Hunter v Central Coast Council

[2017] NSWLEC 154

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hunter v Central Coast Council [2017] NSWLEC 154
Hearing dates:	20 September 2017, 20 November 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Class 1
Before:	Pain J
Decision:	(1) The Applicants’ Amended Notice of Motion dated 5 September 2017 is dismissed. (2) The Applicants are to pay the Council’s costs of the Amended Notice of Motion dated 5 September 2017. (3) The exhibits be returned.
Catchwords:	COSTS – not fair and reasonable to award partial costs in Class 1 proceedings – no extraneous purpose in challenge to voluntary planning agreement established – no failure to produce documents in timely fashion in circumstances - no failure to unreasonably pursue various contentions
Legislation Cited:	Civil Procedure Act 2005 s 56 Environmental Planning and Assessment Act 1979 ss 79C, 82A, 93F, 93H, 94, 94A, 97, 97B Gosford Planning Scheme Ordinance cl 49DN Heritage Act 1977 s 24 Land and Environment Court Act 1979 s 34 Land and Environment Court Rules 2007 r 3.7 State Environmental Planning Policy No 71 – Coastal Protection Uniform Civil Procedure Rules 2005 rr 1.9, 15.1
Cases Cited:	ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103 Boensch v Parramatta City Council (No 3) [2014] NSWLEC 15 Coolah Holdings Pty Ltd v Eurobodalla Shire Council (No 2) [2012] NSWLEC 84 Community Association DP270253 v Woollahra Municipal Council [2015] NSWCA 80; 207 LGERA 268 Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Norman McDonald & Anor v Central Coast Council [2017] NSWLEC 1207 Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299
Category:	Costs
Parties:	Norman Augustus McDonald Hunter (First Applicant) Beth Janine Hunter (Second Applicant) Central Coast Council (Respondent)
Representation:	COUNSEL: P Tomasetti SC and A Hemmings (Applicants) A Galasso and M Staunton (Respondent)   SOLICITORS: Conditsis Lawyers (Applicants) Marsdens (Respondent)
File Number(s):	16/155633

Judgment

Costs in class 1 appeal

1. The Applicants Mr and Mrs Hunter were successful in a Class 1 appeal in gaining development consent for alterations and additions to the existing Avoca Beach Theatre for mixed-use development, Norman McDonald & Anor v Central Coast Council [2017] NSWLEC 1207 (the Commissioner’s judgment). The Applicants seek part of their costs of that appeal pursuant to r 3.7 of the Land and Environment Court Rules 2007 (Court Rules) together with the costs of their Amended Notice of Motion dated 5 September 2017. The costs application is opposed by the Respondent Central Coast Council which seeks its costs of the Motion. The costs hearing was set down for one day but required two days. The Applicants’ Motion seeks all the costs of the proceedings. The Applicants’ senior counsel advised on the second day of hearing that the costs sought were as identified in the affidavit of Ms Huscroft solicitor affirmed on 11 July 2017 namely…