Gosford City Council v Beville [Costs]

[2003] NSWLEC 80

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Land and Environment Court

of New South Wales

CITATION:	Gosford City Council v Beville [Costs] [2003] NSWLEC 80
PARTIES:	APPLICANT Gosford City Council RESPONDENT John Alexander Beville
FILE NUMBER(S):	(4)0477 of 2002
CORAM:	Pain J
KEY ISSUES:	Costs :- Class 4 - breach of Environmental Planning and Assessment Act 1979 - whether costs should be awarded
LEGISLATION CITED:	Land and Environment Court Act 1979 s 69
CASES CITED:	Richmond River Council v Oshlack (1996) 39 NSWLR 622
DATES OF HEARING:	19/02/2003
EX TEMPORE JUDGMENT DATE :	02/19/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr P Donnellan (solicitor) SOLICITORS PJ Donnellan & Co RESPONDENT Mr B Spinks (solicitor) SOLICITORS Robinson Legal

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(4) 0477 of 2002

Pain J

19 February 2003

GOSFORD CITY COUNCIL

Applicant
v

JOHN ALEXANDER BEVILLE

Respondent

Judgment on Costs

1. It does seem to me that the Council was essentially successful in this matter. There was a slight modification of the order sought, but that was to ameliorate the impact of the declarations and demolition order because the complying development certificate is void.

2. I have broad discretion under s 69 of the Land and Environment Court Act 1979 to deal with costs. The usual practice of the Court is that the successful party receives its costs. Applying the Court of Appeal decision of Clarke J in Richmond River Council v Oshlack (1996) 39 NSWLR 622 there was no disentitling behaviour on the Council’s part. I adopt Mr Donnellan’s submissions in relation to this case, which I understand to represent the law on this aspect. In all the circumstances I do think it is appropriate that the Council get its costs.

3. I will make the declarations and orders as set out in the minutes of order handed up this morning by the parties, with the addition of the letter "A" at the end of order 4 and the plan being marked accordingly. I will also add order 6, that the Respondent pay the Applicant's costs as agreed or assessed and order 7, the exhibits may be returned.

Orders and declarations

The Court declares that:

1. The development, being the timber decking and ramp erected at the rear of the land being Lot 1 in Deposited Plan 201059 at 54 Coral crescent, Pearl Beach in the State of New South Wales, is not complying development.

2. The complying development certificate determined on 29 November 2001 by Jennifer Dallas, Accredited Certifier/Principal Certifying Authority No 6010, with respect to complying Development No 1011/01 relating to the Development is void and of no effect.

3. The Development is unlawful.

The Court orders that:

4. The Respondent be required to demolish so much of the timber deck and ramp as is seaward of the outer edge of the existing concrete patio attached to the rim of the dwelling as indicated on the attached plan "A".

5. The said demolition be carried out within three months of the date of these Orders.

6. The Respondent pay the Applicant's costs as agreed or assessed.

7. The exhibits may be returned.