Edwards v Woollahra Municipal Council

[2004] NSWLEC 221

Land and Environment Court

of New South Wales

CITATION:	Edwards v Woollahra Municipal Council & Anor [2004] NSWLEC 221
PARTIES:	John Clifford Edwards (Appl) Woollahra Municipal Council (1R) Anna Jane Vaile (2R)
FILE NUMBER(S):	41395 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Development Application :- Extension to a dwelling Shadowing Local resident objector Third party appeal Discontinuance of proceedings COSTS: Costs in the event of discontinuance of proceedings
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	1April 2004
EX TEMPORE JUDGMENT DATE :	04/01/2004
LEGAL REPRESENTATIVES:	J C Edwards (Appl - in person) A Aitken (2R) Aitken McLachlan Thorpe (Solicitors - 2R)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

41395/03

McCLELLAN J

THURSDAY 1 APRIL 2004

EDWARDS

Applicant
v

WOOLLAHRA MUNICIPAL COUNCIL

Respondent

Judgment

Introduction

1 HIS HONOUR: This matter comes before me this morning because the applicant has discontinued the proceedings against the first respondent, Woollahra Municipal Council, and seeks to discontinue these proceedings against the second respondent.

2 The applicant occupies a property which is next but one to the property of the second respondent. They are both modest Paddington dwellings where difficulties commonly arise in relation to matters of shadow overlooking and similar problems. Apparently those problems arose when the second respondent sought the approval of the council to an extension to her property.

3 The application was considered by the Council and was the subject of representations from local residents including representations by the applicant. As I understand the position, he was given the opportunity to make written submissions and also made an oral presentation to the council or perhaps one of its committees. Notwithstanding those representations, the Council approved the application.

4 The applicant, concerned with the consequences, particularly shadow consequences for his own property, did not happily accept the Council's determination and decided to commence proceedings in class 4 of the Court's jurisdiction.

5 The matter has been before the Court on a number of occasions. On some of those occasions the matter has been before me, on others before Talbot J and I think also before the Registrar of the Court.

6 Early in the proceedings when they came before me, I indicated to the applicant that I was troubled as to whether or not there was a question of law which could found class 4 proceedings or whether the true complaint was a matter of merit. I explained to the applicant that under the legislation in this State, except in relation to designated development, there is no third party right of appeal in relation to the merits.

7 Some weeks after I made those observations, the applicant decided that he would withdraw the proceedings and has now done that with respect to the Council and made arrangements in relation to a modest payment with respect to the Council's costs.

8 The second respondent seeks an order for her costs in the event that the applicant discontinues. In class 4 of the Court's jurisdiction, the conventional rules in relation to costs apply. Accordingly, costs will follow the event unless there are circumstances, which dictate a different outcome.

9 Having regard to the matters agitated before me this morning, it is apparent that the applicant throughout these proceedings has maintained that there will be an unacceptable adverse impact upon his own property. This impact is said to arise from matters of shadow and there has been some controversy as to whether or not the council was provided with accurate shadow diagrams when it considered the application. However, the applicant has now decided to discontinue the proceedings in circumstances where I am satisfied there is nothing unusual which should deprive the second respondent of an order for her costs.

10 Costs are of course to be provided as compensation in circumstances where a party has incurred costs when ultimately it is apparent that those costs would not have been incurred but for the actions of the opposing party.

11 Accordingly, in the circumstances of this case I am satisfied that it is appropriate that the second respondent have an order for costs from the applicant. Accordingly, the orders I make are that the applicant is granted leave to discontinue against the second respondent.

12 I order the applicant to pay the costs of the second respondent.

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