Prince v North Sydney Council - [2001] NSWLEC 165

Reported Decision: 115 LGERA 65

Land and Environment Court

of New South Wales

CITATION: Prince v North Sydney Council [2001] NSWLEC 165

PARTIES:
APPLICANT:
Colin Prince
RESPONDENT:
North Sydney Council

FILE NUMBER(S): 20076 of 1999 & 30005 of 2000

CORAM: Lloyd J

KEY ISSUES: Costs :- class 2 proceedings - appeal against order under s 124 of the Local Government Act 1993 of the same genus as a building appeal - extension of time to bring motion for costs - validity of Practice Direction cl 10 - principles in exercise of discretion as to costs - discontinuance of class 3 proceedings - no exceptional circumstances - no order as to costs

LEGISLATION CITED: Land and Environment Court Act 1979, s 69
Local Government Act 1993, s 124, s 180 and s 181
Practice Direction 1993, cl 10 and cl 10A

CASES CITED: Barnes v Dungog Shire Council [1999] NSWLEC 146;
Latudis v Casey (1990) 170 CLR 534;
MacDonald v Mosman Municipal Council [No. 2] 107 LGERA 211;
McDonald Industries Ltd v Sydney City Council (1980) 43 LGERA 428;
Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78;
Outboard Marine Australia Pty Ltd v Byrnes (1974) 1 NSWLR 27;
Re the Minister for Immigration and Ethnic Affairs; Ex Parte v Lai Qin (1997) 186 CLR 622;
Rio Pioneer Gravel Company Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153

DATES OF HEARING: 21/06/2001

EX TEMPORE
JUDGMENT DATE :
06/21/2001

LEGAL REPRESENTATIVES:
APPLICANT:
Mr I Hemmings (Barrister)
SOLICITORS:
N/A
RESPONDENT:
Ms H Irish (Solicitor)
SOLICITORS:
Corrs Chambers & Westgarth

JUDGMENT:

IN THE LAND AND Matter Nos. 20076 of 1999 & 30005 of 2000

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 21 June 2001

Colin Prince

Applicant

North Sydney Council

Respondent

EXTEMPORE JUDGMENT

HIS HONOUR:

1. By notice of motion dated 18 August 2000 the respondent, North Sydney Council (“the Council”) seeks the following orders:

2. That the respondent be granted leave to seek costs in these proceedings.

3. That the applicant pay the costs of the respondent of and incidental to these proceedings.

4. That the applicant pay the costs of the respondent of this motion.

2. The proceedings were heard by Commissioner Murrell on 31 January 2000 and on 16 and 19 June 2000. Those proceedings were an appeal under s 180 of the Local Government Act 1993 against an order issued by the Council under s 124 of that Act. The order under s 124 was issued on 14 October 1999; and it directed the applicant to do such things as were necessary to control the flow of surface water across land, to wit: repair, replace and provide suitable downpipes to guttering and to connect the downpipes to the nearest council stormwater system. The order related to premises known as No. 38 Boyle Street, Cremorne.

3. The Court’s Practice Direction 1993 contains cl 10, which is in the following terms:

Costs in Classes 1 and 2.

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: [2001] NSWLEC 165
Decision Date: 06/21/2001

CaseChat Overview and Summary

The case of Prince v North Sydney Council involves an appeal by Colin Prince against an order issued by the North Sydney Council under section 124 of the Local Government Act 1993. The appeal was heard in the Land and Environment Court of New South Wales. The primary legal issue before the court was whether the respondent, North Sydney Council, was entitled to costs in the proceedings. The case also considered whether the court's Practice Direction cl 10, which states that no order for costs is made in planning and building appeals unless the circumstances are exceptional, applied to the appeal under section 180 of the Local Government Act. Furthermore, the court examined whether there were exceptional circumstances justifying an order for costs in the class 2 proceedings and whether any costs should be awarded in the class 3 proceedings.

The court found that the appeal under section 180 of the Local Government Act was of the same genus as a building appeal, and thus, the Practice Direction cl 10 applied. Despite the Court of Appeal's recent decision in Maurici v Chief Commissioner of State Revenue, which questioned the appropriateness of Practice Directions in resolving questions of costs, the court upheld the principle that no order for costs should be made in planning and building appeals unless the circumstances were exceptional. The court granted the respondent leave to seek costs but found that there were no exceptional circumstances to warrant an order for costs in the class 2 proceedings. Regarding the class 3 proceedings, the court concluded that neither party had acted unreasonably, and thus, no order for costs was made in relation to those proceedings. However, considering the substantial time spent on the costs argument, the court ordered that the respondent pay half of the applicant's costs of the notice of motion.

Orders