Drake v Randwick City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Drake v Randwick City Council [2021] NSWLEC 98

Hearing dates:

On the papers

Date of orders:

16 September 2021

Decision date:

16 September 2021

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See orders at [35]

Catchwords:

COSTS - Applicant commences Class 4 proceedings seeking declaratory relief - proceedings concerned application of cl 4.1A of the Randwick Local Environmental Plan 2012 to nominated development proposal plans - Applicant subsequently amends relief - amended relief seeks abstract judicial advice concerning cl 4.1A - not appropriate to give judicial advice sought – related Class 1 proceedings based on cl 4.1A fail because design merit proceedings fail - Class 4 proceedings dismissed - no reason to depart from presumption that costs follow the event - Applicant to pay Respondent's costs of Class 4 proceedings - Applicant to pay Respondent's costs of Class 4 costs consideration

Legislation Cited:

Civil Procedure Act 2005, s 98

Land and Environment Court Act 1979, ss 56A and 57

Randwick Local Environmental Plan 2012, cl 4.1A

Uniform Civil Procedure Rules 2005

Cases Cited:

Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401

Drake v Randwick City Council [2021] NSWLEC 97

Kelly v Randwick City Council; Drake v Randwick City Council [2021] NSWLEC 68

Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category:

Costs

Parties:

Lea Ellen Cecilia Drake (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
Mr P Tomasetti SC (Applicant) (Respondent on costs application)
Mr M Astill, barrister (Respondent) (Applicant on costs application)

Solicitors:
Mr C Kelly (Applicant) (Respondent on costs application)
Randwick City Council (Respondent) (Applicant on costs application)

File Number(s):

365534 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The costs determination process

Introduction

The relevant statutory provisions

The written submissions

The Council's submissions

The submissions for Ms Drake

The Council's submissions in reply

Consideration

Costs

Orders

Judgment

Introduction

1. On 24 December 2020, Ms Drake commenced these Class 4 proceedings against Randwick City Council (the Council) seeking two declarations and costs. The proceedings arose from proposed development at 27 Adams Avenue, Malabar (the site). Ms Drake is a co‑owner of the site. The Council was the consent authority for the proposed development.

2. The declaratory relief sought in the Summons was in the following terms:

1   A declaration that the development described in plans referred to in the Schedule One hereto in relation to land situated at 27 Adams Avenue, Malabar (“the Land”) is development for a “dual occupancy (attached)” within the meaning of that phrase in the Randwick Local Environmental Plan 2012 (“RLEP 2012”) and is development that is permissible with development consent granted thereunder.

2   A declaration that subdivision of the Land pursuant to the provisions of the Strata Schemes (Development) Act 2015 as set out in the proposed plan of subdivision referred to in Schedule 2 hereof is permissible with development consent granted pursuant to the RLEP 2012.

3. It…