Fobafe Pty Limited v Marrickville City Council [1999] NSWLEC 125

Fobafe Pty Limited v Marrickville City Council [1999] NSWLEC 125

Exceptional circumstances were not established. The third development application was not before the council in identical circumstances to the earlier applications because the council had before it a resident's objection and an adverse police report. The council was entitled to rely on those materials, carefully assessed the application, and its refusal was not shown to be unreasonable, irrational, frivolous, capricious, mala fide, obviously untenable, or lacking proper consideration. Because the proceedings remained Class 1 proceedings, the practice direction applied to both motions and no costs order was warranted.

Jurisdiction
Australia
Judgment Date
08 June 1999
Procedural Posture
Class 1 Planning and Development Proceedings; Notice of Motion for Costs / Post Appeal Costs Motions After Commissioner Brown Upheld the Development Appeal
Outcome
Both notices of motion were dismissed and no order as to costs was made in respect of either motion.
Legal Topics
['development Application' 'planning Appeal' 'exceptional Circumstances for Costs in Class 1 Proceedings' 'extended Hotel Trading Hours']
['planning and Environment Law' 'costs'] ['development Application' 'planning Appeal' 'exceptional Circumstances for Costs in Class 1 Proceedings' 'extended Hotel Trading Hours']

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Procedural Posture

Class 1 Planning and Development Proceedings; Notice of Motion for Costs / Post Appeal Costs Motions After Commissioner Brown Upheld the Development Appeal

Legal Issues

  1. 1 ["Whether exceptional circumstances justified an order that the council pay the applicant's costs of the Class 1 proceedings." "Whether the council's refusal of the development application was irrational, frivolous, capricious, obviously untenable, unreasonable, or otherwise devoid of merit." "Whether the council should receive costs of the applicant's unsuccessful costs motion, including on an indemnity basis."]

Ratio Decidendi

Exceptional circumstances were not established. The third development application was not before the council in identical circumstances to the earlier applications because the council had before it a resident's objection and an adverse police report. The council was entitled to rely on those materials, carefully assessed the application, and its refusal was not shown to be unreasonable, irrational, frivolous, capricious, mala fide, obviously untenable, or lacking proper consideration. Because the proceedings remained Class 1 proceedings, the practice direction applied to both motions and no costs order was warranted.

Court Disposition

Both notices of motion were dismissed and no order as to costs was made in respect of either motion.

Orders

  • ['The Notice of Motion of the applicant be dismissed.' 'The Notice of Motion of the Respondent be dismissed.' 'There be no order as to costs in respect of either motion.']