Hooper v Port Stephens Council (No 3) - [2010] NSWLEC 178

Reported Decision: 176 LGERA 97

Land and Environment Court

of New South Wales

CITATION: Hooper v Port Stephens Council and Anor (No 3) [2010] NSWLEC 178

PARTIES: APPLICANT
Stephen James Hooper
FIRST RESPONDENT
Port Stephens Council
SECOND RESPONDENT
Trevlyn Peter Hallett

FILE NUMBER(S): 40010 of 2010

CORAM: Pain J

KEY ISSUES: COSTS :- whether both successful respondents in class 4 proceedings should be awarded costs - whether proceedings brought in the public interest - whether indemnity costs ought be awarded

LEGISLATION CITED: Civil Procedure Act 2005 s 98
Land and Environment Court Rules 2007 r 4.2, r 4.3
Port Stephens Development Control Plan 2007
Port Stephens Local Environmental Plan 2000
State Environmental Planning Policy No 1
Uniform Civil Procedure Rules 2005 r 42.1

CASES CITED: Australiawide Airlines Ltd t/as Regional Express v Aspirion Pty Ltd [2006] NSWCA 365
Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280
Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365
Forsyth & Anor v Wilesmith & Ors (No 2) [2008] NSWLEC 260
Gray v Macquarie Generation (No 2) [2010] NSWLEC 82
Hooper v Port Stephens Council [2009] NSWLEC 234
Hooper v Port Stephens Council & Hallett [2010] NSWLEC 41
Hooper v Port Stephens Council and Anor [2010] NSWLEC 107
Hooper v Port Stephens Council and Anor (No 2) [2010] NSWLEC 112
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 17; (2006) 143 LGERA 268
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
North Cronulla Precinct Committee Inc v Sutherland Shire Council [1998] NSWLEC 171
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Warringah Council v Sedevcic [1998] NSWLEC 171; (1987) 10 NSWLR 335
Westfield Management Limited & Ors v Direct Factory Outlets Homebush Pty Ltd (No 4) [2005] NSWLEC 168

DATES OF HEARING: 15 September 2010

DATE OF JUDGMENT:
24 September 2010

LEGAL REPRESENTATIVES: APPLICANT
In person
FIRST RESPONDENT
Mr M Fraser
SOLICITORS
Harris Wheeler
SECOND RESPONDENT
Mr P Larkin
SOLICITORS
Equilaw Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

24 September 2010

40010 of 2010 Hooper v Port Stephens Council and Anor (No 3)
JUDGMENT

1 Her Honour: I dismissed the Applicant Mr Hooper’s judicial review proceedings in Hooper v Port Stephens Council and Anor (No 2) [2010] NSWLEC 112 (Hooper No 2). Costs remain for determination. Both Respondents seek their costs including on an indemnity basis from certain dates. The First Respondent, Port Stephens Council (the Council), granted development consent for a house to the Second Respondent on land in Port Stephens which is the subject of the Mr Hooper’s judicial review challenge. Both Respondents played an active role in the substantive hearing. Mr Hooper opposes any costs order on the basis that these are proceedings taken in 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.

Keep reading for free

Create a free CaseChat account to read Hooper v Port Stephens Council (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWLEC 178
Decision Date: 24 September 2010

CaseChat Overview and Summary

The applicant, Mr. Hooper, brought a Class 4 proceeding against the Port Stephens Council and Mr. Hallett, the owner of the land in question, challenging the approval of a development consent. The Land and Environment Court dismissed the applicant's judicial review proceedings in Hooper v Port Stephens Council and Anor (No 2) [2010] NSWLEC 112. The court was required to decide whether both successful respondents should be awarded costs, whether the proceedings were brought in the public interest, and whether indemnity costs should be awarded. The court found that while the Council and the Second Respondent were proper parties, it was preferable for only one respondent to play an active role in judicial proceedings concerning the challenge to a development consent. Both respondents were awarded their costs, but the court determined that the proceedings were not public interest litigation and therefore, the usual costs rule applied. The court also found that while the applicant unreasonably refused the offer of settlement, his behaviour was not so unreasonable as to warrant an award of indemnity costs. The court ordered the applicant to pay the costs of both respondents and the costs of the hearing on costs on 15 September 2010. The orders are not to be enforced for a period of 12 months for the Council and 6 months for the Second Respondent from the date of the order.

Orders