Altomonte v Hunters Hill Council [2002] NSWLEC 65

Altomonte v Hunters Hill Council [2002] NSWLEC 65

Appeals against enforcement orders under s 121B of the Environmental Planning and Assessment Act 1979 are not necessarily planning and building appeals to which Practice Direction 1993 par 10 applies. The Applicant therefore did not need to demonstrate exceptional circumstances. Exercising the discretion under s 69(2) of the Land and Environment Court Act 1979, it was appropriate to award costs because the Applicant had succeeded before Commissioner Murrell on merits grounds and arguably on legal grounds.

Jurisdiction
Australia
Judgment Date
07 June 2002
Procedural Posture
Class 1 Proceedings; Costs Application Arising From an Appeal Under S 121 ZK of the Environmental Planning and Assessment Act 1979 Against an Order Issued Under S 121 B of That Act / Determination of the Applicant's Application for Costs After Commissioner Murrell Upheld the Applicant's Appeal
Outcome
Costs awarded to the Applicant.
Legal Topics
['costs in Class 1 Proceedings' 'appeal Against Statutory Enforcement Order' 'application of Practice Direction 1993 Par 10' 'discretion to Award Costs Under S 69(2) of the Land and Environment Court Act 1979' 'validity of Order Under S 121 B of the Environmental Planning and Assessment Act 1979']
['environmental Planning and Assessment' 'land and Environment Court Procedure' 'costs'] ['costs in Class 1 Proceedings' 'appeal Against Statutory Enforcement Order' 'application of Practice Direction 1993 Par 10' 'discretion to Award Costs Under S 69(2) of the Land and Environment Court Act 1979' 'validity of Order Under S 121 B of the Environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Class 1 Proceedings; Costs Application Arising From an Appeal Under S 121 ZK of the Environmental Planning and Assessment Act 1979 Against an Order Issued Under S 121 B of That Act / Determination of the Applicant's Application for Costs After Commissioner Murrell Upheld the Applicant's Appeal

Legal Issues

  1. 1 ['Whether an order under s 121B of the Environmental Planning and Assessment Act 1979 is a planning and building appeal for the purposes of Practice Direction 1993 par 10.' 'Whether Practice Direction 1993 par 10 applied so that exceptional circumstances had to be shown before costs could be awarded.' "Whether, in the exercise of the Court's discretion under s 69(2) of the Land and Environment Court Act 1979, the Respondent should pay the Applicant's costs."]

Ratio Decidendi

Appeals against enforcement orders under s 121B of the Environmental Planning and Assessment Act 1979 are not necessarily planning and building appeals to which Practice Direction 1993 par 10 applies. The Applicant therefore did not need to demonstrate exceptional circumstances. Exercising the discretion under s 69(2) of the Land and Environment Court Act 1979, it was appropriate to award costs because the Applicant had succeeded before Commissioner Murrell on merits grounds and arguably on legal grounds.

Court Disposition

Costs awarded to the Applicant.

Orders

  • ["The Respondent pay the Applicant's costs in these proceedings."]