Khouri v Burwood Council - [2001] NSWLEC 278

Land and Environment Court

of New South Wales

CITATION: Khouri v Burwood Council & Anor [2001] NSWLEC 278

PARTIES:
APPLICANT
Khouri
FIRST RESPONDENT
Burwood Council
SECOND RESPONDENT
Minister Administering the Environmental Planning and Assessment Act 1979

FILE NUMBER(S): 10673 of 2001

CORAM: Cowdroy J

KEY ISSUES: Costs :- discontinuance

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 88A
Land and Environment Court Act 1979 s 69
Land and Environment Court Practice Direction 1993 par [10]
Part 11 r 5(1) of the Land and Environment Court Rules 1996

CASES CITED: David Crane and Associates Pty Limited v Kogarah Council [1998] NSWLEC 121;
Duncan v Moore (2000) 107 LGERA 430;
Hayden Theatres Pty Limited v Penrith City Council (1999) 105 LGERA 230;
Khouri v Burwood Council & Anor [2001] NSWLEC 124;
Manly Wharf Pty Limited v Manly Council (1997) 98 LGERA 245;
Oshlack v Richmond River Council [1998) 193 CLR 72;
Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254;
The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia: Ex parte Lai Quin (1997) 186 CLR 622

DATES OF HEARING: 6/12/01

EX TEMPORE
JUDGMENT DATE :
12/06/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Sahade (Barrister)
SOLICITORS
N/A
FIRST RESPONDENT
Mr R K Graham (Solicitor)
SOLICITORS
Abbott Tout
SECOND RESPONDENT
Mr M Doherty (Solicitor)
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10673 of 2000
CORAM: Cowdroy J
DECISION DATE: 6/12/01

George Khouri

Burwood Council

Minister administering the Environmental Planning and Assessment Act 1979

JUDGMENT

1. By Notice of Motion filed on 17 August 2000 the second respondent (“the Minister”) seeks an order from the Court that the applicant pay the costs of the Minister thrown away as a result of the discontinuance of an application class one (“the appeal”) lodged with the Court on 13 July 2000.

2. By Notice of Motion filed on 20 August the first respondent (“the council”) seeks a similar order in relation to the costs thrown away as a result of the discontinuance of the appeal.

3. On 2 February 2000 the applicant lodged development application 30/00 (“the application”) with the council. The application was for a mixed residential and commercial building with underground basement car parking located at Lot 13 in DP 736048 or 13 Railway Parade, Burwood (“the site”).

4. The application was considered by the council at a meeting on 4 July 2000. The council adjourned consideration of the application to prepare appropriate conditions on the consent. Shortly thereafter the Minister called in the application pursuant to s 88A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). Pursuant to s 88A(2)(a) of the EP&A Act the Minister thereby became the consent authority for the application.

5. As a result of negotiations between the Minister and the applicant hearing dates of 10 – 12 January 2001 were vacated by consent to allow the applicant to make…

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: [2001] NSWLEC 278
Decision Date: 12/06/2001

CaseChat Overview and Summary

In the matter of Khouri v Burwood Council, the Land and Environment Court of New South Wales was asked to determine whether the applicant, George Khouri, should pay the costs incurred by the Burwood Council and the Minister Administering the Environmental Planning and Assessment Act 1979 following the discontinuance of an appeal. The appeal in question concerned a development application that Khouri had lodged with the Burwood Council for a mixed residential and commercial building with underground basement car parking. The Minister subsequently called in the application and became the consent authority.

The legal issues the Court had to address were primarily centered on the costs associated with the discontinuance of the appeal. The Court had to determine whether the discontinuance was reasonable and if the applicant's conduct justified the costs incurred by the other parties. The Court's reasoning was based on the principles of reasonableness and the exceptional circumstances required to warrant a costs order. The Court examined whether the applicant's pursuit of the appeal, amidst ongoing negotiations with the Minister and the Council, was reasonable. The Court noted that the negotiations and the impending court hearing likely contributed to the resolution that led to a fresh development application being approved by the Council.

The Court concluded that the applicant's conduct in maintaining the appeal while negotiations were ongoing was not unreasonable. The negotiations with the Minister and the Council, and the eventual compromise that led to the approval of a new development application, indicated that the litigation was a necessary part of the resolution process. Given the circumstances, the Court found no basis to treat the applicant's conduct as unreasonable or exceptional. Therefore, the Court dismissed the notices of motion from both the Burwood Council and the Minister, making no order as to costs.

Orders