Land and Environment Court
New South Wales
Medium Neutral Citation: Ross v Lane Cove Council [2013] NSWLEC 109 Hearing dates: 16 July 2013 Decision date: 17 July 2013 Jurisdiction: Class 1 Before: Biscoe J Decision: Respondent's notice of motion filed on 26 February 2013 is dismissed.
Catchwords: COSTS - Discontinued Class 1 appeal against refusal of an application to modify a development consent - whether applicant should pay respondent council's costs - costs principles on discontinuance of planning appeals. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A(1)(a), 96,149D
Land and Environment Court Act 1979 s 56A
Land and Environment Court Rules 2007 rr 3.7(2), 3.7(3)
Uniform Civil Procedure Rules 2005 r 42.19, Schedule 1Cases Cited: ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256
Lane Cove Council v Ross (No 4) [2012] NSWLEC 191
Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103, (2008) 158 LGERA 224
Grant v Kiama Municipal Council [2006] NSWLEC 70
Lane Cove Council v Ross (No 14) [2013] NSWLEC 87
Manly Warringah Rugby League Club Pty Ltd v Warringah Council [2006] NSWLEC 88
Ross v Lane Cove Council [2012] NSWLEC 1364
Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140Category: Costs Parties: Raymond Ross (Applicant)
Lane Cove Council (Respondent)Representation: COUNSEL:
N Hogan (Applicant)
N Eastman (Respondent)
SOLICITORS:
Duncan Scott (Applicant)
Pikes & Verekers (Respondent)
File Number(s): 11079/12
Judgment
The respondent Lane Cove Council seeks its costs of this discontinued planning appeal by Mr Raymond Ross in Class 1 of the Court's jurisdiction.
Costs on discontinuance of a planning appeal
Costs in Classes 1, 2 and 3 of the court's jurisdiction are governed by r 3.7(2) of the Land and Environment Court Rules (LECR). Rule 3.7(2) provides:
The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
Subclause 3.7(3) sets out, non-exhaustively, circumstances in which the Court might consider the making of a costs order to be fair and reasonable including:
...
(c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,
(d) that a party has acted unreasonably in the conduct of the proceedings,
...
Council submits that it is fair and reasonable to make a costs order against Mr Ross because he has acted unreasonably in the conduct of the proceedings.
A no discouragement principle underlies the no costs rule in planning appeals. In Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103, (2008) 158 LGERA 224 at [9] - [10] I wrote (omitting citations):
9. In the context of the presumptive rule that there will be no order as to costs in planning appeals, the power to make a costs order is in the broadest of terms, that is, what is "fair and reasonable in the circumstances". All rational considerations are relevant…
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- Case
- [2013] NSWLEC 109
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Council's decision was legally valid, whether there was any procedural unfairness in the decision-making process, and whether the Council's decision was based on irrelevant considerations. Additionally, the court had to determine whether the Council had acted irrationally or had failed to take into account relevant considerations when making its decision.
The court found that the Council's decision was legally sound and had been made according to the correct procedures. It was determined that the Council had considered all relevant factors and had not acted on irrelevant considerations. The court held that the Council's decision was not irrational and that Mr. Ross's application for judicial review was therefore unsuccessful. Consequently, the respondent's notice of motion was dismissed.
Orders
Orders of the court
Respondent's notice of motion filed on 26 February 2013 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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