CITATION: Gee v Port Stephens Council [2003] NSWLEC 260

PARTIES: Anthony Gee (Appl)
Port Stephens Council (Resp)

FILE NUMBER(S): 10743 of 2003

CORAM: McClellan CJ

KEY ISSUES: Costs - Designated Development - Practice and Procedure :- Costs in planning and building appeals where preliminary question of law
Status of practice direction
Practice not to award costs in planning and building appeals in absence of exceptional circumstances
Rationale for departure from ordinary costs principles in relation to merit review
Where proceedings take on character of conventional litigation
ordinary principles to be applied to making of costs order

LEGISLATION CITED: Land and Environment Court Act 1979, s 69(2)
Supreme Court Act 1970

CASES CITED: Cadonia Pty Ltd v Leichhardt Council, Bignold J, NSWLEC, 5 August 1994, unreported;
Cole v Mosman Municipal Council (1960) 6 LGRA 31;
Commissioner of Valuation v Jamaica Gypsum Ltd (1971) 14 RRC 4 (Ryde's Rating Cases);
CSR Limited v Fairfield City Council [2001] NSWLEC 221;
Dobrel v Valuer General (No 2) (1993) 80 LGERA 26;
Drummoyne Municipal Council v Lebnan & Ors (1974) 131 CLR 350; (1974) 4 ALR 231;
Esso Exploration and Production Australia Inc v Shire of Morwell (1985) 60 LGRA 82;
Gibson v Mosman Municipal Council (2001) LGERA 397;
Latoudis v Casey (1990) 170 CLR 534;
Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673;
Maurici v Chief Commissioner of State Revenue (No 5) (2001) 119 LGERA 395;
McDonald Industries Ltd v Sydney City Council (1980) 43 LGRA 428;
Murray Publishers Pty Ld v Valuer General (1994) 84 LGERA 13;
Nahum v North Sydney Municipal Council (1994) 83 LGERA 200;
Nazero Construction Pty Ltd v North Sydney Council (No 2) (2002) NSWLEC 194;
New South Wales Golf Club Ltd v Valuer General (1994) 82 LGERA;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365;
Raiti v Leichhardt Municipal Council (1991) 72 LGRA 333;
Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153;
Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co [No 2] [1953] 1 WLR 1481 [1953] 2 All ER 1588;
Teller Properties Pty Ltd v Randwick Council (1994) 84 LGERA 369;
Tricas v Valuer General (Talbot J, NSWLEC, 29 May 1992, unreported)

DATES OF HEARING: 17 October 2003

EX TEMPORE
JUDGMENT DATE :
10/17/2003

LEGAL REPRESENTATIVES:

J Ayling SC (Barrister)
Cleaves Mallik Gibbs (Solicitors)
P W Larkin (Barrister)
Sparke Helmore (Solicitors)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10743/03

McCLELLAN J

GEE

Applicant

PORT STEPHENS COUNCIL

Respondent

JUDGMENT

1 HIS HONOUR: The applicant in these proceedings seeks an order for costs in relation to a preliminary question which arose in class 1 proceedings which the Council having conceded relevant matters, has been resolved in his favour.

2 The site the subject of the proceedings was 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.

Continue reading Gee v Port Stephens Council

Details

AGLC: Gee v Port Stephens Council [2003] NSWLEC 260
Case: [2003] NSWLEC 260
Decision Date: 10/17/2003

CaseChat Overview and Summary

In Gee v Port Stephens Council, the applicant sought an order for costs relating to a preliminary question in Class 1 proceedings. The site in question was previously used for mineral sands processing by RZM Pty Limited. The applicant acquired the site in 2002 and sought to redevelop it for storing and retailing treated pine products. The council put in issue whether the site had existing use rights, which would permit the proposed development. After significant preparation and evidence, the council conceded that existing use rights did exist on the site. The applicant sought an order for costs in relation to the determination of the preliminary question. The court considered the general principles of awarding costs, including the rationale for not awarding costs in planning and building appeals unless exceptional circumstances exist. The court held that when a council raises a preliminary question that precludes approval, the proceedings take on the character of conventional litigation, and costs should follow the event. The court found that the council had imposed considerable costs on the applicant by raising the issue of existing use rights, and ordered the council to pay the applicant's costs of the preliminary question.

Orders