Paterson v Warringah Council - [2003] NSWLEC 25

Land and Environment Court

of New South Wales

CITATION: Paterson v Warringah Council [2003] NSWLEC 25

PARTIES:
APPLICANT:
Paterson
RESPONDENT:
Warringah Council

FILE NUMBER(S): 10951 of 2001 and; (1)0391 of 2002

CORAM: Bignold J

KEY ISSUES: Costs :- costs in related class 1 proceedings involving the issue of two statutory planning enforcement orders-Parties having varying degrees of success in outcome of proceedings

LEGISLATION CITED: Land and Environment Court Act 1979, s 69
Court's Practice Direction, par 10

CASES CITED: Altomonte v Hunters Hill Council (2002) 120 LGERA 286

DATES OF HEARING: 02/12/02

EX TEMPORE
JUDGMENT DATE :
12/02/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Dr I Paterson (Agent)
SOLICITORS
N/A
RESPONDENT:
Ms J Smith, Solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10951 of 2001 and

(1) 0391 of 2002

Coram : Bignold J

2 December 2002

JOHN PATERSON

Applicant

WARRINGAH COUNCIL

Respondent

JUDGMENT

1. The Court has before it competing motions claiming costs in proceedings which were concluded by the delivery of judgment by Commissioner Brown on 3 September 2002 in related proceedings both involving the issue of an order pursuant to the Environmental Planning and Assessment Act 1979, s 121B in respect of premises known as No 6 Tanderra Place, Curl Curl, at the time owned by the Applicant who is a 90 year old pensioner who has lived in the premises for many years assisted by his carer, his son Dr Paterson and his family. Dr Paterson appeared as the authorised agent for his father in the proceedings and again appears before me today on the competing motions for costs.

2. The Council’s claim for costs is essentially on the basis of its assertion that it was the victor in the litigation and that the Court should exercise the discretion in relation to costs conformably to the Land And Environment Court Act 1979, s 69 and not by reference to the Court’s Practice Direction, par 10 in relation to costs which provides that costs are not ordinarily granted in planning or building appeals.

3. There has been some considerable divergence of opinion in the Court as reflected in the decisions as to whether an appeal against an order issued pursuant to the Environmental Planning and Assessment Act, s 121B is relevantly to be regarded as a “planning or building appeal”, for the purposes of the Court’s Practice Direction, par 10. The cases are collected in the recent decision of Justice Pain in Altomonte v Hunters Hill Council (2002) 120 LGERA 286. Her Honour there refers to a number of decisions of the Court in proceedings involving costs claims in relation to statutory enforcement orders issued pursuant to the Environmental Planning and Assessment Act, s 121B which are analogous to, although more extensive in scope, than orders for statutory enforcement issued under the Local Government Act 1993, s 124.

4. It appears that there is a preponderance of opinion…

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: [2003] NSWLEC 25
Decision Date: 12/02/2002

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant, Paterson, brought proceedings against Warringah Council regarding two statutory planning enforcement orders. The first order required the removal of specific elements from Paterson's premises, while the second order mandated the cessation of using the premises as three separate dwellings. The Council sought costs based on their success in the second order, but Paterson argued that they were successful in resisting the removal of certain structural elements in the first order. The court had to determine whether the Council was entitled to costs despite their partial success and Paterson's partial victory.

The court considered whether an appeal against an order under the Environmental Planning and Assessment Act 1979, section 121B, qualified as a planning or building appeal for the purposes of the court's practice direction on costs. The court found that while there was a divergence of opinion, the prevailing view was that such appeals were not planning or building appeals, allowing for a costs decision based on the overall outcome of the litigation. The court also examined the significance of each order and the context in which they were issued, determining that Paterson's success in resisting the removal of critical structural elements in the first order was a major factor in the proceedings.

Bignold J concluded that both parties achieved a measure of success in different aspects of the litigation, and neither could be regarded as the prevailing party. The court decided that each party should bear their own costs, reflecting the mixed outcomes and the importance of Paterson's success in the first order. This decision ensured that the costs were distributed fairly, considering the complexities and outcomes of the litigation.

Orders