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Thomson v Mosman Council

Thomson v Mosman Council

Case [1999] NSWLEC 86 12 April 1999

Legitimate Expectation

Remedial Orders

Environmental Law

Administrative Law

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Land and Environment Court

of New South Wales

CITATION:

Thomson V Mosman Council & Anor [1999] NSWLEC 86

PARTIES

APPLICANT
Peter John Thomson

FIRST RESPONDENT
Mosman Council
SECOND RESPONDENT
George O'Neil

NUMBER:

40160 of 1998

CORAM:

Sheahan J

KEY ISSUES:

:- Class 4

LEGISLATION CITED:

Class 4

DATES OF HEARING:

02/23/1999

DATE OF JUDGMENT DELIVERY:

04/12/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti
FIRST RESPONDENT
Mr J Ayling Barrister
SOLICITOR
Ms J Walsh of Hill Thomson & Sullivan
SECOND RESPONDENT
Mr W Henningham Solicitor
of Henningham & Ellis-Jones

JUDGMENT:

IN THE LAND AND Matter No: 40160 of 1998
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 12 April 1999

PETER JOHN THOMSON
Applicant
v
MOSMAN COUNCIL
First Respondent
GEORGE O’NEIL
Second Respondent

Introduction

1. These are Class 4 proceedings in which the applicant (“Thomson”) sought a declaration that development consent 636/97, granted by the First Respondent (“Council”) to the Second Respondent (“O’Neil”), for first floor additions and landscaping work, at O’Neil’s home, 30 Botanic Road Mosman (next door to Thomson’s home), was invalid, void and of no effect.

2. The substantive dispute between the neighbours has been settled by mediation, and they have agreed, as between themselves, that each will pay his own costs. The two respondents have also agreed that, as between themselves, each will pay his/its own costs. The only issue remaining to be resolved by the Court is the question of costs as between Thomson and the Council.

3. In view of the agreements reached, and with the consent of all parties, I formally dismissed the application, save as to the one outstanding question as to costs. O’Neil’s representatives then obtained leave to withdraw, and the Court heard argument on the outstanding costs issue, upon which this decision was reserved.

How to resolve the question of costs

4. This Court has an unfettered discretion as to costs, but that discretion must be exercised judicially, i.e. not by reference to irrelevant or extraneous considerations, but upon facts connected with the litigation. See Land & Environment Court Act 1979 (“LECA”) s 69; and Donald Campbell & Co Limited v Pollak [1927] AC 732. Some useful guidance as to the exercise of the discretion can be found in Oshlack v Richmond River Council (1998) 193 CLR 72 (see especially the judgment of Kirby J at par 134, pages 120-123).

5. In deciding the outstanding question of costs in this matter, it is not necessary for the Court to reach a “ final ” conclusion as to the likely outcome of the proceedings, had they been tried, but the Court must form some impression of the prospects of the applicant’s success. See Re Minister for Immigration; Ex parte Lai Qin (1997) 186 CLR 622; and Hayden Theatres v Penrith Council & Anor (40210 of 1995, Bignold J, 1 April 1998).

6. Only the method of final and formal disposition of the proceedings differentiates this matter from the case of Jan Yee Australia Pty Limited v Woollahra Council…

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.

Continue reading Thomson v Mosman Council

Details

AGLC: Thomson v Mosman Council [1999] NSWLEC 86
Case: [1999] NSWLEC 86
Decision Date: 12 April 1999

CaseChat Overview and Summary

In the case of Thomson v Mosman Council, the applicant, Peter John Thomson, sought to have the development consent granted by Mosman Council to George O'Neil declared invalid. The key issue in the case was whether the Council's procedures had been miscarried, and whether the Council had failed to consider Thomson's objections to the development application. The Court found that Thomson had a strong case in respect of the miscarried Council procedures, and that his prospects of success were likely to have been strengthened by the amendment of the points of claim. However, the fundamental issue between the two neighbours was resolved by mediation, and it was found that proceedings may not have been Thomson's last resort as against the neighbour. The Court concluded that it was probably more likely than not that Thomson would have succeeded in upsetting the consent, had the trial proceeded. However, the Court also found that it would not be an appropriate exercise of the judicial discretion to make no order at all as to costs. The formal orders of the Court were that the application was dismissed and the Council was ordered to pay such of the applicant's costs as were incurred by the applicant in respect of his claim against that respondent.

In arriving at this decision, the Court considered the evidence in the affidavits, which revealed a large amount of common ground among the parties and a few factual issues which the Court would have had to decide. The Court also considered the amended points of claim and defence, and the submissions made on behalf of the applicant and the Council. The Court found that the Council's policy and procedures were clear as to the dispatch of advisings, but that the evidence as to receipt and non-receipt was mixed. The Court also found that the Council gave due and relevant consideration to all the concerns of the neighbours, and that a notification scheme is secondary to the exercise of the statutory power.

The Court noted that the fundamental issue at the heart of the dispute between the two neighbours was resolved by mediation, and that there seem to have been no personal or direct follow-up negotiations between the neighbours until the mediation. The Court also noted that O'Neil had put to the Council a firm proposal to erect some screening, after he had put that suggestion to Thomson, without securing the latter's agreement. The Court found that it was probably more likely than not that Thomson would have succeeded in upsetting the consent, had the trial proceeded, but that it would not be an appropriate exercise of the judicial discretion to make no order at all as to costs. The formal orders of the Court were that the application was dismissed and the Council was ordered to pay such of the applicant's costs as were incurred by the applicant in respect of his claim against that respondent.

Orders