Byron Shire Council v MacAdam - [2001] NSWLEC 232

Reported Decision: 116 LGERA 418

Land and Environment Court

of New South Wales

CITATION: Byron Shire Council v MacAdam [2001] NSWLEC 232

PARTIES:
APPLICANT
Byron Shire Council
RESPONDENT
Nanette Marion MacAdam

FILE NUMBER(S): 40125 of 2000

CORAM: Talbot J

KEY ISSUES: Costs :- proceedings discontinued by consent following determination of class one proceedings which remedied the continuation of the breach of the law.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 82A
Land and Environment Court Act 1979 s 69
Land and Environment Court Rules 1996 Pt 15 r 7

CASES CITED: Beilby v Viney Pty Ltd (2001) 113 LGERA 450;
Jan Yee Australia Pty Ltd v Woollahra Council and Anor (Bignold J, NSWLEC, 26 March 1997, unreported);
Oshlack v Richmond River Council (1998) 193 CLR 72

DATES OF HEARING: 11/09/2001

DATE OF JUDGMENT:
10/02/2001

LEGAL REPRESENTATIVES:

APPLICANT
Ms L.M. Byrne (Barrister)
SOLICITORS
Elliot & Sochacki
RESPONDENT
Mr A.I. MacAdam (Agent)
SOLICITORS
N/A

JUDGMENT:

IN THE LAND AND Matter No. 40125 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 2 October 2001

Byron Shire Council

Applicant

Nanette Marion MacAdam

Respondent

REASONS FOR JUDGMENT

1. Following the discontinuance of these proceedings by consent, the applicant has moved the Court for orders that the respondent pays the applicant’s costs. Ms Byrne appears for the Byron Shire Council (“the council”). The respondent is represented by her agent, Alistair Ian MacAdam, who is her brother, a Queensland barrister not admitted to practice in New South Wales.

2. On 17 August 2000 the applicant filed a class 4 application. The application was subsequently amended by the filing of an amended class 4 application on 10 November 2000. The applicant requested the Court to make orders restraining the respondent from using the premises, known as Lot 41 DP 714410, 6 Julian Rocks Drive, Byron Bay (“the premises”), for the purposes of a hostel or a bed and breakfast establishment. It also sought interlocutory relief by way of an order restraining the respondent from letting out the premises on a temporary basis and advertising it as being available as a “homestay”.

3. On 15 September 2000 the Court made ex parte interlocutory orders by way of injunction.

4. On 28 November 2000 by consent further interlocutory orders were made by setting aside the orders made on 15 September 2000 and substituting new orders restraining the respondent from letting or using the premises or advertising the premises as available for use as a bed and breakfast facility, a hostel or homestay. Costs were reserved.

5. On 6 April 2001 the Court upheld a class 1 appeal by the respondent against the refusal of a development application by the council. The applicant was seeking consent to use the premises as a bed and breakfast establishment.

6. On 10 July 2001 the parties filed short minutes of orders seeking, inter alia, to discontinue the class 4 proceedings and to discharge the interlocutory orders of the 28 November 2000, except…

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: [2001] NSWLEC 232
Decision Date: 10/02/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with a case brought by the Byron Shire Council against Nanette Marion MacAdam concerning the use of property at Lot 41 DP 714410, 6 Julian Rocks Drive, Byron Bay. The council sought to restrain MacAdam from using the premises as a hostel or bed and breakfast establishment without consent. The case was initiated with a class 4 application, which was later amended, and resulted in interim orders being made to restrain the use of the property. These orders were subsequently varied and partially discharged by consent.

The primary legal issues revolved around the costs incurred by the council in these proceedings, particularly whether the council was entitled to an order for costs against MacAdam following the discontinuance of the proceedings by consent. The council argued that it was entitled to costs as MacAdam had obtained development consent for the use of the premises, thereby satisfying the council's claim. MacAdam, on the other hand, contended that the council's conduct during the proceedings was such that it was not entitled to costs.

The Court considered the general principle that costs typically follow the event, meaning that the successful party in the proceedings should bear the costs. However, the Court also noted the possibility of departing from this principle if the successful party's conduct was such that it effectively invited the litigation, unnecessarily protracted the proceedings, or otherwise disentitled it to the benefit of a costs order. The Court examined the conduct of both parties, taking into account the circumstances leading to the discontinuance of the proceedings. It found that the council was justified in commencing and maintaining the proceedings and that MacAdam's success in the class 1 appeal did not necessarily indicate misconduct by the council. The Court concluded that the council was entitled to an order for costs as MacAdam had satisfied the council's claim by obtaining the necessary development consent.

The Court ordered that Nanette Marion MacAdam pay the Byron Shire Council's costs of the proceedings, including the hearing on 11 September 2001. The exhibits were to be retained.

Orders