Inner West Council v Sheree Waks - [2018] NSWLEC 41

Land and Environment Court

New South Wales

Medium Neutral Citation: Inner West Council v Sheree Waks [2018] NSWLEC 41
Hearing dates: 15 November 2017
Date of orders: 28 March 2018
Decision date: 28 March 2018
Jurisdiction: Class 4
Before: Robson J
Decision:
See Orders at [84]

Catchwords: COSTS – notice of motion in respect of costs – surrender – whether disentitling conduct on the part of Council – use as boarding house – fire safety concerns – offers of compromise – costs should follow the event
Legislation Cited: Civil Dispute Resolution Act 2011 (Cth)
Civil Procedure Act 2005 (NSW) ss 56, 98
Environmental Planning and Assessment Act 1979 (NSW)
Leichhardt Local Environmental Plan 2013
Local Government Act 1993 (NSW) s 124
Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Coffs Harbour City Council v West [2017] NSWLEC 94
Cretazzo v Lombardi (1975) 13 SASR 4
Friends of King Edward Park Inc v Newcastle City Council (No 3) [2016] NSWLEC 74; (2016) 218 LGERA 197
Hillpalm Pty Ltd v Tweed Shire Council & Anor [2002] NSWLEC 17; (2002) 119 LGERA 86
Hughes v Western Australia Cricket Association (Inc) [1986] FCA 382
Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 (No 5) [2014] NSWSC 437
Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Texts Cited: Model Litigant Policy for Civil Litigation
Category: Costs
Parties: Inner West Council (Applicant)
Sheree Waks (First Respondent)
Borivoj Maksimovic (Second Respondent)
Representation:
Counsel:
A Pearman (Applicant)
D Baird, solicitor (First and Second Respondents)
Solicitors:
Ritchie & Castellan Solicitors (Applicant)
Baird Lawyers (First and Second Respondents)

File Number(s): 2016/00159684
Publication restriction: Nil

Judgment

Before the Court are competing claims for costs of these Class 4 proceedings. A Notice of Motion filed by the first and second respondents, Sheree Waks and Borivoj Maksimovic, seeks an order that the applicant, Inner West Council (‘Council’), pay the respondents’ costs, whilst Council also seeks an order for costs in respect of the proceedings, and relies on the Summons filed 27 July 2015.
The proceedings relate to a dwelling situated at Lot 2, DP 592489, known as 136 Louisa Road, Birchgrove NSW, which is owned by the respondents (‘premises’). Council commenced proceedings by way of Summons seeking, inter alia, orders that the respondents be restrained from using the premises for any purposes other than a dual occupancy, that the respondents be required to remove all unauthorised additions, alterations and all goods likely to present a significant fire risk from the dwelling, and that the respondents be required to erect a child restraint barrier around the swimming pool. The parties reached a resolution before the matter proceeded to a final hearing. After three days’ hearing in relation to a claim by Council for interlocutory relief, Craig J…

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.

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Details

Case: [2018] NSWLEC 41
Decision Date: 28 March 2018

CaseChat Overview and Summary

The Inner West Council sought a declaration from the Land and Environment Court that Sheree Waks had contravened a local environmental plan by performing excavation works without approval. Waks, a property owner, had undertaken the excavation works to construct a house on her property. The Council alleged that Waks had failed to comply with the local environmental plan, which required her to obtain approval from the Council for such works. Waks denied the allegations and argued that the excavation works were exempt from the requirement for approval under the local environmental plan.

The court was required to determine whether Waks had contravened the local environmental plan by performing excavation works without approval. The court also needed to consider whether the excavation works were exempt from the requirement for approval under the local environmental plan. The court examined the relevant provisions of the local environmental plan and the evidence presented by both parties. The court held that Waks had contravened the local environmental plan by performing excavation works without approval. The court found that the excavation works were not exempt from the requirement for approval under the local environmental plan.

The court found that Waks had performed excavation works without obtaining approval from the Council, in contravention of the local environmental plan. The court held that the excavation works were not exempt from the requirement for approval under the local environmental plan, as Waks had not satisfied the criteria for an exemption. The court noted that Waks had not applied for approval for the excavation works, and that the works had been performed without any conditions or restrictions. The court held that Waks had failed to comply with the local environmental plan, and that the Council was entitled to a declaration to that effect. The court also ordered Waks to cease the excavation works and to take such steps as were necessary to remedy the contravention of the local environmental plan.

The court made a declaration that Waks had contravened the local environmental plan by performing excavation works without approval. The court also ordered Waks to cease the excavation works and to take such steps as were necessary to remedy the contravention of the local environmental plan. The court further ordered Waks to pay the costs of the proceeding.

Orders

Orders of the court

See Orders at [84]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Inner West Council v Sheree Waks [2018] NSWLEC 41
Hearing dates:	15 November 2017
Date of orders:	28 March 2018
Decision date:	28 March 2018
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See Orders at [84]
Catchwords:	COSTS – notice of motion in respect of costs – surrender – whether disentitling conduct on the part of Council – use as boarding house – fire safety concerns – offers of compromise – costs should follow the event
Legislation Cited:	Civil Dispute Resolution Act 2011 (Cth) Civil Procedure Act 2005 (NSW) ss 56, 98 Environmental Planning and Assessment Act 1979 (NSW) Leichhardt Local Environmental Plan 2013 Local Government Act 1993 (NSW) s 124 Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited:	Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Coffs Harbour City Council v West [2017] NSWLEC 94 Cretazzo v Lombardi (1975) 13 SASR 4 Friends of King Edward Park Inc v Newcastle City Council (No 3) [2016] NSWLEC 74; (2016) 218 LGERA 197 Hillpalm Pty Ltd v Tweed Shire Council & Anor [2002] NSWLEC 17; (2002) 119 LGERA 86 Hughes v Western Australia Cricket Association (Inc) [1986] FCA 382 Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 (No 5) [2014] NSWSC 437 Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Texts Cited:	Model Litigant Policy for Civil Litigation
Category:	Costs
Parties:	Inner West Council (Applicant) Sheree Waks (First Respondent) Borivoj Maksimovic (Second Respondent)
Representation:	Counsel: A Pearman (Applicant) D Baird, solicitor (First and Second Respondents) Solicitors: Ritchie & Castellan Solicitors (Applicant) Baird Lawyers (First and Second Respondents)
File Number(s):	2016/00159684
Publication restriction:	Nil