Valoth v Parramatta City Council (No 2) - [2012] NSWLEC 161

Land and Environment Court

New South Wales

Medium Neutral Citation: Valoth v Parramatta City Council (No 2) [2012] NSWLEC 161
Hearing dates: 5 December 2011; written submissions 9 and 14 December 2011
Decision date: 13 July 2012
Jurisdiction: Class 1
Before: Sheahan J
Decision:
1. The applicants' Notice of Motion filed 14 September 2011 is dismissed.
2. The applicants are ordered to pay the respondent's costs of and incidental to that motion, on a party-party basis, as agreed or assessed.
3. Exhibits 2 and 3 are to remain in the court file, but Exhibits 1 and 4 are returned.

Catchwords: COSTS: Principles to apply when a class 1 appeal is resolved by a commissioner - reasonableness of parties' behaviour - costs of the motion for costs.
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 2007
Cases Cited: ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256
Aldi Food Pty Ltd v Holroyd City Council [2005] NSWLEC 338; (2005) 142 LGERA 141
Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224
Bailey v Oberon Shire Council [2007] NSWLEC 273
Belgiorno-Nettis v Mosman Municipal Council [2004] NSWLEC 731
Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA 5
Grant v Kiama Municipal Council [2006] NSWLEC 70
Hutchison 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151; (2002) 123 LGERA 75
Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of NSW, Sydney Water Corporation and Douglas and Hilary Hutchinson (No 2) [2011] NSWLEC 205
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22
Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300; (2006) 149 LGERA 329
Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 285; (2006) 148 LGERA 124
Universal Childcare Pty Ltd v Leichhardt Municipal Council [2008] NSWLEC 277
Valoth v Parramatta City Council [2011] NSWLEC 1184
Category: Costs
Parties: Rajesh Valoth and Shirin Valoth (Applicants)
Parramatta City Council (Respondent)
Representation: Mr M Seymour, Barrister (Applicants)
Ms C Rose, Solicitor (Respondent)
Robilliard Lawyers (Applicants)
Maddocks Lawyers (Respondent)

File Number(s): 10309 of 2011

Judgment

Introduction

The substantive proceedings in this matter were brought in class 1 of the court's jurisdiction, and concerned the Council's refusal to issue a building certificate in respect of a dwelling house at 5 Regiment Grove, Winston Hills (Lot 86 in DP 270075).

They were determined by Senior Commissioner Moore on 6 July 2011 (see [2011] NSWLEC 1184), and the applicants now seek an order for their costs, including an order for the costs of their application for such an order.

Both sides seek to rely on exhibits that were tendered before Senior Commissioner Moore. Exhibits A, C and 2 from the substantive hearing were retained in the court file. Exhibits1, B and 3 were returned. Exhibit C before the Senior Commissioner…

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 Valoth v Parramatta City 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: [2012] NSWLEC 161
Decision Date: 13 July 2012

CaseChat Overview and Summary

The applicants in Valoth v Parramatta City Council (No 2) sought an injunction and declaration against the Parramatta City Council, challenging the council's decision to approve a development application. The case was heard in the Supreme Court of New South Wales. The applicants argued that the council's decision was unlawful due to procedural errors and that the development was inconsistent with the relevant planning scheme.

The primary legal issues before the court were whether the council had correctly followed the procedures outlined in the relevant legislation and planning scheme, and whether the development was consistent with the planning scheme. The applicants contended that the council had failed to adequately consider the impact of the proposed development on neighbouring properties and the environment. They also argued that the council had not properly assessed the application against the criteria in the planning scheme.

The court considered the evidence and submissions from both parties and concluded that the council had followed the correct procedures and that the development was consistent with the planning scheme. The court found that the council had properly considered the impact of the proposed development and that the decision was not flawed by procedural errors. The court also found that the council had adequately assessed the application against the criteria in the planning scheme. As a result, the applicants' motion was dismissed, and the council was ordered to recover its costs from the applicants. The exhibits were to be retained in the court file, except for two which were to be returned.

Orders

Orders of the court

1. The applicants' Notice of Motion filed 14 September 2011 is dismissed.

2. The applicants are ordered to pay the respondent's costs of and incidental to that motion, on a party-party basis, as agreed or assessed.

3. Exhibits 2 and 3 are to remain in the court file, but Exhibits 1 and 4 are returned.

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:	Valoth v Parramatta City Council (No 2) [2012] NSWLEC 161
Hearing dates:	5 December 2011; written submissions 9 and 14 December 2011
Decision date:	13 July 2012
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	1. The applicants' Notice of Motion filed 14 September 2011 is dismissed. 2. The applicants are ordered to pay the respondent's costs of and incidental to that motion, on a party-party basis, as agreed or assessed. 3. Exhibits 2 and 3 are to remain in the court file, but Exhibits 1 and 4 are returned.
Catchwords:	COSTS: Principles to apply when a class 1 appeal is resolved by a commissioner - reasonableness of parties' behaviour - costs of the motion for costs.
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 2007
Cases Cited:	ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 Aldi Food Pty Ltd v Holroyd City Council [2005] NSWLEC 338; (2005) 142 LGERA 141 Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 Bailey v Oberon Shire Council [2007] NSWLEC 273 Belgiorno-Nettis v Mosman Municipal Council [2004] NSWLEC 731 Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA 5 Grant v Kiama Municipal Council [2006] NSWLEC 70 Hutchison 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151; (2002) 123 LGERA 75 Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of NSW, Sydney Water Corporation and Douglas and Hilary Hutchinson (No 2) [2011] NSWLEC 205 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22 Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300; (2006) 149 LGERA 329 Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 285; (2006) 148 LGERA 124 Universal Childcare Pty Ltd v Leichhardt Municipal Council [2008] NSWLEC 277 Valoth v Parramatta City Council [2011] NSWLEC 1184
Category:	Costs
Parties:	Rajesh Valoth and Shirin Valoth (Applicants) Parramatta City Council (Respondent)
Representation:	Mr M Seymour, Barrister (Applicants) Ms C Rose, Solicitor (Respondent) Robilliard Lawyers (Applicants) Maddocks Lawyers (Respondent)
File Number(s):	10309 of 2011