Carriage v Stockland Development Pty Ltd [No 8] - [2004] NSWLEC 727

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland Development Pty Ltd & Ors [No 8] [2004] NSWLEC 727

PARTIES: APPLICANT
Allen Carriage
FIRST RESPONDENT
Stockland Development Pty Limited
SECOND RESPONDENT
Director-General of National Parks and Wildlife Service of New South Wales

FILE NUMBER(S): 40863 of 2002

CORAM: Pain J

KEY ISSUES: Costs :- Partial award of costs - whether proceedings sufficiently final

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED: Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216 ;
Carriage v Stockland (Constructors) Pty Ltd and Ors [No 2] [2002] 123 LGERA 214 ;
Carriage v Stockland (Constructors) Pty Ltd and Ors [No 3] [2003] NSWLEC 86 ;
Carriage v Stockland (Constructors) Pty Ltd and Ors [No 4] [2003] NSWLEC 129 ;
Carriage v Stockland (Constructors) Pty Ltd and Ors [No 5] [2003] NSWLEC 197 ;
Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541 ;
Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148 ;
Fairfield City Council v Holroyd City Council [1999] NSWLEC 232;
Save the Showground Inc v Min for Urban Affairs and Planning (1998) 105 LGERA 254 ;
Slack-Smith and Anor v Director General Department of Land and Water Conservation [2002] NSWLEC 245

DATES OF HEARING: 20/12/2004

EX TEMPORE
JUDGMENT DATE : 12/20/2004

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Robertson SC instructed by Shaw Reynolds Lawyers
RESPONDENT
Mr M Craig QC instructed by Baker & McKenzie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

20 December 2004

40863 of 2002 ALLAN CARRIAGE v STOCKLAND DEVELOPMENT PTY LTD & ORS NO 8
EX TEMPORE JUDGMENT

1 Her Honour: The Applicant has filed and moved on Short Minutes of Order seeking an order that the First Respondent pay its costs in relation to Grounds 1 and 2 in the proceedings to date.

2 At par [2] of my judgment in Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541 (“Carriage No 6”) of 28 September 2004 I summarised the claims made by the Applicant in these proceedings as follows:

· Ground 1: The Lot 235 Earthworks

That the First Respondent carried out earthworks, being the filling of land, without development consent on land known as “Lot 235” contrary to s 76A(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

· Ground 2: Invalidity of the Construction Certificates

That the construction certificate issued by the Fifth Respondent which certified the fill on Lot 235 is invalid.

· Ground 3: The Endangered Ecological Community

That the First Respondent picked or caused damage to an endangered ecological community on land known as “Lot 235” contrary to s 118A(2) and/or s 118D(1) of the National Parks and Wildlife Act 1974 (“the NP&W Act”).

· Ground 4: The AIR Earthworks

That the First Respondent carried out earthworks, being the filling of land, without development consent on…

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.

Keep reading for free

Create a free CaseChat account to read Carriage v Stockland Development Pty Ltd [No 8] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWLEC 727
Decision Date: 12/20/2004

CaseChat Overview and Summary

In this matter, the applicant, Allen Carriage, sought an order that the first respondent, Stockland Development Pty Limited, pay costs in relation to Grounds 1 and 2 in the proceedings to date. The key issues before the court were whether the proceedings were sufficiently final to warrant a partial award of costs and whether there were any special circumstances that should be considered in making the decision. The applicant argued that the proceedings were at a sufficiently final stage to justify a costs order in their favour for Grounds 1 and 2, given their success on these grounds. The first respondent argued that the proceedings were not yet final, as the court had yet to decide if any relief in the form of remediation orders in relation to Lot 235 would be made and had yet to decide Ground 3.

The court considered the relevant principles governing the award of costs, noting that while costs generally follow the event, this is not an absolute rule, and the court must take into account all relevant factors, including those of a public interest nature. The court found that the matter had reached an appropriate stage for the making of some costs orders and that it was appropriate to do so given the circumstances in which the applicant found themselves in the Federal Magistrates Court. The court awarded costs in the applicant's favour in relation to Grounds 1 and 2 and decided not to make any order as to costs on Ground 4, as it considered Grounds 1, 2, and 4 to be interlinked. The court also noted that any costs application in relation to Grounds 3 and 5 would be considered on the basis that these issues were separate in the proceedings.

Final orders made by the court included the first respondent paying the costs of the applicant in relation to Grounds 1 and 2 of these proceedings and the costs hearing on 20 December 2004.

Orders