DAVID CRANE & ASSOCIATES PTY LTD v. KOGARAH COUNCIL [1998] NSWLEC 121 (10 June 1998) [1998] NSWLEC 59

DAVID CRANE & ASSOCIATES PTY LTD v. KOGARAH COUNCIL [1998] NSWLEC 121 (10 June 1998) [1998] NSWLEC 59

In the particular circumstances, the applicant acted reasonably in discontinuing the proceeding after the commencement of the new State policy and lodging a further development application to which that policy would clearly apply. The discontinuance did not amount to abandonment of the claim, the proposed development was substantially the same, and it was not certain that the respondent's costs had been wasted. Accordingly there was no exceptional circumstance displacing the usual practice of making no costs order in planning and building appeals.

Jurisdiction
Australia
Judgment Date
10 June 1998
Procedural Posture
Class 1 Planning Appeal Costs Application / Respondent's Notice of Motion for Costs After Applicant Filed a Notice of Discontinuance
Outcome
Respondent's notice of motion for costs dismissed with costs.
Legal Topics
['class 1 Proceedings' 'notice of Discontinuance' 'exceptional Circumstances for Costs' 'development Application' 'aged Housing Development' 'change in Planning Law']
['planning and Environment Law' 'costs' 'civil Procedure'] ['class 1 Proceedings' 'notice of Discontinuance' 'exceptional Circumstances for Costs' 'development Application' 'aged Housing Development' 'change in Planning Law']

Case Brief

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Procedural Posture

Class 1 Planning Appeal Costs Application / Respondent's Notice of Motion for Costs After Applicant Filed a Notice of Discontinuance

Legal Issues

  1. 1 ["Whether the applicant's discontinuance of a Class 1 planning appeal constituted exceptional circumstances justifying an order for costs against it." 'Whether the applicant acted reasonably in discontinuing the proceeding after the commencement of a new State Environmental Planning Policy No 5 and lodging a further development application.']

Ratio Decidendi

In the particular circumstances, the applicant acted reasonably in discontinuing the proceeding after the commencement of the new State policy and lodging a further development application to which that policy would clearly apply. The discontinuance did not amount to abandonment of the claim, the proposed development was substantially the same, and it was not certain that the respondent's costs had been wasted. Accordingly there was no exceptional circumstance displacing the usual practice of making no costs order in planning and building appeals.

Court Disposition

Respondent's notice of motion for costs dismissed with costs.

Orders

  • ["The respondent's notice of motion dated 10 March 1998 is dismissed with costs."]