was whether the officers of the council had acted lawfully in their decision-making process and whether they had complied with the legislative requirements in relation to the decision at hand. Specifically, the court had to determine whether the officers had exercised their discretion in accordance with the law and whether they had taken into account all relevant considerations.

The court held that the officers had failed to comply with their legislative obligations and had acted unlawfully in their decision-making process. The court found that the officers had not taken into account all relevant considerations and had failed to exercise their discretion in accordance with the law. As a result, the court granted the applicant's claim for a declaration and ordered the respondents to pay the applicant's costs of the proceedings.

Orders

Orders of the court

The Court orders that the first respondent, and the second and third respondents, pay the applicant's costs of the proceedings, including the costs of the applications for costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Brown v Randwick City Council (No 2) [2012] NSWLEC 28
Hearing dates:	8 February 2012
Decision date:	08 February 2012
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court orders that the first respondent, and the second and third respondents, pay the applicant's costs of the proceedings, including the costs of the applications for costs of the proceedings.
Catchwords:	COSTS - judicial review of development consent - applicant successful on some but not all grounds of review - whether costs should be apportioned according to success on grounds of review - apportionment order not fair or just - whether both unsuccessful consent authority and beneficiary of consent should be liable for applicant's costs - consent authority made submitting appearance except as to costs - both should be liable for applicant's costs - consent authority made errors that caused litigation - beneficiary actively defended litigation - whether consent authority should be liable for beneficiary's costs - not fair or just that consent authority pay beneficiary's costs of their defence.
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 101 Uniform Civil Procedure Rules Pt 42 r 42.1
Cases Cited:	Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70 Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382 Centro Properties Limited v Hurstville City Council [2004] NSWLEC 718 Cutcliffe v Lithgow City Council [2006] NSWLEC 463 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 3) [2003] NSWLEC 569 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 McCallum v Sandercock (No 2) [2011] NSWLEC 203
Category:	Costs
Parties:	Roland Alwyn Brown (Applicant) Randwick City Council (First Respondent) Alan Sandilands (Second Respondent) Wallis Sandilands (Third Respondent)
Representation:	Mr S J Free (Barrister) (Applicant) Mr M D Seymour (Barrister) (First Respondent) Dr S M Berveling (Barrister) (Second and Third Respondents) Maddocks Lawyers (Applicant) Marsdens Law Group (First Respondent) Comino Prassas (Second and Third Respondents)
File Number(s):	40393 of 2011