Sansom v Port Stephens Council (No 2) - [2006] NSWLEC 504

Land and Environment Court

of New South Wales

CITATION: Sansom v Port Stephens Council (No 2) [2006] NSWLEC 504

PARTIES: APPLICANT
Jeffrey Joseph Sansom
RESPONDENT
Port Stephens Council

FILE NUMBER(S): 10155 of 2006

CORAM: Pain J

KEY ISSUES: Costs :- Whether costs should follow the event in preliminary question of law in Class 1 proceedings

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97,
Land and Environment Court Rules 1996 Pt 16 r 4

CASES CITED: Broadwater Action Group Inc v Richmond Valley Council (No 2) (2003) 129 LGERA 401 ;
Gee v Port Stephens Council (2003) 131 LGERA 325 ;
Gibson v Mosman Municipal Council (2001) 116 LGERA 397 ;
Grant v Kiama Municipal Council [2006] NSWLEC 70 ;
Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) ;
Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737 (9 December 2005) ;
Outdoor Australia Pty Ltd v Auburn Council [1996] NSWLEC 71

DATES OF HEARING: 01/08/2006

DATE OF JUDGMENT:
08/18/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr J Kildea (Barrister)
SOLICITORS
Thompson Norrie Solicitors
RESPONDENT
Mr J Maston (Barrister)
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

18 August 2006

10155 of 2006 Jeffrey Joseph Sansom v Port Stephens Council (No 2)
JUDGMENT ON COSTS

1 Her Honour: I determined a preliminary question of law in these Class 1 proceedings being a s 97 appeal under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) on 1 August 2006. The Council was successful on the question of law. As a result the Class 1 appeal in this matter cannot proceed.

2 The issue arises now as to whether I should award costs in the Council’s favour as it was successful on the preliminary question of law. Part 16 r 4 of the Land and Environment Court Rules 1996 (“the Rules”) provides:

(1) This rule applies to the following proceedings in classes 1, 2 and 3 of the Court’s jurisdiction:

a) proceedings under Sections 95A, 96, 97, 98, 109K, 121ZK, 121ZM and 149F of the

Environmental Planning and Assessment Act

1979,

…

(2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.

3 The Council relied on Grantv Kiama Municipal Council [2006] NSWLEC 70 and Gee v Port Stephens Council (2003) 131 LGERA 325 to argue that costs should be awarded in its favour.

4 The Applicant argued that despite the decision in Grant v Kiama and Gee I should not award costs. The cases suggest a difference in view on the issue of whether costs ought be payable in relation to a preliminary question of law in Class 1 proceedings and I should not award costs. The Applicant relied on Broadwater Action Group Inc v Richmond Valley Council and Anor (No 2)

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.

Keep reading for free

Create a free CaseChat account to read Sansom v Port Stephens Council (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWLEC 504
Decision Date: 18/08/2006

CaseChat Overview and Summary

In the case of Sansom v Port Stephens Council (No 2), the applicant, Jeffrey Joseph Sansom, sought to appeal a preliminary question of law in a Class 1 proceeding under the Environmental Planning and Assessment Act 1979. The Port Stephens Council, as the respondent, argued that costs should follow the event given its success on the preliminary question of law. The court was required to determine whether costs should be awarded to the respondent in such circumstances.

The legal issues at hand involved the interpretation of the relevant provisions under the Land and Environment Court Rules 1996, specifically Part 16 Rule 4, which governs the payment of costs in proceedings under the Environmental Planning and Assessment Act. The court had to consider the principles outlined in previous cases such as Grant v Kiama Municipal Council [2006] NSWLEC 70 and Gee v Port Stephens Council (2003) 131 LGERA 325, which suggested that costs could be awarded to the successful party on a preliminary question of law, against the arguments presented by the applicant based on cases like Broadwater Action Group Inc v Richmond Valley Council (No 2) (2003) 129 LGERA 401 and Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365, which indicated that costs should not be awarded in exceptional circumstances.

The court deliberated on the nature of the preliminary question of law and its separation from the merits of the appeal. It noted that while the question of law was distinct, it also involved some overlap with the merits of the case, specifically concerning the characterisation of the development under the relevant Local Environment Plan. The court held that the overlap warranted a cautious approach to awarding costs, and in light of the importance of not discouraging applicants from raising preliminary questions of law, the court found that it was fair and reasonable for each party to bear their own costs for the preliminary question of law.

Accordingly, the court ordered that each party was to pay its own costs of the hearing of the preliminary question of law.

Orders