Minas v Botany Municipal Council - [1988] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION: Minas v Botany Municipal Council [1988] NSWLEC 131

PARTIES:
APPLICANT
Minus
RESPONDENT
Botany Municipal Council

FILE NUMBER(S): 10622 of 1987

CORAM: Bignold J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act

CASES CITED: Kremer & Associates v. North Sydney Municipal Council (1982;
McDonald Industries Ltd. v. Sydney City Council (1980)) ;
Quota Corporation v. Leichhardt Municipal Council (1981);
McCalden v. Newcastle City Council (1983)

DATES OF HEARING:

DATE OF JUDGMENT:
05/31/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: The Applicant by Notice of Motion seeks an Order that the Respondent pay his costs of a successful appeal brought in class 1 proceedings in this Court.

The Application for costs is made in accordance with the Court's Practice Direction No. 12 dated 16th November, 1987 which is in the following terms:-

"12. The practice of the Court is that no order for costs is made in Planning and Building Appeals unless the circumstances are exceptional.

As from this date a direction made by the Chief Judge that proceedings be heard by one or more assessors shall be interpreted as being a direction to hear the whole of the matter other than any question of costs.

Any application for costs should be made by notice of motion within 14 days of publication of the judgment."

The class 1 proceedings involved an appeal under s.97 of the Environmental Planning and Assessment Act against the decision of the Respondent refusing development consent to an application to convert an existing single storey dwelling situate at No. 4 Begonia Street, Pagewood into a dual occupancy involving a first floor addition to, and brick-veneering of, the existing dwelling.

The Respondent's refusal of development consent as notified to the Applicant was based upon the following reasons:-

"1. The proposed development is likely to have an adverse effect on adjoining properties by virtue of loss of sunlight, overshadowing and loss of views.

2. Unsatisfactory submissions have been received from the general public, concerning the subject development.

3. The proposed development is likely to have an adverse impact on the existing and likely future amenity of the neighbourhood.

4. The circumstances of the case, and the public interest in that Council cannot be assured that the 1980 and 1990 ANEF Plans accurately portray the 25 ANEF."

These were the issues debated before the Assessor at the hearing of the case which lasted 2 days. At the conclusion of the hearing the Assessor pronounced the Orders of the Court allowing the appeal and granting development consent (subject to conditions agreed upon by the parties) and delivered ex tempore reasons for judgment.

In seeking an order for costs Counsel for the successful Applicant accepts the existing state of authority in this Court on the question of costs in class 1 and class 2 proceedings. Thus he accepts the Court's practice as set out in Practice Direction No. 12 and undertakes the burden of establishing "exceptional circumstances" so as to justify an order for…

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: [1988] NSWLEC 131
Decision Date: 05/31/1988

CaseChat Overview and Summary

In Minas v Botany Municipal Council, the applicant sought an order that the council pay his costs of a successful appeal brought in class 1 proceedings. The appeal was against the council's decision to refuse development consent for an application to convert an existing single storey dwelling into a dual occupancy. The council's refusal was based on the grounds that the proposed development would have an adverse effect on adjoining properties by virtue of loss of sunlight, overshadowing, and loss of views. The applicant argued that the council had misunderstood and misconceived the mid-summer shadow impact of the proposed development on the adjoining property, leading to an erroneous decision. The court found that the council's mistake concerning the shadow impact was a very material one and that it had influenced the council's decision to refuse development consent. The court concluded that had the council correctly appreciated the shadow impact of the proposed development, it would not have refused development consent, and the litigation in the court would have been avoided. Therefore, the applicant had established "exceptional circumstances" warranting the award of costs in accordance with the court's practice. The court ordered the council to pay the applicant's costs of the appeal proceedings in the court and the costs of the notice of motion.

The legal issues in this case were whether the applicant had established "exceptional circumstances" to warrant an order for costs and whether the council's erroneous understanding of the shadow impact of the proposal was the real and substantial reason for its decision to refuse development consent. The court found that the applicant had indeed established "exceptional circumstances" and that the council's erroneous understanding of the shadow impact was the real and substantial reason for its decision to refuse development consent. Therefore, the court granted the applicant's notice of motion with costs.

Orders