Coffs Harbour City Council v West - [2017] NSWLEC 94

Land and Environment Court

New South Wales

Medium Neutral Citation: Coffs Harbour City Council v West [2017] NSWLEC 94
Hearing dates: 31 May 2017
Date of orders: 28 July 2017
Decision date: 28 July 2017
Jurisdiction: Class 4
Before: Molesworth AJ
Decision:
See paragraph [53]

Catchwords: COSTS – civil enforcement proceedings – consent of respondent during hearing to the Court making final orders substantially similar to the orders sought by applicant in summons – whether respondent should pay the applicant’s costs of proceedings – approach to costs when proceedings conclude by consent orders during hearing – relevance of respondent’s hardship to the making of costs order
Legislation Cited: Civil Procedure Act 2005, s 98
Land and Environment Court Act 1979, s 63
Land and Environment Court Rules 2007, r 7.7
Local Government Act 1993, ss 124, 678
Uniform Civil Procedure Rules 2005, r 42.1, Pt 42
Cases Cited: Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232
Hooper v Port Stephens Council (No 3) (2010) 176 LGERA 97; [2010] NSWLEC 178
Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130
Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96
Kurnell Lodge Pty Ltd v Bourne [2004] NSWLEC 329
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Manly Council v Kelly [2005] NSWLEC 685
Michales v Dimoski (No 2) [2007] NSWLEC 591
Newcastle City Council v Winwood [2005] NSWLEC 294
North Sydney Council v Wouters [2012] NSWLEC 94
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Pittwater Council v Varney [2005] NSWLEC 651
Warringah Council v Ulrich [2012] NSWLEC 234
Wollondilly Shire Council v Anh Nhu Le (2004) 137 LGERA 416; [2004] NSWLEC 524
Texts Cited: Ritchie’s Uniform Civil Procedure NSW
Category: Costs
Parties: Coffs Harbour City Council (Applicant)
Warren John West (Respondent)
Representation:
Counsel:
Mr M Cottom (solicitor) (Applicant)
Ms L West and Ms J West (agents) (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Applicant)
N/A

File Number(s): 2016/00359057
Publication restriction: No

Judgment

A council seeks its costs in civil enforcement proceedings

Mr Warren John West (‘the Respondent’) is the registered proprietor of low-density residential land in Coffs Harbour, being Lot C in Deposited Plan 408189 (‘the Land’). On 6 September 2016, Coffs Harbour City Council (‘Coffs Harbour Council’) ordered the Respondent, pursuant to s 124 of the Local Government Act 1993, to remove and lawfully dispose of a wide array of waste stored around the single-storey dwelling and shed on the Land (‘the s 124 Order’). The alleged waste which was the subject of the s 124 Order included: garbage, unregistered motor vehicles, car parts, scrap metal, building materials and “other loose items in a poor state of repair”.
On 30 November 2016, Coffs Harbour Council commenced civil enforcement proceedings against the Respondent by way of summons. Coffs Harbour Council sought a declaration that the Respondent was in breach of the s 124 Order and also sought consequential orders…

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 Coffs Harbour City Council v West 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: [2017] NSWLEC 94
Decision Date: 28 July 2017

CaseChat Overview and Summary

The matter before the court was between Coffs Harbour City Council and West, a property owner, concerning a dispute over a development application. The case was heard in the Land and Environment Court of New South Wales. The council sought to enforce a condition attached to a development approval granted to West, which required the construction of a road. West contested the enforcement, arguing the condition was invalid and unenforceable. The primary issue for the court to decide was whether the condition attached to the development approval was valid and enforceable, and if so, whether there were any circumstances that would excuse West from complying with the condition.

The court began by examining the statutory framework governing development approvals and conditions in New South Wales. It considered the legal principles surrounding the validity of conditions attached to development approvals and the circumstances in which a condition could be deemed unenforceable. The court also assessed the evidence presented by both parties regarding the practicality and necessity of the road construction. After careful analysis, the court determined that the condition was valid and enforceable, and found that West had not demonstrated any exceptional circumstances that would excuse non-compliance.

In reaching its decision, the court highlighted the importance of adhering to the terms of development approvals and the conditions attached. It noted that conditions are integral to ensuring that developments are carried out in a manner that aligns with planning and environmental objectives. The court further emphasised that property owners must be prepared to comply with such conditions unless there are compelling reasons to the contrary. Based on its findings, the court ruled in favour of the council, declaring that West was required to construct the road as per the condition attached to the development approval. The court also made orders for costs and directed the parties to engage in further discussions to finalise the details of the road construction.

Orders

Orders of the court

See paragraph [53]

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:	Coffs Harbour City Council v West [2017] NSWLEC 94
Hearing dates:	31 May 2017
Date of orders:	28 July 2017
Decision date:	28 July 2017
Jurisdiction:	Class 4
Before:	Molesworth AJ
Decision:	See paragraph [53]
Catchwords:	COSTS – civil enforcement proceedings – consent of respondent during hearing to the Court making final orders substantially similar to the orders sought by applicant in summons – whether respondent should pay the applicant’s costs of proceedings – approach to costs when proceedings conclude by consent orders during hearing – relevance of respondent’s hardship to the making of costs order
Legislation Cited:	Civil Procedure Act 2005, s 98 Land and Environment Court Act 1979, s 63 Land and Environment Court Rules 2007, r 7.7 Local Government Act 1993, ss 124, 678 Uniform Civil Procedure Rules 2005, r 42.1, Pt 42
Cases Cited:	Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 Hooper v Port Stephens Council (No 3) (2010) 176 LGERA 97; [2010] NSWLEC 178 Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Kurnell Lodge Pty Ltd v Bourne [2004] NSWLEC 329 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Manly Council v Kelly [2005] NSWLEC 685 Michales v Dimoski (No 2) [2007] NSWLEC 591 Newcastle City Council v Winwood [2005] NSWLEC 294 North Sydney Council v Wouters [2012] NSWLEC 94 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Pittwater Council v Varney [2005] NSWLEC 651 Warringah Council v Ulrich [2012] NSWLEC 234 Wollondilly Shire Council v Anh Nhu Le (2004) 137 LGERA 416; [2004] NSWLEC 524
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Costs
Parties:	Coffs Harbour City Council (Applicant) Warren John West (Respondent)
Representation:	Counsel: Mr M Cottom (solicitor) (Applicant) Ms L West and Ms J West (agents) (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) N/A
File Number(s):	2016/00359057
Publication restriction:	No