Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel (No 3) [2017] NSWLEC 146

Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel (No 3) [2017] NSWLEC 146

Although Butler Street's Motion raised a question of law that was preliminary to the merits and potentially determinative of the proceedings, the circumstances did not justify departure from the presumptive rule against costs in Class 1 proceedings. Council's own honest error in seeking consent for the entire development and the Panel's approach to the application led Butler Street to commence the appeal on the same footing. When Council later identified the scope issue shortly before hearing, Butler Street acted in good faith and not unreasonably by filing the Motion to clarify the scope and implications of the proceedings. The Motion, though unsuccessful and unusually framed,...

Jurisdiction
Australia
Judgment Date
31 October 2017
Procedural Posture
Class 1 Costs Application in Objector Appeal Proceedings / Notice of Motion by Byron Shire Council Seeking Costs of Butler Street's Earlier Notice of Motion
Outcome
The Costs Motion was dismissed and there was no order for costs.
Legal Topics
['costs in Class 1 Proceedings' 'presumptive Rule Against Costs' 'fair and Reasonable Costs Orders' 'interlocutory Motion Raising Jurisdictional Issue']
['planning and Environment' 'civil Procedure'] ['costs in Class 1 Proceedings' 'presumptive Rule Against Costs' 'fair and Reasonable Costs Orders' 'interlocutory Motion Raising Jurisdictional Issue']

Case Brief

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Procedural Posture

Class 1 Costs Application in Objector Appeal Proceedings / Notice of Motion by Byron Shire Council Seeking Costs of Butler Street's Earlier Notice of Motion

Legal Issues

  1. 1 ["Whether it was fair and reasonable to depart from the presumptive rule against costs in Class 1 proceedings and order Butler Street to pay Council's costs of the Motion." 'Whether the Motion involved a preliminary question of law that was potentially determinative of the proceedings within r 3.7(3)(a)(i)-(ii) of the Land and Environment Court Rules 2007.' 'Whether Butler Street acted unreasonably in filing the Motion after Council identified that consent was required only for the SEPP 14 Wetlands portion of the project.']

Ratio Decidendi

Although Butler Street's Motion raised a question of law that was preliminary to the merits and potentially determinative of the proceedings, the circumstances did not justify departure from the presumptive rule against costs in Class 1 proceedings. Council's own honest error in seeking consent for the entire development and the Panel's approach to the application led Butler Street to commence the appeal on the same footing. When Council later identified the scope issue shortly before hearing, Butler Street acted in good faith and not unreasonably by filing the Motion to clarify the scope and implications of the proceedings. The Motion, though unsuccessful and unusually framed,...

Court Disposition

The Costs Motion was dismissed and there was no order for costs.

Orders

  • ['The Notice of Motion filed 30 June 2017 by Byron Shire Council is dismissed.']