Crescent Newcastle Pty Ltd v Newcastle City Council and Friends of King Edward Park Inc [2021] NSWLEC 143

Crescent Newcastle Pty Ltd v Newcastle City Council and Friends of King Edward Park Inc [2021] NSWLEC 143

It was not fair and reasonable in the circumstances to order Crescent to pay FOKEP's costs. Although Crescent was on notice that FOKEP would raise alleged jurisdictional issues, those issues involved legal and factual matters of nicety, had not been determined, and Crescent reasonably took a different view and continued the appeal. The Court would not treat the discontinuance as if FOKEP had succeeded on those issues. The transcript indicated Crescent discontinued after more granular matters about the environmental impacts of grouting works were raised during the hearing and Crescent made a tactical assessment that it might not have evidence the Commissioner required. That conduct was not...

Jurisdiction
Australia
Judgment Date
30 November 2021
Procedural Posture
Class 1 Costs Motion in Land and Environment Court Proceedings Concerning a Discontinued Development Application Appeal / Notice of Motion by Friends of King Edward Park Inc Seeking Costs After Crescent Newcastle Pty Ltd Discontinued the Primary Class 1 Appeal Proceedings on the Fourth Day of Hearing
Outcome
The notice of motion was dismissed; no order was made for costs of the primary Class 1 appeal proceedings or for costs of the motion.
Legal Topics
['land and Environment Court Class 1 Proceedings' 'costs Discretion Under R 3.7 of the Land and Environment Court Rules 2007 (nsw)' 'discontinuance of Proceedings' 'development Application Appeal' 'jurisdictional Preconditions to Development Consent' 'owners Consent' 'earthworks and Grouting Works']
['environment and Planning' 'civil Procedure' 'costs'] ['land and Environment Court Class 1 Proceedings' 'costs Discretion Under R 3.7 of the Land and Environment Court Rules 2007 (nsw)' 'discontinuance of Proceedings' 'development Application Appeal' 'jurisdictional Preconditions to Development Consent' 'owners Consent' 'earthworks and Grouting Works']

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Procedural Posture

Class 1 Costs Motion in Land and Environment Court Proceedings Concerning a Discontinued Development Application Appeal / Notice of Motion by Friends of King Edward Park Inc Seeking Costs After Crescent Newcastle Pty Ltd Discontinued the Primary Class 1 Appeal Proceedings on the Fourth Day of Hearing

Legal Issues

  1. 1 ["Whether it was fair and reasonable under r 3.7 of the Land and Environment Court Rules 2007 (NSW) to order Crescent Newcastle Pty Ltd to pay Friends of King Edward Park Inc's costs of the discontinued Class 1 appeal proceedings." 'Whether Crescent acted unreasonably by commencing or continuing the appeal proceedings despite jurisdictional issues raised by Friends of King Edward Park Inc concerning owners consent, cl 6.2 of the Newcastle Local Environmental Plan 2012, and assessment of grouting works.' 'Whether the discontinuance on the fourth day of hearing, in light of matters raised during opening submissions about the environmental impacts of grouting works, justified a costs order.' 'Whether Crescent should receive its costs of successfully resisting the costs motion.']

Ratio Decidendi

It was not fair and reasonable in the circumstances to order Crescent to pay FOKEP's costs. Although Crescent was on notice that FOKEP would raise alleged jurisdictional issues, those issues involved legal and factual matters of nicety, had not been determined, and Crescent reasonably took a different view and continued the appeal. The Court would not treat the discontinuance as if FOKEP had succeeded on those issues. The transcript indicated Crescent discontinued after more granular matters about the environmental impacts of grouting works were raised during the hearing and Crescent made a tactical assessment that it might not have evidence the Commissioner required. That conduct was not...

Court Disposition

The notice of motion was dismissed; no order was made for costs of the primary Class 1 appeal proceedings or for costs of the motion.

Orders

  • ['The notice of motion filed on 22 April 2021 by Friends of King Edward Park Inc is dismissed.' 'No order is made in respect of the costs incurred in the primary Class 1 appeal proceedings filed on 18 September 2019 by Crescent Newcastle Pty Ltd and discontinued on 18 February 2021.' 'No order is made in respect of...