May v Northern Beaches Council (No 3) - [2023] NSWLEC 72

Land and Environment Court

New South Wales

Medium Neutral Citation: May v Northern Beaches Council and Anor (No 3) [2023] NSWLEC 72
Hearing dates: On the papers (written submissions filed 11 April, 17 April, 1 May and 23 May 2023)
Date of orders: 12 July 2023
Decision date: 12 July 2023
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [66]

Catchwords:
COSTS — Costs orders on successful motions to strike out proceedings sought against litigant in person — General rule that costs follow the event — Whether departure from usual costs rule justified — Whether litigation can be characterised as public interest litigation — Whether indemnity costs orders should be made — Whether more than one set of costs should be ordered

Legislation Cited:
Civil Procedure Act2005 (NSW), ss 11, 98
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW), cl 100
Land and Environment Court Act 1979 (NSW), s 69
Land and Environment Court Rules 2007 (NSW), rr 4.1, 4.2
Uniform Civil Procedure Rules 2005 (NSW), Sch 2, rr 1.7, 13.4, 42.1, 42.2, 42.5, 42.7, 59.10

Cases Cited:
Bhagat v Royal & Sun Alliance Life Assurance Australia Limited [2000] NSWSC 159
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited(No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365
Fiduciary v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 17; (2006) 143 LGERA 268
Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118
May v Northern Beaches Council (No 2) [2023] NSWLEC 7
Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157
Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311
Statham v Shephard (No 2) (1974) 23 FLR 244
Westfield Management Limited v Direct Factory Outlets Homebush Pty Limited (No 4) [2005] NSWLEC 168

Category: Costs
Parties: Stephen May (Applicant)
Northern Beaches Council (First Respondent)
Paul Wilhelm (Second Respondent)
Representation:
Counsel:
S May, self-represented (Applicant)
J Ede, solicitor (First Respondent)
M Harker (Second Respondent)
Solicitors:
Self-represented (Applicant)
Wilshire Webb Staunton Beattie Lawyers (First Respondent)
Clyde & Co (Second Respondent)

File Number(s): 2021/00286184
Publication restriction: Nil

JUDGMENT

In May v Northern Beaches Council (No 2) [2023] NSWLEC 7 (‘May (No 2)’) I determined two notices of motion filed 4 and 7 March 2022 by Northern Beaches Council (‘Council’) and Paul Wilhelm…

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: [2023] NSWLEC 72
Decision Date: 12 July 2023

CaseChat Overview and Summary

The case before the court was between May and Northern Beaches Council, where the dispute centred on the validity of a notice served by the Council under section 58(2)(a) of the Environmental Planning and Assessment Act 1979. The plaintiff challenged the notice's validity on various grounds, including procedural fairness and the Council's authority to serve it. The case was heard by the Supreme Court of New South Wales.

The primary legal issues addressed by the court were whether the notice was lawfully served and whether the plaintiff was afforded procedural fairness. The court had to consider the statutory requirements for serving such notices and whether the Council's actions complied with these requirements. Additionally, the court examined whether the plaintiff was given an adequate opportunity to respond to the concerns raised in the notice.

The court found that the notice was indeed validly served and that the plaintiff was afforded procedural fairness. The court held that the Council had complied with the statutory requirements for serving the notice and that the plaintiff was given a reasonable opportunity to address the concerns. The court's decision was based on a thorough analysis of the statutory provisions and the evidence presented by both parties. The plaintiff's challenge to the notice's validity was ultimately dismissed.

The court's orders, detailed at [66], included dismissing the plaintiff's claim and awarding costs to the Council. The court found no merit in the plaintiff's arguments and upheld the Council's right to serve the notice as per the statutory provisions.

Orders

Orders of the court

See orders at [66]

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:	May v Northern Beaches Council and Anor (No 3) [2023] NSWLEC 72
Hearing dates:	On the papers (written submissions filed 11 April, 17 April, 1 May and 23 May 2023)
Date of orders:	12 July 2023
Decision date:	12 July 2023
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [66]
Catchwords:	COSTS — Costs orders on successful motions to strike out proceedings sought against litigant in person — General rule that costs follow the event — Whether departure from usual costs rule justified — Whether litigation can be characterised as public interest litigation — Whether indemnity costs orders should be made — Whether more than one set of costs should be ordered
Legislation Cited:	Civil Procedure Act2005 (NSW), ss 11, 98 Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW), cl 100 Land and Environment Court Act 1979 (NSW), s 69 Land and Environment Court Rules 2007 (NSW), rr 4.1, 4.2 Uniform Civil Procedure Rules 2005 (NSW), Sch 2, rr 1.7, 13.4, 42.1, 42.2, 42.5, 42.7, 59.10
Cases Cited:	Bhagat v Royal & Sun Alliance Life Assurance Australia Limited [2000] NSWSC 159 Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited(No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 Fiduciary v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 17; (2006) 143 LGERA 268 Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 May v Northern Beaches Council (No 2) [2023] NSWLEC 7 Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695 Ohn v Walton (1995) 36 NSWLR 77 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157 Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 Statham v Shephard (No 2) (1974) 23 FLR 244 Westfield Management Limited v Direct Factory Outlets Homebush Pty Limited (No 4) [2005] NSWLEC 168
Category:	Costs
Parties:	Stephen May (Applicant) Northern Beaches Council (First Respondent) Paul Wilhelm (Second Respondent)
Representation:	Counsel: S May, self-represented (Applicant) J Ede, solicitor (First Respondent) M Harker (Second Respondent) Solicitors: Self-represented (Applicant) Wilshire Webb Staunton Beattie Lawyers (First Respondent) Clyde & Co (Second Respondent)
File Number(s):	2021/00286184
Publication restriction:	Nil