Care and Anor v Canterbury City Council [2001] NSWLEC 169

Care and Anor v Canterbury City Council [2001] NSWLEC 169

The circumstances were exceptional and justified a costs order because the Council knew that Rima, not the applicants, operated the unauthorised shoe retailing use, knew of the landlord and tenant relationship for a lengthy period, issued notices directing the applicants to cease a use they were not themselves conducting, and allowed the matter to proceed despite a serious defect identified by the Commissioner in failing to give the tenant an opportunity to be heard where its rights would be affected. The applicants therefore should not have to carry their own costs.

Jurisdiction
Australia
Judgment Date
21 June 2001
Procedural Posture
Class 1 Proceedings Concerning an Order Under S 121 B of the Environmental Planning and Assessment Act 1979 / Notice of Motion Seeking Costs in Respect of the Hearing Conducted by Commissioner Nott on 10 April 2001
Outcome
Applicants' motion for costs granted.
Legal Topics
['costs in Class 1 Proceedings' 'section 121 B Orders' 'validity and Effect of Statutory Notices' 'exceptional Circumstances for Costs']
['environmental Planning and Assessment' 'land and Environment Court Procedure' 'costs'] ['costs in Class 1 Proceedings' 'section 121 B Orders' 'validity and Effect of Statutory Notices' 'exceptional Circumstances for Costs']

Case Brief

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Procedural Posture

Class 1 Proceedings Concerning an Order Under S 121 B of the Environmental Planning and Assessment Act 1979 / Notice of Motion Seeking Costs in Respect of the Hearing Conducted by Commissioner Nott on 10 April 2001

Legal Issues

  1. 1 ['Whether the applicants should have their costs of the appearance before Commissioner Nott.' 'Whether the matter should be treated as an ordinary Class 1 planning or building matter for costs purposes.' 'Whether exceptional circumstances justified an order for costs against the Council.' "Whether the Council's issue and maintenance of the s 121B notices to the owners, rather than to the tenant/operator or also to the tenant/operator, made the circumstances out of the ordinary."]

Ratio Decidendi

The circumstances were exceptional and justified a costs order because the Council knew that Rima, not the applicants, operated the unauthorised shoe retailing use, knew of the landlord and tenant relationship for a lengthy period, issued notices directing the applicants to cease a use they were not themselves conducting, and allowed the matter to proceed despite a serious defect identified by the Commissioner in failing to give the tenant an opportunity to be heard where its rights would be affected. The applicants therefore should not have to carry their own costs.

Court Disposition

Applicants' motion for costs granted.

Orders

  • ["The applicants' costs of these proceedings including the motion today be met by the respondent."]