Oosthuizen v Sutherland Shire Council - [2001] NSWLEC 137

Land and Environment Court

of New South Wales

CITATION: Oosthuizen v Sutherland Shire Council [2001] NSWLEC 137

PARTIES:
APPLICANT
Oosthuizen
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10236 of 2001

CORAM: Cowdroy J

KEY ISSUES: Costs :- class one proceedings - application for costs order or alternatively costs in respect of one issue - whether issue was unreasonably pursued by council - issue supported by expert evidence - conduct of council justified - no exceptional circumstances - no order for costs

LEGISLATION CITED: Land and Environment Court Act 1979 s 69
Practice Direction 1993

CASES CITED: Berk v Woollahra Municipal Council [No 2] (1992) 78 LGERA 180;
Cretazzo v Lombardi (1975) 13 SASR 4;
Hughes v Western Australian Cricket Association (Inc.) (1986) 8 ATPR 40-478;
Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78;
McDonald Industries Limited v Sydney City Council (1979-81) LGRA 428;
Oshlack v Richmond River Council (1998) 193 CLR 72

DATES OF HEARING: 25/06/01

DATE OF JUDGMENT:
07/19/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti (Barrister)
SOLICITORS
Gregory J Halpin
RESPONDENT
Ms S Duggan (Barrister)
SOLICITORS
Sutherland Shire Council

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10236 of 2000
CORAM: Cowdroy J
DECISION DATE: 19/7/01

Ardea Oosthuizen

Sutherland Shire Council

JUDGMENT

1. By notice of motion dated 10 April 2001 the applicant seeks an order that the Sutherland Shire Council (“the council”) pay its costs of the proceedings or alternatively that the council pay the applicant costs in relation to one issue (“issue eight”) of the Amended Statement of Issues filed on 20 July 2000 in the proceedings.

2. On 6 May 1999 the applicant submitted development application DA993136 (“the application”) to the council for a cluster housing development at No 672-674 Port Hacking Road Dolans Bay (“the site”). On 6 December 1999 a council officer prepared a report in which he recommended approval of the application. However approval was refused on 13 March 2000 and on 17 March 2000 the applicant instituted class one proceedings in this Court.

3. The matter was set down for hearing on 26 July 2000. On 13 July 2000 the hearing date was vacated because the council’s solicitor formed the opinion that the matter was not ready for hearing and because of a foreshadowed amendment by the applicant to its plans.

4. On 20 July 2000 an amended statement of issues was prepared by the council. Such statement eliminated certain issues that had been indicated as relevant but included, as a new issue, issue eight which stated:-

8. Unacceptable loss of potentially significant fauna due to loss of habitat.

5. On 1 August 2000 Mr Nicholas Skelton, a flora and fauna expert retained by council, prepared a report in which he referred to a visit to the site on 26 July 2000. He reported that using an ‘Anabat ultrasonic bat call detector’ he was able to record certain bat calls on the site. The species could not be determined and the results…

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: [2001] NSWLEC 137
Decision Date: 07/19/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an application by Ardea Oosthuizen against the Sutherland Shire Council. The applicant sought an order that the council pay its costs or, alternatively, that the council pay the applicant's costs in relation to one specific issue. The dispute arose from a development application for a cluster housing development which was ultimately refused by the council. The applicant instituted proceedings, and during the hearing, the council pursued an issue regarding potential loss of significant fauna due to habitat loss. The court was required to determine whether the council unreasonably pursued this issue, warranting an order for costs against the council.

The court considered the discretion to award costs under section 69(2) of the Land and Environment Court Act 1979 and the Practice Direction 1993, which generally discourages the awarding of costs in planning and building appeals unless exceptional circumstances exist. The court acknowledged that while the Practice Direction provides a guideline, it does not constrain the court’s unfettered discretion. The court examined the evidence presented by both parties, including expert reports, and found that the council’s pursuit of the issue, though vigorous, was not unreasonable given the expert advice it had received. The Commissioners did not find the issue to be entirely without merit, and thus the council’s conduct was justified.

In light of the above, the court concluded that no exceptional circumstances existed to warrant an order for costs against the council. The applicant's motion for costs was dismissed, and the exhibits were ordered to be returned.

Orders