Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd (No 2)

[2025] NSWLEC 86

Land and Environment Court

New South Wales

Medium Neutral Citation:

Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd (No 2) [2025] NSWLEC 86

Hearing dates:

14 August 2025

Date of orders:

14 August 2025

Decision date:

14 August 2025

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

(1) Dismiss the respondent’s notice of motion filed on 21 May 2025.

(2) Make no order as to costs of the notice of motion with the intention that each party pays their own costs.

Catchwords:

COSTS – costs follow the event rule – partial success on issues – whether apportionment based on partial success – factors influencing Court’s exercise of discretion – whether unsuccessful issues clearly dominant, separable or discrete from successful issues – whether unsuccessful issues involved considerable hearing time – whether such time can be identified or realistically estimated – whether unsuccessful issues lacked real merit – whether applicant behaved improperly or unreasonably in conduct of proceedings – no apportionment of costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98(1)

Land and Environment Court Act 1979 (NSW), s 56A

Local Government Act 1993 (NSW), s 49

Canterbury-Bankstown Local Environmental Plan 2023, cll 4.1A, 4.1AA, 4.4, 4.5

Uniform Civil Procedure Rules 2005, rr 36.16(3A), 42.1

Cases Cited:

ABC Insurance Pty Ltd v The Law Society of New South Wales [2025] NSWCA 182

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41

Centro Properties Limited v Hurstville City Council & Anor [2004] NSWLEC 718

De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207; [1997] HCA 14

Dickson v Petrie(No 2) [2025] NSWCA 176

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Elite Protective Personnel Pty Ltd & Anor v Thomas Salmon (No 2) [2007] NSWCA 373

James & Ors v Surf Road Nominees Pty Limited & Ors (No 2) [2005] NSWCA 296

John Conrad Hansen trading as Derrawee Pastoral Company v Monterey (Coolah) Pty Limited [2012] NSWSC 1383

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Majak v Rose (No 5) [2017] NSWCA 238

McCallum v Sandercock (No 2) [2011] NSWLEC 203

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306

State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283

Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Willoughby City Council v Blanc Black Projects Pty Limited (No 2) [2023] NSWLEC 144

Category:

Costs

Parties:

Canterbury-Bankstown Council (Appellant)
Hamptons Property Services Pty Ltd (Respondent)

Representation:

Counsel:
P Bambagiotti (Appellant)
P Tomasetti SC (Respondent)

Solicitors:
Mark Francis Bonanno (Appellant)
Corrs Chambers Westgarth (Respondent)

File Number(s):

2024/468248

Publication restriction:

NIL

JUDGMENT

1. Hamptons Property Services Pty Ltd (Hamptons) seeks to vary the order for costs I made on 8 May 2025 in disposing of the appeal by Canterbury-Bankstown Council (the Council) under s 56A(1) of the Land and Environment Court Act 1979 (NSW) (Court Act): Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41. Hamptons filed a notice of motion for the variation of the order on 21 May 2025, within 14 days after the order was entered. Under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (UCPR), the Court may determine the matter and vary the order as if it had not been entered.

2. The appeal by the Council was against the decision and orders of a Commissioner to grant development consent to a development application lodged by Hamptons to carry out residential development and subdivision at 30 Trevenar Street, Ashbury. An appeal under s 56A(1) of the Court Act is limited to questions of law. The Council raised four grounds of appeal claiming the Commissioner erred on questions of law regarding three matters:

1. the power of the Court to compel the Council to accept the dedication of one of the resulting lots of the subdivision as a public reserve (ground 1);

2. the operation of two clauses of Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP), cl 4.1AA and cl 4.1A, fixing minimum lot size development standards for the subdivision of land (grounds 2 and 3); and

3. the operation of two clauses of CBLEP, cl 4.4 and cl 4.5, fixing development standards for floor space ratio (ground 4).

3. I determined that the Council had not established grounds 1 and 4, but had established grounds 2 and 3. The errors the Commissioner made in the interpretation and application of cl 4.1AA and cl 4.1A of CBLEP were material and vitiated the Commissioner’s decision. Accordingly, I upheld the appeal and set aside the decision and orders of the Commissioner. In accordance with the usual order that costs follow the event (see UCPR r 42.1), I ordered Hamptons to pay the Council’s costs of the appeal.

4. Hamptons seeks for that costs order to be varied to reflect the fact that the Council only succeeded on two related grounds (grounds 2 and 3) and not on the other two grounds (grounds 1 and 4). On the basis that the Council succeeded on roughly one third of the issues, and was unsuccessful on roughly two thirds of the issues, Hamptons submitted that it should be ordered to pay only 30% of the Council’s costs.

5. Ordinarily, any argument as to the costs order that should be made in disposing of an appeal ought to be made at the hearing of the appeal. All issues in the appeal, including the costs of the appeal, should be dealt with at the one time. There should be no expectation on the part of parties that they can await the outcome of the appeal before arguing the issue of the costs of the appeal.

6. This point was emphasized by the Court of Appeal in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [22]:

“Ordinarily, questions of costs should be raised and addressed at the appeal hearing rather than by parties making separate and subsequent applications: Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [5]-[7]. As this Court said in Fuller v Albert (No 2) [2021] NSWCA 183 at [31]:

‘If [parties] wish to make submissions on costs, they should either do so at the hearing of the appeal, addressing the foreseeable possible outcomes, or in special circumstances seek leave to make costs submissions after the outcome is known.’”

7. The Court of Appeal has recently identified in ABC Insurance Pty Ltd v The Law Society of New South Wales [2025] NSWCA 182 at [11] some of the special circumstances in respect of which leave may be sought to make submissions after the outcome is known. None of these special circumstances were relevant in this appeal.

8. In accordance with this ordinary practice, I asked the parties at the hearing of the appeal to make submissions as to the costs order the Court should make on alternative assumptions of what might be the outcome of the appeal. The parties made the submissions they wished to make in response. Hamptons’ senior counsel accepted that the usual order in a s 56A(1) appeal is that costs follow the event but requested that if the Council’s appeal were to be upheld in a way which was not consistent with the Council’s submissions, Hamptons might be given “an opportunity to read the judgment and see what the position is, and then make submissions on remitter and costs”: Transcript 01/05/2025 at 55.

9. Hamptons said that it believed that by making this statement it “was reserving to itself the right to make submissions on costs once judgment was published”: Respondent’s Written Submissions of 12 July 2025 at [22]. As the authorities to which I have referred make plain, a party cannot reserve to itself a right to make submissions on costs once a judgment is delivered. The occasion to make submissions on costs is the hearing of the appeal, especially when the Court asks parties to make submissions on costs at the hearing.

10. The fact that a party fails to make, when it had the opportunity to do so, all of the submissions as to costs that it later says it would wish to make is ordinarily not a reason to set aside or vary the costs order the Court does make. There is a public interest in maintaining the finality of litigation. That public interest requires that the power in UCPR r 36.16 to set aside or vary an order be exercised “sparingly and with caution, having due regard to the importance of the finality of litigation”: Majak v Rose (No 5) [2017] NSWCA 238 at [13]. Caution is especially called for where the variation sought would have the practical effect of the re-opening the proceedings to enable a significant rehearing of an issue: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303, 308-311; [1993] HCA 6. As Mason CJ said in the last-mentioned case at 303:

“However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.”

11. Similarly, the High Court stated in De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215; [1997] HCA 14:

“The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded ‘on a misapprehension as to the facts or the law’, where ‘there is some matter calling for review’ or where ‘the interests of justice so require’. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required ‘without fault on his part’, ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice.”

12. The Court of Appeal explained in Majak v Rose (No 5) at [12] the purpose of the power in UCPR r 36.16:

“The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the ‘overriding purpose’ of facilitating the ‘just, quick and cheap resolution of the real issues’ between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.”

13. Exercise of the Court’s power under UCPR r 36.16 to set aside or vary an order ordinarily requires the party seeking reopening of the appeal to show that the Court proceeded on a misapprehension as to the facts or the law; there is some matter calling for review; or the interests of justice so require: Autodesk Inc v Dyason (No 2) at 302; De L v Director-General, NSW Department of Community Services (No 2) at 215; Majak v Rose (No 5) at [12]-[19]; Dickson v Petrie(No 2) [2025] NSWCA 176 at [7].

14. Hamptons did not suggest that either of the first two circumstances applied. The Court, in making the usual order that costs follow the event, was not under a misapprehension as to the facts or the law, and there was no matter calling for review of the Court’s decision and order as to costs. Hamptons did, however, submit that the interests of justice required reopening of the costs order. Hamptons said it had misunderstood that it would be given an opportunity to make submissions as to costs after judgment had been delivered.

15. As I have noted, both parties were given an opportunity at the hearing of the appeal to make whatever submissions they wished to make on the costs order the Court should make, addressing the foreseeable possible outcomes of the appeal. A party’s failure to do so is attributable to the fault of that party, not the Court. This is a factor tending against exercising the power to reopen the appeal to allow further argument on the issue of costs.

16. Nevertheless, as the High Court recognised in De L v Director-General, NSW Department of Community Services (No 2) at 215, “accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice.” Whilst Hamptons’ misunderstanding at the hearing of the appeal that it could reserve to itself the right to make submissions as to costs after judgment was delivered might not be regarded as an accident or oversight, I consider that not allowing the reopening of the appeal to provide an opportunity for further argument on the issue of costs will occasion an injustice to Hamptons. Reopening the appeal will not lead to a significant rehearing of the issue of costs. No further evidence is needed. The further submissions the parties wish to make on the issue of costs are confined. The submissions have been reduced to writing with only a brief supplementation by way of oral submissions. The reopening of the appeal will not prejudice the Council. The Council does not oppose the Court re-opening the appeal to allow Hamptons the opportunity to make further submissions on the costs order the Court should make.

17. In these particular circumstances, I will allow the reopening of the appeal to provide the parties with the opportunity for further argument on whether the costs order I made should be varied in the way sought by Hamptons.

18. Hamptons’ argument was that the general rule that costs follow the event should be applied to each ground of appeal. The “event” should be understood as the outcome of each ground, not the outcome of the appeal as a whole. Hamptons referred to the observation of Schmidt J in John Conrad Hansen trading as Derrawee Pastoral Company v Monterey (Coolah) Pty Limited [2012] NSWSC 1383 at [29]:

“Section 98 of the Act gives the power to award costs. It is a discretionary power. Under Part 42.1 of the Rules, the usual order is that costs follow 'the event', although there too reference is made to the discretion to make some other order. It follows that how the Rule operates in a particular case, depends on what 'the event' in question is. This requires consideration to be given to the practical outcome of the proceedings, that is, by reference to who the successful party in the proceedings was, having in mind the matters over which the parties joined issue and who succeeded on them. That is not necessarily the party who has had an order made in their favour in the proceedings.”

19. Hamptons noted that the Council was successful on only one substantive ground (the related grounds 2 and 3) and was unsuccessful on two of the substantive grounds (grounds 1 and 4). The Council should, therefore, only be awarded its costs in relation to the ground on which it was successful and not in relation to the grounds on which it was unsuccessful. This supports an apportionment of 30% of the costs.

20. Hamptons submitted that the grounds on which the Council was unsuccessful (grounds 1 and 4) were clearly separable from the grounds on which the Council was successful (grounds 2 and 3). The resolution of grounds 2 and 3 did not depend on the resolution of grounds 1 and 4.

21. Hamptons submitted that in terms of the parties’ pre-hearing preparation, including written submissions, and the time taken at the hearing, grounds 1 and 4 occupied the bulk of the work and time, compared to grounds 2 and 3.

22. Hamptons submitted that in circumstances where the Council was unsuccessful on grounds 1 and 4, the issues raised by those grounds were clearly dominant and severable and those issues occupied the bulk of the hearing time, it would not be just and reasonable for it to pay all of the Council’s costs. Instead, it should be ordered to pay only 30% of the Council’s costs of the appeal.

23. The Council submitted that the usual order for costs – that costs follow the event – should be made. The expression “follow the event” is generally accepted to refer to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15]. The particular claim in this proceeding is the appeal under s 56A(1) of the Court Act. The appeal is either upheld or dismissed. The disposition of the appeal is the event, not the resolution of each of the grounds of appeal. The Council was successful in the ultimate outcome of the appeal, notwithstanding that the Council did not succeed on all of the grounds of appeal. As Robson J stated in Willoughby City Council v Blanc Black Projects Pty Limited (No 2) [2023] NSWLEC 144 at [18]:

“It is ordinarily not appropriate to deprive a successful party of a portion of the costs of the proceedings on the basis that, although that party was successful in the ultimate outcome of the matter, some of the issues raised failed: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24].”

24. The Council submitted that the basis for an apportionment of costs based on the issues on which an applicant succeeds or fails involves the principle of fairness. The Court would not ordinarily apportion costs unless the respondent can establish that “there is some discrete and easily separable and digestible part of the case upon which it succeeded, and even then, where the element of injustice or unfairness can clearly, and unequivocally, be determined”: Appellant’s Written Submissions of 1 July 2025, [10].

25. The Council submitted that grounds 2 and 3, which the Court upheld, could not be characterised as discrete and easily separable from grounds 1 and 4. The Council noted that the nature of the appeal under s 56A(1) of the Court Act necessarily limited the grounds of appeal to questions of law, not questions of fact; the materials in the appeal book that were considered in the hearing and disposal of the appeal were limited; and the parties’ arguments at the hearing of the appeal took only one day. In these circumstances, the Council submitted that it is not accurate to say that grounds 1 and 4 were clearly dominant and severable from the other grounds of appeal.

26. The Council referred to the statement of Hamptons’ solicitor, Mr Newman, in paragraph 16(a) of his affidavit in support of Hamptons’ application to reopen the appeal that “it is not possible to assign specific legal costs or barristers’ fees to each of the grounds of the Amended Summons”: Appellant’s Written Submissions at [12](e).

24. The Council disputed that the way it had argued its case at the hearing of the appeal amounted to unreasonable conduct that would make an apportionment of costs fair and reasonable. The Council spent more time in oral argument at the hearing in explaining grounds 1 and 4, than grounds 2 and 3, but that was because those grounds, especially ground 1, had not previously been determined authoritatively by the Court. The character and operation of s 49 of the Local Government Act 1993 (NSW) had not been determined before. The distinction between the grant of a development consent to a subdivision and the consequent but separate operation of a provision such as s 49 of the Local Government Act to effect the dedication of a subdivided lot was a nuanced issue that had not been considered by the Court but has now been explained decision in this appeal. The Court explained and distinguished earlier decisions of the Court and the Court of Appeal concerning the grant of development consent requiring the dedication of land as a public reserve.

25. The Council submitted that both grounds 1 and 4 were clearly arguable, having regard to the particular way in which the Commissioner expressed her reasons for decision on the issues raised by those grounds. The Court’s reasons for rejecting grounds 1 and 4 were different to how the Commissioner dealt with the issues raised by those grounds and Hamptons’ arguments on the appeal in relation to those grounds. The Council did not succeed in establishing grounds 1 and 4, but not because of Hamptons’ arguments.

26. I consider that Hamptons has not established that an apportionment of costs is appropriate in the circumstances of this appeal. The mere fact that an appellant does not succeed on all of the grounds raised in an appeal under s 56A(1) of the Court Act is not sufficient by itself for the Court to depart from the usual rule that costs follow the event and instead award costs only with respect to the grounds on which the appellant did succeed. On an appeal under s 56A(1) of the Court Act, as with other proceedings, a court should ordinarily award the costs of the proceedings to a successful party without attempting to differentiate between the issues on which the party succeeded and the issues on which the party failed: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]; Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]; Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [40].

27. Nevertheless, the Court has a discretion under s 98(1) of the Civil Procedure Act 2005 (NSW) to apportion the costs to be awarded having regard to the issues on which a party failed. Factors influencing the exercise of the discretion to apportion costs include:

1. whether the issues on which the applicant did not succeed are “clearly dominant or separable” or “clearly discrete” from those on which the applicant did succeed: James & Ors v Surf Road Nominees Pty Limited & Ors (No 2) [2005] NSWCA 296 at [32], [34];

2. whether the issues on which the applicant did not succeed took up a considerable part of the trial, either by way of evidence or argument (Sabah Yazgi v Permanent Custodians Limited (No 2) at [24]) or, on an appeal, increased the time taken in hearing the appeal (Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27]; Bostik Australia Pty Ltd v Liddiard (No 2) at [38]; see SzeTu v Lowe (No 2) at [40]);

3. whether, in determining the discreteness of the issues, the time taken on each issue, at the hearing and in evidence, can be identified or realistically estimated: James & Ors v Surf Road Nominees Pty Limited & Ors (No 2) at [35];

4. whether the issues on which the applicant did not succeed lacked real merit: Centro Properties Limited v Hurstville City Council & Anor [2004] NSWLEC 718 at [21], [23] and see similar comments in the cases quoted in [14], [16] and [20]; McCallum v Sandercock (No 2) [2011] NSWLEC 203 at [49](e); and

5. whether the applicant unreasonably pursued an issue or behaved improperly or unreasonably in the conduct of the proceedings: Latoudis v Casey (1990) 170 CLR 534 at 544; [1990] HCA 59; Oshlack v Richmond River Council (1998) 193 CLR 72 at 122; [1998] HCA 11.

31. In this appeal, I do not consider that the grounds on which the Council did not succeed are clearly dominant or separable from the other grounds on which the Council succeeded; occupied such significant time at the hearing of the appeal that separate identification and estimation of the time spent on the grounds is realistic; lacked real merit; or were unreasonably raised or pursued.

32. Grounds 1 and 4 did raise different errors on questions of law to those raised by grounds 2 and 3. The grounds therefore needed to be separately addressed by the parties in their submissions, both written and oral. Addressing these questions of law, however, primarily involved construction of the statutory provisions concerned and the Commissioner’s reasons for decision, and only concerned peripherally the evidence in the court below. The legal arguments could be, and were, put by the parties in a measured and sequential manner within the timeframe of the hearing. Argument on all grounds was completed by each party in a couple of hours each, so that the appeal was heard in one day. Argument on grounds 1 and 4, on which the Council did not succeed, did not unreasonably prolong the hearing of the appeal. The appeal would have been listed and conducted as a one day hearing, irrespective of whether the Council had only raised and pursued grounds 2 and 3, on which the Council succeeded, and not also grounds 1 and 4, on which the Council did not succeed.

33. As Hamptons’ solicitor pragmatically observed, it is not possible to assign specific legal costs or barristers’ fees to each of the grounds of appeal. The grounds were addressed as a whole by the parties in their written and oral submissions.

34. Although I determined that grounds 1 and 4 were not established, the grounds were clearly arguable especially having regard to the way in which the Commissioner expressed her reasons on the issues raised by those grounds. The issues raised by ground 1 concerning s 49 of the Local Government Act had not been decided by a judge of the Court before, and the manner in which the Commissioner dealt with the issues gave rise to the question of law in ground 1. The ground did not lack real merit and the Council did not unreasonably raise or pursue ground 1. The Court’s reasons for rejecting ground 1 differed to the reasons of the Commissioner and the arguments of Hamptons in relation to the issues raised by ground 1.

35. Ground 4 was more prosaic. The ground concerned the construction and application of the floor space ratio development standards in cl 4.4 and cl 4.5 of CBLEP. Again, however, the manner in which the Commissioner expressed her findings on the floor space ratio development standards gave rise to the question of law in ground 4. The Court’s reasons for rejecting ground 4 differed from the Commissioner’s reasons and Hamptons’ arguments regarding the floor space ratio development standards. The ground did not lack real merit and the Council did not unreasonably raise or pursue ground 4.

36. As the Court of Appeal has observed on a number of occasions, “[w]here there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation”: Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 at [11], quoted in Bostik Australia Pty Ltd v Liddiard (No 2) at [38], Sze Tu v Lowe (No 2) at [40] and Dickson v Petrie (No 2) at [6].

37. Based on my impression and evaluation of the grounds of appeal and the conduct of the hearing of the appeal, I do not consider apportionment of the costs based on the grounds that were successful and unsuccessful is appropriate. The usual order for costs should be made so that the party who was unsuccessful in the ultimate outcome of the appeal, Hamptons, should pay the costs of the party that was successful in the ultimate outcome of the appeal, the Council. That is the order I made in disposing of the appeal on 8 May 2025. That order should stand. I therefore dismiss Hamptons’ notice of motion filed on 21 May 2025 seeking to vary that order.

38. This leaves the question of costs of Hamptons’ notice of motion. I consider there should be no order as to costs in relation to Hamptons’ notice of motion. I have allowed the reopening of the appeal to give Hamptons the opportunity to make further arguments as to the costs order that should be made. This course was not opposed by the Council. By doing so, the parties have been put back in the position they would have been in at the hearing of the appeal to argue the issue of the costs of the appeal. The costs of arguing this issue on the hearing of the notice of motion, rather than at the hearing of the appeal, should not be the subject of a separate order for costs.

39. I make the following orders:

1. Dismiss the respondent’s notice of motion filed on 21 May 2025.

2. Make no order as to costs of the notice of motion with the intention that each party pays their own costs.

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Decision last updated: 14 August 2025