ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256

ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256

It was fair and reasonable to order costs against the Council because the evidence available to the Council, including its own expert and director's advice and later expert evidence, supported approval of the modification application; there was no reasonable evidentiary basis for the Council's threshold, planning, air quality, traffic and amenity objections; the Council raised over 20 issues, many without reasonable grounds or foundation; and the morbidity issue relied on in resisting costs was not squarely or precisely pleaded in the amended statement of issues.

Jurisdiction
Australia
Judgment Date
26 April 2006
Procedural Posture
Class 1 Appeal Costs Application Concerning Refusal of a S 96 Modification Application / Costs Determination After the Applicant Succeeded in the Appeal
Outcome
Costs ordered for the applicant against the Council.
Legal Topics
['modification of Development Consent' 'crematorium Use Intensification' 'statement of Issues' 'resident Objections' 'expert Evidence' 'unreasonable Conduct in Proceedings' 'costs in Class 1 Proceedings']
['environmental Planning and Assessment' 'practice and Procedure' 'costs'] ['modification of Development Consent' 'crematorium Use Intensification' 'statement of Issues' 'resident Objections' 'expert Evidence' 'unreasonable Conduct in Proceedings' 'costs in Class 1 Proceedings']

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Procedural Posture

Class 1 Appeal Costs Application Concerning Refusal of a S 96 Modification Application / Costs Determination After the Applicant Succeeded in the Appeal

Legal Issues

  1. 1 ["Whether it was fair and reasonable to order the Council to pay the applicant's costs of the appeal after the applicant succeeded in the Class 1 proceedings." 'Whether the Council acted unreasonably in maintaining opposition to the s 96 modification appeal despite expert evidence supporting approval of the modification application.' 'Whether the Council acted unreasonably by raising numerous issues without reasonable grounds or evidentiary foundation and by failing to particularise the alleged morbidity or amenity issue with precision.' "Whether the Council's reliance on residents' concerns justified its opposition to the appeal."]

Ratio Decidendi

It was fair and reasonable to order costs against the Council because the evidence available to the Council, including its own expert and director's advice and later expert evidence, supported approval of the modification application; there was no reasonable evidentiary basis for the Council's threshold, planning, air quality, traffic and amenity objections; the Council raised over 20 issues, many without reasonable grounds or foundation; and the morbidity issue relied on in resisting costs was not squarely or precisely pleaded in the amended statement of issues.

Court Disposition

Costs ordered for the applicant against the Council.

Orders

  • ["The Council pay the applicant's costs of the appeal as agreed or assessed." "The Council pay the applicant's costs of the application for costs, as agreed or assessed."]