Corowa v Geographe Point Pty Ltd [No. 2] - [2007] NSWLEC 272

Land and Environment Court

of New South Wales

CITATION: Corowa v Geographe Point Pty Ltd & Anor [No. 2] [2007] NSWLEC 272

PARTIES:
APPLICANT
Robert Corowa
FIRST RESPONDENT
Geographe Point Pty Ltd
SECOND RESPONDENT
Tweed Shire Council

FILE NUMBER(S): 41042 of 2006

CORAM: Jagot J

KEY ISSUES: Costs :- whether proceedings brought in public interest - whether additional or special circumstances - whether usual order as to costs should be made - usual costs order made

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5(a)(iv), s 101, s 123
Land and Environment Court Act 1979 s 63, s 69
Threatened Species Conservation Act 1995 s 3

CASES CITED: Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718;
Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121;
Engadine Area Traffic Action Group Inc v Sutherland Shire Council and Another (No 2) (2004) 136 LGERA 365;
Kennedy on Behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No 2) (2002) 122 LGERA 84;
Milne v Minister for Planning & Anor [No. 2] [2007] NSWLEC 66;
Oshlack v Richmond River Shire Council (1998) 193 CLR 72;
Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236;
Plumb v Penrith City Council and Another (2003) 126 LGERA 109;
Save the Ridge Inc (Association No A03329) v Commonwealth and Another (2006) 230 ALR 411;
Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254;
South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 101 LGERA 114

DATES OF HEARING: 14 May 2007

DATE OF JUDGMENT:
23 May 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Oshlack (agent)
SOLICITORS
N/A
FIRST RESPONDENT
Ms L Lim (solicitor)
SOLICITORS
NOT Lawyers
SECOND RESPONDENT
Dr S Berveling
SOLICITORS
Stacks/Northern Rivers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

23 May 2007

41042 of 2006

ROBERT COROWA
Applicant

GEOGRAPHE POINT PTY LTD
First Respondent

TWEED SHIRE COUNCIL
Second Respondent
JUDGMENT

Jagot J:

1 On 13 March 2007 I delivered my reasons for dismissing the applicant’s Class 4 application (Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121). In the Class 4 application Mr Corowa sought declarations that development consent 03/1038 authorising the subdivision of land at Chinderah and associated construction certificate 05/1084 were invalid and, alternatively, that Geographe Point Pty Ltd had cleared that land in breach of the consent, as well as associated orders for the remediation of the land. Geographe Point and the Council now seek an order for costs.

2 Geographe Point submitted that:

(1) Under s 69 of the Land and Environment Court Act 1979, the successful party was generally entitled to the usual order for costs absent disentitling conduct.

(2) There are no circumstances that would justify departure from the…

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 Corowa v Geographe Point Pty Ltd [No. 2] 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: [2007] NSWLEC 272
Decision Date: 23 May 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Robert Corowa, the applicant, sought to challenge the validity of development consent and a construction certificate issued by Geographe Point Pty Ltd and the Tweed Shire Council, the respondents. Corowa argued that the consent and certificate were invalid and that Geographe Point had cleared land in breach of the consent. The court dismissed Corowa's application, and the respondents now seek an order for costs.

The legal issues before the court were whether the proceedings were brought in the public interest, whether there were any additional or special circumstances warranting departure from the usual order as to costs, and whether the usual order as to costs should be made. The respondents argued that the proceedings were not brought in the public interest and that there were no special circumstances warranting departure from the usual order as to costs. Corowa, on the other hand, argued that the proceedings were brought in the public interest and that there were special circumstances warranting a departure from the usual order as to costs.

The court considered the relevant legislation and decided that the usual order as to costs should be made. The court found that while the proceedings had a public interest character, they were not analogous to cases where there was incontrovertible evidence of a high level of public scrutiny and interest in the dispute. The court also found that the issues in the case were not novel or of much general importance and some difficulty, and that the public interest character of the litigation alone was not sufficient to warrant departure from the usual order as to costs. The court further found that there were insufficient grounds to make any order in favour of Corowa's agent, Mr Oshlack, with respect to the withdrawn claim for indemnity costs.

The court made the following orders: (1) the applicant is to pay the respondents' costs of the proceedings (including with respect to the hearing on costs) as agreed or assessed.

Orders