Awesome Corowa Pty Ltd v Federation Council (No 2) [2022] NSWLEC 93

Awesome Corowa Pty Ltd v Federation Council (No 2) [2022] NSWLEC 93

The Council did not establish circumstances sufficient to overcome the presumptive rule in r 3.7(2). The Applicants did not unacceptably delay in providing the VPA given the history of Council communications and the later emergence of Council's position that it would not provide essential services; the history of ecological assessment did not show a failure to provide information required by law or necessary for proper understanding of the application; and the dispute about off-site road reserve works and vegetation was a contested merits issue on which the Applicants were unsuccessful, not unreasonable conduct. No other circumstances made a costs order in the Council's favour fair and...

Jurisdiction
Australia
Judgment Date
02 August 2022
Procedural Posture
Class 1 Costs Application in Land and Environment Court Proceedings Concerning a Development Application Appeal / Respondent's Notice of Motion Dated 26 November 2021 Seeking Its Costs After the Applicants' Development Application Appeal Was Dismissed
Outcome
The Respondent's notice of motion seeking costs was dismissed, and the Respondent was ordered to pay the Applicants' costs of the costs application.
Legal Topics
['costs in Class 1 Proceedings' 'land and Environment Court Rules 2007 (nsw), R 3.7' 'fair and Reasonable Costs Order' 'no Discouragement Principle' 'development Application Deemed Refusal Appeal' 'essential Services Under Cl 7.9 of the Corowa Local Environment Plan 2012' 'terrestrial Biodiversity Under Cl 7.4 of the Corowa Local Environment Plan 2012' 'voluntary Planning Agreement' "sloane's Froglet" 'off Site Works and Road Reserve Vegetation']
['costs' 'environmental Planning and Assessment' 'land and Environment Court Procedure'] ['costs in Class 1 Proceedings' 'land and Environment Court Rules 2007 (nsw), R 3.7' 'fair and Reasonable Costs Order' 'no Discouragement Principle' 'development Application Deemed Refusal Appeal' 'essential Services Under Cl 7.9 of the Corowa Local Environment Plan 2012' 'terrestrial Biodiversity Under Cl 7.4 of the Corowa Local Environment Plan 2012' 'voluntary Planning Agreement' "sloane's Froglet" 'off Site Works and Road Reserve Vegetation']

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Procedural Posture

Class 1 Costs Application in Land and Environment Court Proceedings Concerning a Development Application Appeal / Respondent's Notice of Motion Dated 26 November 2021 Seeking Its Costs After the Applicants' Development Application Appeal Was Dismissed

Legal Issues

  1. 1 ["Whether it was fair and reasonable under r 3.7 of the Land and Environment Court Rules 2007 (NSW) to order the Applicants to pay the Respondent's costs of the Class 1 proceedings." 'Whether the Applicants failed to provide, or unreasonably delayed in providing, information or documents required by law or necessary for proper consideration of the application.' "Whether the Applicants acted unreasonably in the conduct of the proceedings in relation to essential services, a Voluntary Planning Agreement, Sloane's Froglet assessment, and works in the road reserve."]

Ratio Decidendi

The Council did not establish circumstances sufficient to overcome the presumptive rule in r 3.7(2). The Applicants did not unacceptably delay in providing the VPA given the history of Council communications and the later emergence of Council's position that it would not provide essential services; the history of ecological assessment did not show a failure to provide information required by law or necessary for proper understanding of the application; and the dispute about off-site road reserve works and vegetation was a contested merits issue on which the Applicants were unsuccessful, not unreasonable conduct. No other circumstances made a costs order in the Council's favour fair and...

Court Disposition

The Respondent's notice of motion seeking costs was dismissed, and the Respondent was ordered to pay the Applicants' costs of the costs application.

Orders

  • ["The Respondent's notice of motion dated 26 November 2021 is dismissed." "The Respondent is to pay the Applicants' costs of the costs application."]