Ross v Lane Cove Council

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 1
Cases Cited:	ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256 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 4) [2012] NSWLEC 191 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 140
Category:	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

1. 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

1. 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.

1. 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,

...

1. 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.

1. 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…