Pearse v Sharpe (No 2) - [2008] NSWLEC 81

Land and Environment Court

of New South Wales

CITATION: Pearse v Sharpe & Anor (No 2) [2008] NSWLEC 81

PARTIES:
APPLICANTS
Mark Thomas Pearse and Cheryl Ann Pearse
FIRST RESPONDENTS
Ranald William Sharpe and Leigh Ann Sharpe
SECOND RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 40596 of 2007

CORAM: Jagot J

KEY ISSUES: Costs :- whether order for costs should be made in favour of the Council - whether the Council should not have taken any active role in the proceedings - Council's role reasonable in all the circumstances - applicant ordered to pay the Council's costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Pearse v Sharpe & Anor [2007] NSWLEC 710

DATES OF HEARING: 19 February 2008

EX TEMPORE JUDGMENT DATE: 19 February 2008

LEGAL REPRESENTATIVES:
APPLICANTS
Mr D Wilson
SOLICITORS
Hannaford Lawyers
FIRST RESPONDENTS
N/A
SOLICITORS
N/A
SECOND RESPONDENT
Mr J A Ayling SC
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

19 February 2008

40596 of 2007

MARK THOMAS PEARSE
CHERYL ANN PEARSE
Applicants

RANALD WILLIAM SHARPE
LEIGH ANN SHARPE
First Respondents

SUTHERLAND SHIRE COUNCIL
Second Respondent
JUDGMENT

Jagot J:

1 On 30 October 2007 I delivered my principal reasons in these proceedings (Pearse v Sharpe & Anor [2007] NSWLEC 710). I dismissed the applicants’ Class 4 application and made a general order for costs but stayed that costs order so that if the unsuccessful party (that is, the applicants) wished to be heard then there was an opportunity to do so.

2 The applicants reached an agreement with respect to the payment of the costs of the first respondents but dispute any liability under a costs order in favour of the second respondent, the Sutherland Shire Council.

3 The applicants’ propositions in support of that position are relatively straightforward. The applicants say that the case was a simple one that took a short amount of time. Although it involved essentially a dispute between two neighbours, the proceedings were commenced under s 123 of the Environmental Planning and Assessment Act 1979 and involved an issue of construction of the local environmental plan of general importance (which indeed is the Council’s explanation for its involvement in the proceedings in an active way). Further, the first respondents actively defended the proceedings on the same grounds as the Council. In these circumstances, the applicants say that there should be only one set of costs ordered (which have been ordered in favour of the first respondents). The Council, although a necessary party in the proceedings, should not have taken the active role it did given the nature of the issues and the fact that the first respondents were running precisely the same defence (being the argument I ultimately accepted).

4 For its part, the Council says that the general rule and underlying compensatory principles are not displaced in all of the circumstances. The litigation was not public interest litigation in the sense referred to in Oshlack v Richmond River…

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: [2008] NSWLEC 81
Decision Date: 19 February 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with a case between the Pearse family, the applicants, and the Sharpe family, the first respondents, with the Sutherland Shire Council, the second respondent, also involved in the proceedings. The applicants, Mark and Cheryl Pearse, sought to challenge a Class 4 application that had been dismissed by the court previously. The applicants were also disputing the costs order made in favour of the Sutherland Shire Council. The legal issues before the court were whether the Council should have taken an active role in the proceedings and whether an order for costs should be made in favour of the Council. The applicants argued that the case was a simple one that took a short amount of time and that the Council should not have taken an active role in the proceedings. The Council, however, argued that the underlying compensatory principles were not displaced in all of the circumstances. The court found that the Council acted reasonably in taking the role that it did in these proceedings and did make a contribution to the resolution of the proceedings. The court held that there were no circumstances to which the applicants had referred in their oral or written submissions displacing the usual principle that the successful respondent, being the Council, should also have an order for costs in its favour. The applicants were ordered to pay the second respondent's costs as agreed or assessed, including the costs of the hearing on 19 February 2008.

Orders