Parkes v Byron Shire Council - [2004] NSWLEC 722

Land and Environment Court

of New South Wales

CITATION: Parkes v Byron Shire Council [2004] NSWLEC 722

PARTIES: John Parkes (Appl)
Byron Shire Council (Resp)

FILE NUMBER(S): 11050/01; 10897 of 2001

CORAM: McClellan CJ

KEY ISSUES: Costs :- Class 1 proceedings
Motion determining preliminary questions
Questions raised in the nature of ordinary litigation going to the permissibility of the development
No questions of merit
Quantification of costs sought

LEGISLATION CITED:

CASES CITED: Gee v Port Stephens Council (2003) 131 LGERA 325

DATES OF HEARING: 22 November 2004

EX TEMPORE
JUDGMENT DATE : 11/22/2004

LEGAL REPRESENTATIVES:
J Kildea (Appl)
Walkers (Solicitors - Appl)
C J Leggat (Resp)
Abbott Tout (Solicitors - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

MONDAY 22 NOVEMBER 2004

11050/01; 10897/01 PARKES v BYRON SHIRE COUNCIL
JUDGMENT

1 HIS HONOUR: There are two motions before the Court for orders for costs. The motions are brought in separate class one proceedings which relate to adjoining properties within the area of Byron Shire Council. The two applications were for consent to develop what was described as tourist facilities upon adjoining properties.

2 As I understand the position, commercial enterprises have been conducted on both properties for some time and there have been issues between the parties as to whether or not the existing activities were lawful. In part, the class one proceedings were made necessary because of the Council’s concern that the existing enterprises were unlawful.

3 The proceedings have been infected by a multiplicity of motions both in relation to questions of adjournment and also in relation to separate questions which were identified going to the lawfulness of each application.

4 Both proceedings came before Lloyd J in relation to a motion raising a question of law as to the definition of "tourist facility" and accordingly, the permissibility of the applications as then defined.

5 His Honour determined both motions in favour of the Council, with the consequence that in proceedings 11050/01 the motion which had been brought by the applicant for development consent was dismissed, the question of costs reserved and the proceedings otherwise dismissed.

6 Although it is not clear from his Honour’s judgment, I infer that the costs reserved were the costs of the motion rather than the costs of the whole proceedings. Not only do I infer this to be his Honour’s determination, but it seems to me to accord with principle which I shall refer to in a moment. Apart from the costs of the motion, the application was properly brought as an application for merit review of the Council’s decision in relation to the matter.

7 With respect to matter 10897/01, the applicant for development consent’s motion was dismissed. The Council had also brought a motion which was dismissed, allowing the application for development consent to continue before a commissioner so that a determination on the merits could be made.

8 As I understand it, it was understood by the parties that following his Honour’s determination, the…

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: [2004] NSWLEC 722
Decision Date: 11/22/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, John Parkes, the applicant, filed two class one proceedings against the Byron Shire Council, the respondent, seeking consent to develop tourist facilities on adjoining properties. The council had concerns that the existing commercial enterprises on the properties were unlawful, leading to the class one proceedings. Both proceedings were initially dismissed by Lloyd J, who determined that the applications as then defined were not permissible. The matter was later reconsidered, allowing the application in one proceeding to continue before a commissioner for a determination on the merits.

The court was required to decide the legal issues surrounding the costs associated with the motions filed in both proceedings. Specifically, the court had to determine whether an order for costs should be made in the class one proceedings, considering the nature of the questions raised and the outcome of the motions. The court also had to consider whether the applicant should be ordered to pay the costs of the motions, given that the questions raised did not pertain to the merits of the applications but rather to their permissibility.

The court's reasoning focused on the principles of costs in class one proceedings, as outlined in Gee v Port Stephens Council. The court held that where a preliminary question raised by the council precluded consent at all, the proceedings ceased to have the character of merits review, and different considerations arose. The court found that the questions raised in the motions were in the nature of ordinary litigation, going to the permissibility of the development. Given that the applicant's motions failed, the court concluded that an order for costs was appropriate. The court also found that the applicant should pay the costs of the motions before Lloyd J and Cowdroy J, as the applicant had decided to pursue the motions despite the council's amendment to the Byron Local Environmental Plan, which affected the strength of the council's case.

The court's outcome was that the council was entitled to an order for the costs of the motions before Lloyd J in both proceedings and also an order for its costs of the motion before Cowdroy J. The court deferred making formal orders until the parties discussed and agreed upon the quantum of the costs. The court also determined that it was appropriate for the council to obtain an order for the costs of the proceedings before the court, given that the applicant had not previously offered to pay any part of the council’s costs.

Orders