Loder v Narrabri Shire Council (No 2) - [2021] NSWLEC 33

Land and Environment Court

New South Wales

Medium Neutral Citation: Loder v Narrabri Shire Council (No 2) [2021] NSWLEC 33
Hearing dates: 15, 23 February 2021 (written submissions)
Date of orders: 15 April 2021
Decision date: 15 April 2021
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The Applicant is to pay the Council’s costs of the substantive proceedings.
(2) The Applicant is to pay the Council’s costs of the costs hearing.
(3) The exhibits are returned.

Catchwords:
COSTS – unsuccessful applicant in Class 4 proceedings seeking variation of usual costs order on basis that public interest litigation – vacancy in civic office of counsellor following absence from three consecutive council meetings – “something more” identified in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 not demonstrated – usual costs order made

Legislation Cited:
Land and Environment Court Rules 2007 (NSW) r 4.2
Local Government Act 1919 (NSW)
Local Government Act 1993 (NSW) ss 232, 234, 355, Ch 12 Pt 2 Div 2 (s 360)
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
Anderson on behalf of Numbahjing Clan within Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132; [2008] NSWLEC 272
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 280 ALR 91; [2011] FCAFC 84
Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; [2004] NSWLEC 434
Local Democracy Matters Inc v Infrastructure NSW (No 2) [2019] NSWCA 118
Local Democracy Matters Inc v Infrastructure NSW; Waverley Council v Infrastructure NSW (No 4) [2019] NSWLEC 140
Loder v Narrabri Shire Council [2020] NSWLEC 109
Millers Point Fund Inc v Lendlease (Millers Point) Pty Ltd (No 2) [2017] NSWLEC 29
Oshlack v Richmond River Shire Council (1994) 82 LGERA 236
People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157
Ryan v Heiler (1990) 69 LGRA 307

Category: Costs
Parties: Ann Loder (Applicant)
Narrabri Shire Council (Respondent)
Representation:
COUNSEL:
R White (Applicant)
J Lazarus SC (Respondent)
SOLICITORS:
Crennan Legal (Applicant)
Local Government Legal (Respondent)

File Number(s): 20/155016

Judgment

The Applicant Ms Loder commenced proceedings challenging the decision of Narrabri Shire Council (the Council) to consider that her position as an elected councillor was vacant resulting in various breaches of the Local Government Act 1993 (NSW) (LG Act). In Loder v Narrabri Shire Council [2020] NSWLEC 109 (Loder No 1) I dismissed the Applicant’s summons and reserved costs. The principal legal issue in Loder No 1 concerned the construction of sections of the LG Act dealing with the vacation of elected councillor positions as a result of absences from council meetings. The Applicant seeks an…

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 Loder v Narrabri Shire Council (No 2) 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: [2021] NSWLEC 33
Decision Date: 15 April 2021

CaseChat Overview and Summary

The case of Loder v Narrabri Shire Council (No 2) involved a dispute between the Applicant, Loder, and the Respondent, Narrabri Shire Council. The Applicant sought to appeal a decision by the Council regarding a proposed subdivision of land. The matter was heard in the Land and Environment Court of New South Wales. The Applicant contested the Council's refusal to approve a subdivision plan, arguing that the decision was unreasonable and not based on relevant considerations.

The primary legal issues before the court were whether the Council's decision was lawful and whether the Applicant's appeal was valid. The court had to determine whether the Council's decision was made in accordance with the relevant planning legislation and if the decision-making process was fair and transparent. Additionally, the court needed to assess whether the Applicant's appeal was properly grounded and if the court had jurisdiction to hear it.

In delivering the judgment, the court found that the Council's decision was lawful and based on relevant considerations. The court held that the decision-making process was fair and transparent, and the Council had adequately considered the relevant planning policies and guidelines. The court further determined that the Applicant's appeal was not well-founded and lacked merit. Consequently, the court dismissed the Applicant's appeal and ordered that the Applicant pay the Council’s costs of the substantive proceedings and the costs hearing. The exhibits were also ordered to be returned.

Orders

Orders of the court

(1) The Applicant is to pay the Council’s costs of the substantive proceedings.

(2) The Applicant is to pay the Council’s costs of the costs hearing.

(3) The exhibits are returned.

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:	Loder v Narrabri Shire Council (No 2) [2021] NSWLEC 33
Hearing dates:	15, 23 February 2021 (written submissions)
Date of orders:	15 April 2021
Decision date:	15 April 2021
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Applicant is to pay the Council’s costs of the substantive proceedings. (2) The Applicant is to pay the Council’s costs of the costs hearing. (3) The exhibits are returned.
Catchwords:	COSTS – unsuccessful applicant in Class 4 proceedings seeking variation of usual costs order on basis that public interest litigation – vacancy in civic office of counsellor following absence from three consecutive council meetings – “something more” identified in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 not demonstrated – usual costs order made
Legislation Cited:	Land and Environment Court Rules 2007 (NSW) r 4.2 Local Government Act 1919 (NSW) Local Government Act 1993 (NSW) ss 232, 234, 355, Ch 12 Pt 2 Div 2 (s 360) Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited:	Anderson on behalf of Numbahjing Clan within Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132; [2008] NSWLEC 272 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 280 ALR 91; [2011] FCAFC 84 Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; [2004] NSWLEC 434 Local Democracy Matters Inc v Infrastructure NSW (No 2) [2019] NSWCA 118 Local Democracy Matters Inc v Infrastructure NSW; Waverley Council v Infrastructure NSW (No 4) [2019] NSWLEC 140 Loder v Narrabri Shire Council [2020] NSWLEC 109 Millers Point Fund Inc v Lendlease (Millers Point) Pty Ltd (No 2) [2017] NSWLEC 29 Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157 Ryan v Heiler (1990) 69 LGRA 307
Category:	Costs
Parties:	Ann Loder (Applicant) Narrabri Shire Council (Respondent)
Representation:	COUNSEL: R White (Applicant) J Lazarus SC (Respondent) SOLICITORS: Crennan Legal (Applicant) Local Government Legal (Respondent)
File Number(s):	20/155016