Sydney City Council v Car Hire Australia Pty Ltd

[2001] NSWLEC 37

Land and Environment Court

of New South Wales

CITATION:	Sydney City Council v Car Hire Australia Pty Ltd and Ors [2001] NSWLEC 37
PARTIES:	APPLICANT Sydney City Council RESPONDENTS Car Hire Australia Pty Ltd and Ors
FILE NUMBER(S):	40134 of 2000
CORAM:	Pearlman J
KEY ISSUES:	Costs :- in class 4 - no order as to costs
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121B
CASES CITED:
DATES OF HEARING:	28/11/2000
EX TEMPORE JUDGMENT DATE :	11/28/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr J E Robson (Barrister) SOLICITORS Abbott Tout RESPONDENTS Mr M S Campbell (Barrister) SOLICITORS Craig Milne & Company

JUDGMENT:

IN THE LAND AND 40134 of 2000
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 28 November 2000

SYDNEY CITY COUNCIL

Applicant

v

CAR HIRE AUSTRALIA PTY LTD

First Respondent

GARRY GEISSLER AND MARK GEISSLER

Second Respondents

SEVCOL PTY LTD

Third Respondent

JUDGMENT

1. Before me are class 4 proceedings. These have been taken by Sydney City Council as applicant against Car Hire Australia Pty Ltd as the first respondent, Garry Geissler and Mark Geissler as the second respondents and Sevcol Pty Ltd as the third respondent.

2. These class 4 proceedings relate to premises at 16 - 18 Broadway, Chippendale and in particular to an advertising structure erected on those premises.

3. In class 1 proceedings, No 10211 of 2000, between Sevcol Pty Ltd as applicant and the council as respondent, Sevcol Pty Ltd appealed against an order made by the council under s 121B of the Environmental Planning and Assessment Act 1979 requiring the removal of the structures.

4. Both the class 1 and class 4 proceedings were to be heard together. As this hearing today has turned out, the class 1 proceedings were heard first. I then delivered a judgment in which I made findings, in particular, a finding the applicant in those proceedings, Sevcol Pty Ltd, had no basis for not complying with the order under s 121B by virtue of an alleged development consent. The class 4 proceedings relate to that very issue.

5. It seems appropriate to me that I make the declaration that is sought in the class 4 proceedings. A consequential order is also sought and the parties have agreed that the order be made by consent. There remains only the question of costs.

6. In the circumstances I have outlined it seems to me that the proper order is simply that each side pay its own costs. Although it is the usual practice and, indeed, the law, that in class 4 proceedings costs should normally follow the event, the circumstances which I have outlined make these class 4 proceedings different. The class 4 proceedings have come to an end because of the judgment that I delivered today in the class 1 proceedings. Although both proceedings were to be heard together, and although in both the class 4 proceedings and the class 1 proceedings the council has been successful, I think that there is no basis for me to say that the council ought to be compensated for its costs. The fact is that were it not for the judgment I made in the class 1 proceedings, the class 4 proceedings would have been a matter for hearing and determination.

7. The orders I make are therefore as follows:

(1) I declare that the respondents, by themselves, their servants and agents, have failed to comply with an order issued by Sydney City Council on 17 February 2000 under s 121B.5 of the Environmental Planning and Assessment Act 1979.

(2) By consent I order that the respondents, by themselves, their servants and agents, remove or cause to be removed, the free-standing flood lit advertising panel and advertising structure located on the premises, 16 - 18 Broadway, Chippendale, on or before 28 May 2001.

(3) I make no order as to costs.