Vigor Master Pty Limited v Warringah Council - [2006] NSWLEC 140

Land and Environment Court

of New South Wales

CITATION: Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140

PARTIES:
APPLICANT
Vigor Master Pty Limited
RESPONDENT
Warringah Council

FILE NUMBER(S): 11009 of 2004

CORAM: Preston CJ

KEY ISSUES: Costs :- planning appeal - no cost order unless fair and reasonable - proposed costs order by Commissioner - concurrence of Chief Judge required - whether concurrence should be granted - conduct of party in raising an making submissions on question of law after hearing concluded and judgment reserved - no reason why question could not have been dealt with at hearing - hearing day added to deal with question - cost order in relation to such conduct fair and reasonable

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97
Land and Environment Court Act 1979 (NSW) s 56A, s 69, s 69(8)
Land and Environment Court Rules 1979 Pt 16 r4, Pt 16 r4(2)

CASES CITED: Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414 (6 December 2004);
Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303 (15 June 2005) ;
Geoform Design Pty Limited v Randwick City Council (1995) 87 LGERA 140;
Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006);
Manly Warringah Leagues Club Pty Limited v Warringah Council [2006] NSWLEC 88 (1 March 2006);
Minnesota Nunung & Manufacturing Co v Biersdorf (Australia) Ltd (1979) 144 CLR 253;
Mifsud v Campbell (1991) 21 NSWLR 725;
Non-Drip Measure Co. Ltd v Stragers Ltd (1942) 59 RPC 1;
PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 (10 February 2005);
Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35 (11 February 2005);
Vigor Master Pty Limited v Warringah Council (No. 2) [2005] NSWLEC 255 (19 May 2005)

DATES OF HEARING: 02/06/05 - applicant's written submissions
14/06/05 - respondent's written submissions

DATE OF JUDGMENT:
03/29/2006

LEGAL REPRESENTATIVES: APPLICANT
T F Robertson SC (barrister)
SOLICITORS
N/A
RESPONDENT
N D Howie (solicitor)
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

29 MARCH 2006

11009 OF 2004

VIGOR MASTER PTY LIMITED V WARRINGAH COUNCIL

JUDGMENT

1 HIS HONOUR: The respondent, Warringah Council (“the Council”), has been successful in defending Class 1 proceedings being an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) against the deemed refusal by the Council of the applicant’s development application.

2 The development proposed by the applicant, Vigor Master Pty Limited, was to erect a new dwelling at Lot 1093, DP752038 in Brooker Avenue, Beacon Hill.

3 On 11 February 2005, Commissioner Watts delivered judgment dismissing the appeal: Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35 (11 February 2005). Commissioner Watts held that the proposed development would “not maintain the likely desired future character of the B2 ‘Non-Urban’ land and would be contrary to the objective of the planning instrument to maintain the natural features of…

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 Vigor Master Pty Limited v Warringah Council 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: [2006] NSWLEC 140
Decision Date: 03/29/2006

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered the matter of Vigor Master Pty Limited v Warringah Council, where the applicant, Vigor Master, sought to appeal the Council's refusal of their development application. Following the dismissal of the appeal, the Council sought costs from the applicant. The applicant opposed the costs, leading to a motion for costs. Commissioner Watts awarded the Council certain costs, which were then subject to the concurrence of the Chief Judge. The Chief Judge, Preston CJ, examined the Commissioner's decision and the arguments from both parties on whether concurrence should be granted. The court found that the applicant's conduct in certain respects was unreasonable, warranting a costs order, while other aspects did not justify such an order. Consequently, the Chief Judge granted concurrence to part of the Commissioner's proposed costs order, modifying the amount for the costs of the costs motion and omitting other proposed orders. The final order required the applicant to pay the Council $3,078 in costs.

Orders