Sylvester v Cessnock City Council - [2003] NSWLEC 5

Land and Environment Court

of New South Wales

CITATION: Sylvester & Ors v Cessnock City Council & Ors [2003] NSWLEC 5

PARTIES:
APPLICANTS
Michael Joseph Sylvester
Lyn Fay Sylvester
Kevin John Goodwin
Jean Anne Goodwin
Jodie Robb
Jeffrey Paul Burke
Anthea Therese Burke
FIRST RESPONDENT
Cessnock City Council
SECOND RESPONDENT
ACM Landmark Pty Limited
THIRD RESPONDENT
St Patricks of Nulkaba Pty Limited

FILE NUMBER(S): 40011 of 2002

CORAM: Cowdroy J

KEY ISSUES: Costs :- proceedings discontinued following grant of council approval - offer of settlement - no order for costs

LEGISLATION CITED: Land and Environment Court Act 1979, s 69
Land and Environment Court Rules 1996, Pt 15 r 7

CASES CITED: Calderbank v Calderbank [1975] 2 All ER 333 ;
Craig Murray v Trevor Valaire [2001] NSWLEC 57;
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622

DATES OF HEARING: 20/12/2002

DATE OF JUDGMENT:
02/03/2003

LEGAL REPRESENTATIVES:

APPLICANT
Ms H Irish (Barrister)
SOLICITORS
Whitehead Cooper Williams
FIRST RESPONDENT
n/a
SECOND AND THIRD RESPONDENT
Mr P Larkin (Barrister)
SOLICITORS
Messrs Oliver Campbell

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40011 of 2002

Cowdroy J

3 February 2003

MICHAEL JOSEPH SYLVESTER

LYN FAY SYLVESTER

KEVIN JOHN GOODWIN

JEAN ANNE GOODWIN

JODIE ROBB

JEFFREY PAUL BURKE

ANTHEA THERESE BURKE

Applicants

CESSNOCK CITY COUNCIL

First Respondent

ACM LANDMARK PTY LIMITED

Second Respondent

ST PATRICKS OF NULKABA PTY LIMITED

Third Respondent

Judgment

1 By notice of motion filed on 25 October 2002 the applicants seek an order that the second and third respondents (“the respondents”) pay the applicants’ costs in respect of prayers 2 and 3 of the amended application. In summary the amended application sought a declaration that development consent 8/2000/433 only related to the construction and operation of a cremation facility (prayer 1); a declaration that the use of the respondents’ land for the purpose of conducting weddings and funerals and associated purposes was unlawful unless a development consent was in force (prayer 2); and an order restraining the respondents from using the premises for various purposes without consent (prayer 3).

History of Litigation

2 These proceedings concern the alleged unlawful use of a church building formerly known as St Patricks Church, Nulkaba (“the church”). The church was constructed in 1893, replacing an original timber slab building which had been constructed in 1872. The church was used by the Catholic Church until its sale in 1991. Thereafter pursuant to development consent No. 118/692/10 granted by the first respondent (“the council”) the church was used for a reception centre, café and chapel. Such consent lapsed but the building was nevertheless used thereafter for weddings and funerals.

3 On 21 March 2001 development consent 8/2000/433 (“the consent”) was issued by the council to the second respondent in respect of the property known as Lot 235 DP 755252 and Lot 1 DP 128674. Such consent granted approval for the establishment of a crematorium facility upon such…

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: [2003] NSWLEC 5
Decision Date: 02/03/2003

CaseChat Overview and Summary

Sylvester v Cessnock City Council is a case before the Land and Environment Court of New South Wales, concerning the alleged unlawful use of a church building for conducting weddings and funerals without proper development consent. The applicants sought a declaration that the use of the property was unlawful and an order restraining such use, but discontinued their claims against the council and some claims against the respondents when the council granted development consent to the respondents. The applicants then sought an order for their costs.

The legal issues before the court were whether the applicants were entitled to their costs of the proceedings under Pt 15 r 7 of the Land and Environment Court Rules 1996, and whether the court should exercise its discretion to order costs on an indemnity basis.

The court found that neither party acted unreasonably in instituting or defending the proceedings, and that it should not attempt to determine the merits of the claims and defences. The court applied the principles from Lai Qin, and concluded that no order for costs should be made. The court also declined to make an order for costs on an indemnity basis, finding that the applicants were justified in believing they would be successful in obtaining an order for costs.

The court dismissed the applicants' notice of motion seeking to exclude certain evidence, and made no order as to the costs of the proceedings. The exhibits were ordered to be returned.

Orders