Carbone v Camden Council (No 2)

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Carbone v Camden Council (No 2) [2015] NSWLEC 154
Hearing dates:	29 September 2015
Date of orders:	01 October 2015
Decision date:	01 October 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	1. The application for costs is dismissed; and 2. The Applicant is to pay the Respondent's costs of the motion as agreed or assessed.
Catchwords:	COSTS – “fair and reasonable” – costs for conciliation conference – costs for hearing – decision of council rejecting recommendation by staff for approval – failure of applicant at hearing on critical issue
Legislation Cited:	Civil Procedure Act 2005 s 56 Conveyancing Act 1919 s 88B Land and Environment Court Act 1979 s 34 Camden Development Control Plan 2011 Camden Local Environmental Plan 2010 Land and Environment Court Rules 2007 r 3.7
Cases Cited:	ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 Carbone v Camden Council [2015] NSWLEC 1161 Golden Max Pty Limited v Hurstville City Council [2015] NSWLEC 16; 208 LGERA 221 Grant v Kiama Municipal Council [2006] NSWLEC 70 Krivanek v Blue Mountains Council (No 2) [2004] NSWLEC 732
Category:	Costs
Parties:	Mr M Carbone (Applicant) Camden Council (Respondent)
Representation:	Counsel: Mr T S Hale SC (Applicant) Mr A M Pickles SC (Respondent)   Solicitors: Mr D Carbone, Barclays Law Group (Applicant) Mr C Drury, Sparke Helmore (Respondent)
File Number(s):	10922 of 2014
Publication restriction:	No

Contents

Judgment

Introduction

The statutory framework

The development application process

The basic dates

The assessment process

Commencement of proceedings

The Council’s decision-making process

The Court process

Before the Acting Registrar

The conciliation conference

The Council’s contentions

The hearing

The Acting Commissioner’s decision

Conclusion

Orders

Judgment

Introduction

1. On 16 June 2015, Mr Mario Carbone, the Applicant in this Class 1 appeal proceeding, filed a Notice of Motion seeking three orders:

1. The Respondent pay the Applicant’s costs of the conciliation conference as agreed or assessed.

2. The Respondent pay the Applicant’s costs of the proceedings as agreed or assessed.

3. The Respondent pay the Applicant’s costs of the Notice of Motion filed 15 June 2015, as agreed or assessed.

2. As can be seen from the terms of the motion, it is necessary to consider not only the general question of the conduct of the proceedings but also, separately, the matters leading up to (and to the conclusion of) the conciliation conference.

3. Unsurprisingly, Camden Council (“the Council”), the Respondent to the motion and in the proceedings, resists any order for costs being made.

4. In order to deal with these matters, it is necessary to consider the following:

1. the Council's development application assessment process for the subdivision that was subject to the Class 1 appeal;

2. the preliminary hearing processes in the Court prior to the conciliation conference;

3. the conciliation conference;

4. the hearing before Smithson AC; and

5. Smithson AC’s decision.

The statutory framework

5. Rule 3.7 of the Land and Environment Court Rules 2007 provides the regime for considering, relevantly, costs applications made in Class 1 proceedings. Rule…