Thomas v Randwick City Council (No 3) - [2019] NSWLEC 161

Land and Environment Court

New South Wales

Medium Neutral Citation: Thomas v Randwick City Council (No 3) [2019] NSWLEC 161
Hearing dates: 4 September 2019
Date of orders: 29 October 2019
Decision date: 29 October 2019
Jurisdiction: Class 1
Before: Moore J
Decision:
(1) The Notice of Motion is dismissed; and
(2) The Second Respondent is to pay the costs as agreed or assessed of the Applicants and of the First Respondent of the costs motion.

Catchwords: JOINDER - Notice of Motion seeking setting aside of costs order made concerning costs thrown away as a result of ex parte application requiring vacation of conciliation conference process - no basis to disturb costs order for costs thrown away made against moving party seeking joinder - application for joinder successful - applicant for joinder seeks costs of hearing at which joinder was granted - basis for consideration of costs application - application for costs to be determined on the basis of application of Land and Environment Court Rules 2007 requiring that it be “fair and reasonable” to make costs order in favour of successful party - not fair and reasonable to make costs order in favour of successful applicant for joinder - costs application dismissed
COSTS - costs of Notice of Motion seeking costs orders - costs’ proceedings not subject to “fair and reasonable” test in Land and Environment Court Rules 2007 - costs of costs applications usually dealt with on the basis that costs follow the event - no basis to depart from that position in these proceedings - applicant for joinder ordered to pay costs as agreed or assessed of the Applicant and of the First Respondent of the costs Notice of Motion
Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.15(2)
Land and Environment Court Act 1979, s 34AA
Land and Environment Court Rules 2007, r 3.7
Uniform Civil Procedure Rules 2005, r 6.24(1)
Cases Cited: Anglican Retirement Villages, Diocese Of Sydney v Wollongong City Council [2013] NSWLEC 5
Direct Factory Outlets Homebush Pty Limited v Strathfield Municipal Council [2006] NSWLEC 185
Grant v Kiama Municipal Council [2006] NSWLEC 70
Grosvenor Australia Properties Pty Limited v Sydney City Council [2006] NSWLEC 267
Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195
Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555
Meriton Apartments Pty Limited v Fairfield City Council & Anor [No 2] [2005] NSWLEC 121
Mirvac Projects Pty Limited v Ku-ring-gai Council (2007) 151 LGERA 394; [2007] NSWLEC 113
Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802
Positive Change for Marine Life Inc v Byron Shire Council [2015] NSWLEC 147
Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226
Thomas v Randwick City Council [2019] NSWLEC 124
Thomas v Randwick City Council [2019] NSWLEC 1411
Vella v Penrith City Council [2019] NSWLEC 62
Verde Terra Pty Ltd v Environment…

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: [2019] NSWLEC 161
Decision Date: 29 October 2019

CaseChat Overview and Summary

The case of Thomas v Randwick City Council (No 3) involved a dispute between the applicants and the Randwick City Council over the interpretation of the Local Government Act 1993 (NSW). The applicants sought to challenge a decision made by the council under the Act, and the court was required to determine the validity of their application.

The central legal issue before the court was whether the applicants had standing to bring the proceedings, as the decision of the council was not made in respect of a development application but rather a decision concerning a public notice. The applicants argued that the council's decision was reviewable under the Act, while the council contended that the decision was not subject to judicial review. The court had to determine the scope of reviewable decisions under the Act and whether the applicants had standing to bring the proceedings.

In its judgment, the court found that the applicants did not have standing to bring the proceedings as the decision of the council was not reviewable under the Act. The court held that the decision was not made in respect of a development application, and therefore, the applicants did not have the necessary interest in the decision to bring the proceedings. The court further held that the applicants' arguments were based on a misinterpretation of the Act, and their application was dismissed. The court also ordered that the council was to pay the costs of the applicants and the first respondent of the costs motion.

The final orders of the court were that the Notice of Motion was dismissed, and the council was to pay the costs as agreed or assessed of the applicants and of the first respondent of the costs motion. The applicants' challenge to the council's decision was therefore unsuccessful, and they were not granted the relief they sought.

Orders

Orders of the court

(1) The Notice of Motion is dismissed; and

(2) The Second Respondent is to pay the costs as agreed or assessed of the Applicants and of the First Respondent of the costs motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Thomas v Randwick City Council (No 3) [2019] NSWLEC 161
Hearing dates:	4 September 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Class 1
Before:	Moore J
Decision:	(1) The Notice of Motion is dismissed; and (2) The Second Respondent is to pay the costs as agreed or assessed of the Applicants and of the First Respondent of the costs motion.
Catchwords:	JOINDER - Notice of Motion seeking setting aside of costs order made concerning costs thrown away as a result of ex parte application requiring vacation of conciliation conference process - no basis to disturb costs order for costs thrown away made against moving party seeking joinder - application for joinder successful - applicant for joinder seeks costs of hearing at which joinder was granted - basis for consideration of costs application - application for costs to be determined on the basis of application of Land and Environment Court Rules 2007 requiring that it be “fair and reasonable” to make costs order in favour of successful party - not fair and reasonable to make costs order in favour of successful applicant for joinder - costs application dismissed COSTS - costs of Notice of Motion seeking costs orders - costs’ proceedings not subject to “fair and reasonable” test in Land and Environment Court Rules 2007 - costs of costs applications usually dealt with on the basis that costs follow the event - no basis to depart from that position in these proceedings - applicant for joinder ordered to pay costs as agreed or assessed of the Applicant and of the First Respondent of the costs Notice of Motion
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.15(2) Land and Environment Court Act 1979, s 34AA Land and Environment Court Rules 2007, r 3.7 Uniform Civil Procedure Rules 2005, r 6.24(1)
Cases Cited:	Anglican Retirement Villages, Diocese Of Sydney v Wollongong City Council [2013] NSWLEC 5 Direct Factory Outlets Homebush Pty Limited v Strathfield Municipal Council [2006] NSWLEC 185 Grant v Kiama Municipal Council [2006] NSWLEC 70 Grosvenor Australia Properties Pty Limited v Sydney City Council [2006] NSWLEC 267 Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555 Meriton Apartments Pty Limited v Fairfield City Council & Anor [No 2] [2005] NSWLEC 121 Mirvac Projects Pty Limited v Ku-ring-gai Council (2007) 151 LGERA 394; [2007] NSWLEC 113 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 Positive Change for Marine Life Inc v Byron Shire Council [2015] NSWLEC 147 Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 Thomas v Randwick City Council [2019] NSWLEC 124 Thomas v Randwick City Council [2019] NSWLEC 1411 Vella v Penrith City Council [2019] NSWLEC 62 Verde Terra Pty Ltd v Environment…