Newcastle City Council v Wescombe

New South Wales

Court of Appeal

CITATION:	Newcastle City Council v Wescombe [2009] NSWCA 265
HEARING DATE(S):	24/07/09
JUDGMENT OF:	McColl JA at [19] and [27]; Campbell JA at [20]-[26]; Young JA at [1]-[18]
EX TEMPORE JUDGMENT DATE:	24 July 2009
DECISION:	Leave to appeal refused with costs.
CATCHWORDS:	PROCEDURE - costs- appeals as to costs- leave required- applicant Council sought to reverse costs orders made against it in Land and Environment Court- Class 4 proceedings in Land and Environment Court brought by Council had been partly settled and otherwise dismissed- application of UCPR- Calderbank letter- leave to appeal refused. - PROCEDURE - costs- jurisdiction- courts of limited jurisdiction.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 123, 124 Land and Environment Court Act 1979, s 58(3)(c) Supreme Court Act 1970 Uniform Civil Procedure Rules 2005, r42.1, r42.20
CASES CITED:	Kiama Council v Grant (2006) 143 LGERA 441 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 Thomson Australian Holdings Pty Limited v Trade Practices Commission [1981] HCA 48; 148 CLR 150
PARTIES:	Newcastle City Council (Applicant) Rebecca Alice Wescombe (Respondent)
FILE NUMBER(S):	CA 40079/09
COUNSEL:	T F Robertson SC and M Hall (Applicant) G Carolan (Respondent)
SOLICITORS:	Sparke Helmore, Newcastle (Applicant) Bilbie Dan, Newcastle (Respondent)
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	40471/07
LOWER COURT JUDICIAL OFFICER:	Pain J
LOWER COURT DATE OF DECISION:	19 January 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	[2008] NSWLEC 301; [2008] NSWLEC 324

CA 40079/09

McCOLL JA
CAMPBELL JA
YOUNG JA

Friday 24 July 2009
NEWCASTLE CITY COUNCIL v REBECCA ALICE WESCOMBE

Judgment

1 YOUNG JA: This is the concurrent hearing of an application for leave to appeal and, if leave is granted, the hearing of an appeal by the applicant against a decision of her Honour Justice Pain in the Land and Environment Court of New South Wales on a question of costs. Leave is required because only a question of costs is involved.

2 The basal facts are that the applicant commenced class 4 proceedings in the Land and Environment Court seeking, (1) a declaration that the respondent had breached the Environmental Planning and Assessment Act 1979 (the “EP & A Act”) with respect to works carried out in Nesca Parade, The Hill (in the Newcastle Local Government Area) without development consent; and (2) orders for remediation.

3 The respondent’s case was that she was not in breach and in all the circumstances did not require development consent, and indeed that what needed to be done required co-operation between herself, neighbouring owners and the Hunter Water Board.

4 I am not in a position to discuss fully the underlying facts or the extent of the dispute between the parties, but it would appear that there had been a landslide in the area in question, how that was caused was a matter of debate, and what was necessary restorative work and who should do it were also…