Kennedy v Woollahra Municipal Council

Land and Environment Court

of New South Wales

CITATION:
Kennedy & Anor v Woollahra Municipal Council [2005] NSWLEC 226

PARTIES:
Tom Kennedy (Appl)
Ben Raymond (Appl)
Woollahra Municipal Council (Resp)

FILE NUMBER(S):
10824 of 2002

CORAM:
McClellan CJ

KEY ISSUES:
Costs :- fair and reasonable costs
Work done by court appointed expert beyond the assessment of the plans
Concur with the Commissioner in the making of the order for costs

DATE OF JUDGMENT:

07/22/2005

EX TEMPORE JUDGMENT DATE:
03/04/2005

LEGAL REPRESENTATIVES:

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

FRIDAY, 22 JULY 2005

10824/02 KENNEDY & ORS v WOOLLAHRA MUNICIPAL COUNCIL
JUDGMENT: Reasons for judgment on concurrence

1 HIS HONOUR: In this matter I have considered the reasons why Commissioner Tuor is of the opinion that an order for costs should be made.

2 Essential to the Commissioner's reasons is the fact that the applicant, by being granted leave to rely upon amended plans, is the beneficiary of work done by the court appointed expert beyond the assessment of the plans, the subject of the original application.

3 The Court has recently changed its general approach to amended plans and will, provided the interests of the council and any objectors are adequately protected, generally allow a party to bring forward amended plans for consideration in the appeal.

4 However, apart from ensuring that the hearing is fair it is also necessary to recognise that particularly, when a court expert is appointed the council may incur costs beyond those which it should reasonably be expected to bear in consideration of the appeal.

5 The Court will be concerned in every case to ensure that where a council could be disadvantaged in this way by an acceptance of amended plans an appropriate order for costs is made.

6 I am satisfied, for the reasons expressed by Commissioner Tuor, that the order she proposes is appropriate in this case and accordingly I concur in the making of that order.

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CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Kennedy & Anor v Woollahra Municipal Council was heard by McClellan CJ. The applicants, Tom Kennedy and Ben Raymond, contested a decision made by Woollahra Municipal Council. The primary issue before the court was the appropriateness of awarding costs, specifically whether the council should bear the costs associated with the work done by a court-appointed expert beyond the initial assessment of the plans. The court also needed to decide whether it should concur with the Commissioner's proposed order for costs.

The court's reasoning focused on the evolving approach to amended plans and the potential for disproportionate costs to be imposed on the council. McClellan CJ noted that the court's recent shift in policy allows for amended plans to be considered in an appeal, provided that the interests of the council and objectors are protected. However, the court must also ensure that the council is not unfairly burdened with costs that go beyond what is reasonably expected, especially when a court expert is involved. The court expressed its commitment to ensuring fairness and to making appropriate cost orders in cases where the council might be disadvantaged by the acceptance of amended plans. The judge concluded that the proposed cost order by Commissioner Tuor was appropriate and concurred with it.

The final orders of the court are not detailed in the excerpt but would likely include the concurrence with the Commissioner's proposed order for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Kennedy & Anor v Woollahra Municipal Council [2005] NSWLEC 226
PARTIES:	Tom Kennedy (Appl) Ben Raymond (Appl) Woollahra Municipal Council (Resp)
FILE NUMBER(S):	10824 of 2002
CORAM:	McClellan CJ
KEY ISSUES:	Costs :- fair and reasonable costs Work done by court appointed expert beyond the assessment of the plans Concur with the Commissioner in the making of the order for costs
DATE OF JUDGMENT:	07/22/2005
EX TEMPORE JUDGMENT DATE:	03/04/2005
LEGAL REPRESENTATIVES: