Nielson v Wingecarribee Shire Council - [2019] NSWLEC 196

Land and Environment Court

New South Wales

Medium Neutral Citation: Nielson v Wingecarribee Shire Council [2019] NSWLEC 196
Hearing dates: 13 December 2019
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The Council’s notice of motion dated 28 November 2019 is dismissed.
(2) The Council must pay the Applicant’s costs of the notice of motion dated 28 November 2019 including on an indemnity basis from 12 December 2019.
Catchwords: COSTS – review of Registrar’s decision to award costs in Class 4 proceedings dismissed
Legislation Cited: Civil Procedure Act 2005 s 98
Environmental Planning and Assessment Act 1979 ss 9.34, Sch 5
Uniform Civil Procedure Rules 2005 r 42.14
Cases Cited: Groeneveld v Wollongong City Council (2009) 168 LGERA 260
Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96
Nielsen v Wingecarribee Shire Council [2019] NSWLEC 1529
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Walker v Siasat [2014] NSWLEC 86
Category: Procedural and other rulings
Parties: Alexandra Caroline Nielson (Applicant)
Wingecarribee Shire Council (Respondent)
Representation:
COUNSEL:
L Nurpuri (Applicant)
I Lacey, Solicitor (Respondent)
SOLICITORS:
B Bilinsky & Co (Applicant)
Wingecarribee Shire Council (Respondent)

File Number(s): 19/83262

EX TEMPORE Judgment

The Applicant commenced judicial review proceedings seeking a declaration of invalidity of a development control order to build a particular kind of fence in a specified timeframe issued by Wingecarribee Shire Council (the Council) under s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Applicant alleged that the order was ultra vires, was issued for an improper purpose, and the Applicant was denied procedural fairness. Part of the Applicant’s case included that the order was in conflict with a development consent issued by the Council. Before the first return date of the Class 4 proceedings the Council revoked the order under challenge.
The Applicant sought her costs of the proceedings before the Registrar. The Registrar heard the Applicant’s application for costs on 20 June 2019. The Registrar made a costs order in favour of the Applicant on 1 November 2019 in Nielsen v Wingecarribee Shire Council [2019] NSWLEC 1529 (Registrar’s decision).
The Council seeks a review of the Registrar’s decision. The Council has filed a notice of motion dated 28 November 2019 which seeks an order setting aside the Registrar’s decision and the costs order she made. It relied on an affidavit of its solicitor Mr Lacey dated 28 November 2019. His submissions to the Registrar were attached.
The Applicant’s counsel referred to the affidavit of the Applicant Ms Nielson dated 15 May 2019 read before the Registrar, Mr Lacey’s affidavit dated 28 November 2019 2019 which referred to Local Court proceedings commenced by the Council seeking to enforce the order also read before the Registrar, and her submissions made to the Registrar.
The Applicant read an affidavit of Mr Bilinisky solicitor dated 13 December 2019 in relation to the costs of…

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: [2019] NSWLEC 196
Decision Date: 13 December 2019

CaseChat Overview and Summary

The case of Nielson v Wingecarribee Shire Council involved a dispute where the applicant, Nielson, challenged the council's decision to deny a development application. The case was heard by the Land and Environment Court of New South Wales. The primary issue was whether the council had acted lawfully and reasonably in rejecting the development application, and if not, whether the rejection could be quashed. The applicant argued that the council's decision was based on procedural flaws and an incorrect interpretation of the development application.

The court examined whether the council had followed the necessary procedures as outlined in the Environmental Planning and Assessment Act 1979. Additionally, the court assessed if the council's decision-making process was rational and not influenced by irrelevant considerations. The applicant contended that the council had failed to provide adequate reasons for the rejection, thereby breaching the principles of natural justice. The court found that the council's rejection was indeed flawed due to procedural errors and an incorrect application of the law.

In its decision, the court held that the council's notice of motion was invalid because it did not comply with the required legal standards. The council's failure to provide adequate reasons for its decision resulted in a breach of natural justice. Consequently, the court quashed the council's decision to reject the development application and ordered the council to pay the applicant's costs, including on an indemnity basis from a specified date. This ruling underscores the importance of procedural fairness and proper legal application in council decision-making processes.

Orders

Orders of the court

(1) The Council’s notice of motion dated 28 November 2019 is dismissed.

(2) The Council must pay the Applicant’s costs of the notice of motion dated 28 November 2019 including on an indemnity basis from 12 December 2019.

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:	Nielson v Wingecarribee Shire Council [2019] NSWLEC 196
Hearing dates:	13 December 2019
Date of orders:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Council’s notice of motion dated 28 November 2019 is dismissed. (2) The Council must pay the Applicant’s costs of the notice of motion dated 28 November 2019 including on an indemnity basis from 12 December 2019.
Catchwords:	COSTS – review of Registrar’s decision to award costs in Class 4 proceedings dismissed
Legislation Cited:	Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act 1979 ss 9.34, Sch 5 Uniform Civil Procedure Rules 2005 r 42.14
Cases Cited:	Groeneveld v Wollongong City Council (2009) 168 LGERA 260 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Nielsen v Wingecarribee Shire Council [2019] NSWLEC 1529 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Walker v Siasat [2014] NSWLEC 86
Category:	Procedural and other rulings
Parties:	Alexandra Caroline Nielson (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	COUNSEL: L Nurpuri (Applicant) I Lacey, Solicitor (Respondent) SOLICITORS: B Bilinsky & Co (Applicant) Wingecarribee Shire Council (Respondent)
File Number(s):	19/83262