Noun v Sutherland Shire Council (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation:

Noun v Sutherland Shire Council (No 2) [2012] NSWLEC 39

Hearing dates:

12 March 2012

Decision date:

13 March 2012

Jurisdiction:

Class 1

Before:

Pain J

Decision:

1. The Council is to pay the Applicant's costs of the hearing on 7 April 2011 as agreed or assessed.

2. The Council is to pay the Applicant's costs of the Applicant's Notice of Motion filed 11 November 2011 as agreed or assessed.

Catchwords:

COSTS - whether fair and reasonable in merits appeal under Land and Environment Court Act 1979 s 97 to award costs incurred in relation to contention introduced late by local council not in accordance with Class 1 practice directions - exercise of discretion to award partial costs

Legislation Cited:

Civil Procedure Act 2005 s 56, s 98
Environmental Planning and Assessment Act 1979 s 97
Land and Environment Court Rules 2007 r 3.7(3)
Sutherland Shire Development Control Plan 2006 Ch 9
Sutherland Shire Local Environment Plan 2006 cl 18
Uniform Civil Procedure Rules 2005 Pt 1 r 1.5, Pt 42 r 42.1, Sch 1

Cases Cited:

Noun v Sutherland Shire Council [2011] NSWLEC 1243

Category:

Costs

Parties:

Debra Ann Noun (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Mr P Tomasetti SC (Applicant)
Mr R O'Gorman-Hughes (Respondent)
MCW Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

10391 of 2010

Judgment

1. Before me is a Notice of Motion filed 11 November 2011 by the Applicant, Mrs Noun, seeking costs in Class 1 proceedings being a s 97 appeal under the Environmental Planning and Assessment Act 1979 (the EPA Act). The Applicant's amended order 1 sought was filed in Court and states that:

The respondent pay the applicant's costs incurred by reason of the respondent's amendment of the draft Deferred Commencement Conditions seeking by condition 2 in Part 1 thereof the removal of the two mooring piles located below the Mean High Water mark within 6 months of the date of the issue of development consent.

1. In the Class 1 proceedings the Applicant sought the removal of a deferred commencement condition of consent requiring removal of a boatshed. In the course of proceedings Sutherland Shire Council (the Council) raised an additional issue that two unlawful fender (mooring) piles should also be removed. These had not been referred to previously by the Council as an issue. In Noun v Sutherland Shire Council [2011] NSWLEC 1243 the Commissioner upheld the appeal, imposed the deferred commencement condition of consent to remove the boatshed, but did not require the removal of the fender piles.

Evidence

1. A tender bundle of documents containing pertinent background material was filed. An affidavit of Mrs Noun dated 8 November 2011 identified steps in the proceedings and the steps which had to be taken in order to meet the late issue of the removal of fender piles raised by the Council. She employed a marine engineer who prepared a report and had to give evidence when the Council challenged this evidence by calling…