Land and Environment Court
of New South Wales
CITATION: Corowa v Geographe Point Pty Ltd & Anor [No. 2] [2007] NSWLEC 272 PARTIES: APPLICANT
Robert CorowaFIRST RESPONDENT
SECOND RESPONDENT
Geographe Point Pty Ltd
Tweed Shire CouncilFILE 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 3CASES 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 114DATES OF HEARING: 14 May 2007
DATE OF JUDGMENT:
23 May 2007LEGAL REPRESENTATIVES: APPLICANT
Mr A Oshlack (agent)
SOLICITORS
N/AFIRST RESPONDENT
SECOND RESPONDENT
Ms L Lim (solicitor)
SOLICITORS
NOT Lawyers
Dr S Berveling
SOLICITORS
Stacks/Northern Rivers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
23 May 2007
41042 of 2006
ROBERT COROWA
ApplicantGEOGRAPHE POINT PTY LTD
First RespondentJUDGMENTTWEED SHIRE COUNCIL
Second Respondent
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…
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- Case
- [2007] NSWLEC 272
- Decision Date
CaseChat Overview and Summary
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.
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