Cohen & Anor. v Wyong Shire Council

Cohen and Anor. (the appellants) appealed to the Court of Appeal of New South Wales against orders made by the primary judge concerning the placement of a demountable office and shipping container on their land. The dispute centred on whether these structures constituted "buildings" under the relevant planning legislation, whether they were temporary, and if their use was prohibited. The primary judge had ordered the removal of the structures and awarded costs in favour of Wyong Shire Council (the respondent).

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether the demountable office and shipping container were "buildings" within the meaning of the relevant provisions of the Local Government Act 1993 (NSW) and the Wyong Local Environmental Plan 1994. Secondly, the court needed to assess whether these structures were temporary in nature, which would affect their classification and regulatory treatment. Thirdly, the court was asked to consider whether the use of these structures was prohibited under the planning instruments. Finally, the court had to review the primary judge's decision regarding procedural fairness, specifically concerning the appellants' ability to cross-examine a Council witness, and to reconsider the order for costs.

The Court of Appeal reasoned that the demountable office, being a substantial structure designed for occupation, constituted a "building" for the purposes of the planning instruments. However, the shipping container, while placed on the land, was found not to be a building in the same sense, particularly given the evidence suggesting it was intended for storage and was not permanently affixed. The court also addressed the issue of procedural fairness, noting that while the appellants were discouraged from cross-examining a Council witness, this did not amount to a denial of procedural fairness in the circumstances. Regarding costs, the court determined that the primary judge's order was too broad and that a partial award of costs in favour of the Council was more appropriate, reflecting the mixed success of the parties.

The appeal was allowed in part, with the order for costs made by the primary judge being substituted to require the appellants to pay one-half of the Council's costs of the proceedings at first instance. The remainder of the appeal was dismissed, and each party was ordered to bear its own costs of the appeal.