Holroyd City Council v Peter Kubacki & Anor; Peter Kubacki & Anor v Holroyd City Council [2007] NSWLEC 804

Holroyd City Council v Peter Kubacki & Anor; Peter Kubacki & Anor v Holroyd City Council [2007] NSWLEC 804

The Class 1 proceedings were brought not simply to obtain approval for starch storage but to stave off the possible success of the Council's Class 4 proceedings to stop an unapproved use. After refusal of the development application and failure of the s.82A application, the occupier did not obtain appropriate and up to date reports or make proposals addressing serious Building Code of Australia and acoustic shortcomings. Although the development application was capable of approval, very little was done to remedy its shortcomings, making it fair, reasonable, just and equitable to order costs in favour of the Council.

Jurisdiction
Australia
Judgment Date
07 December 2007
Procedural Posture
Class 4 and Class 1 Proceedings in the Land and Environment Court of New South Wales / Notice of Motion for Costs and Consent Costs Order
Outcome
Costs awarded to Holroyd City Council in both proceedings.
Legal Topics
['costs in Class 1 Proceedings' 'costs in Class 4 Proceedings' 'development Application' 'unapproved Use of Premises' 'starch Storage']
['costs' 'planning and Environment'] ['costs in Class 1 Proceedings' 'costs in Class 4 Proceedings' 'development Application' 'unapproved Use of Premises' 'starch Storage']

Case Brief

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Procedural Posture

Class 4 and Class 1 Proceedings in the Land and Environment Court of New South Wales / Notice of Motion for Costs and Consent Costs Order

Legal Issues

  1. 1 ['Whether it was fair and reasonable to award costs to Holroyd City Council in the Class 1 proceedings.' 'Whether costs should be ordered by consent in favour of Holroyd City Council in the Class 4 proceedings.']

Ratio Decidendi

The Class 1 proceedings were brought not simply to obtain approval for starch storage but to stave off the possible success of the Council's Class 4 proceedings to stop an unapproved use. After refusal of the development application and failure of the s.82A application, the occupier did not obtain appropriate and up to date reports or make proposals addressing serious Building Code of Australia and acoustic shortcomings. Although the development application was capable of approval, very little was done to remedy its shortcomings, making it fair, reasonable, just and equitable to order costs in favour of the Council.

Court Disposition

Costs awarded to Holroyd City Council in both proceedings.

Orders

  • ['In Matter 10458 of 2007, the Applicants pay the costs of the Respondent Council, as agreed or assessed.' "In Matter 41251 of 2006, by consent, the Respondents pay the Applicant's costs, as agreed or assessed." 'The parties have liberty to apply on 7 days notice.' 'The Council is entitled to its costs of the notice...