Boensch v Parramatta City Council (No 3) [2014] NSWLEC 15

Boensch v Parramatta City Council (No 3) [2014] NSWLEC 15

It was not reasonable for the Council to have raised Amended Contention 1 that the 1998 Consent had lapsed in the face of documentary evidence (including the letter of 22 May 2003 and survey materials on file) indicating commencement of works and fulfilment (or at least non-prohibition) with consent conditions. Council should have sought further information from the applicant rather than unequivocally asserting lapse; therefore, it is fair and reasonable to order the Council pay the applicant's costs incurred by the notice of motion and the process relating to the separate question.

Parties
Applicant: Franz Boensch; Respondent: Parramatta City Council
Jurisdiction
Australia
Judgment Date
27 February 2014
Procedural Posture
Class 1 Proceedings Costs Application / Post Merits Appeal, Costs of Interlocutory Application (notice of Motion) and Present Costs Hearing
Outcome
Application for costs partly allowed; applicant's costs of the notice of motion (separate question) to be paid by respondent; no order as to costs for hearing of present costs application; exhibits to be returned.
Legal Topics
Costs in Class 1 Proceedings, Development Consent Lapse Under S 95 EPA Act, Separate Questions in Environmental Appeals, Application of Court's Discretion on Costs, Practice Note Requirements for Contentions
Administrative Law Planning and Environment Law Civil Procedure Costs in Class 1 Proceedings Development Consent Lapse Under S 95 EPA Act Separate Questions in Environmental Appeals Application of Court's Discretion on Costs Practice Note Requirements for Contentions

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Parties

Franz Boensch

Applicant

Parramatta City Council

Respondent

Procedural Posture

Class 1 Proceedings Costs Application / Post Merits Appeal, Costs of Interlocutory Application (notice of Motion) and Present Costs Hearing

Legal Issues

  1. 1 Whether it was fair and reasonable for the respondent to pay the applicant’s costs of the notice of motion concerning a separate question about lapse of development consent
  2. 2 Whether the conduct of the Council in raising Amended Contention 1 was unreasonable considering the documentary evidence available
  3. 3 Whether the just, quick and cheap resolution objective under s 56 Civil Procedure Act and Practice Note were offended by Council’s contentions

Ratio Decidendi

It was not reasonable for the Council to have raised Amended Contention 1 that the 1998 Consent had lapsed in the face of documentary evidence (including the letter of 22 May 2003 and survey materials on file) indicating commencement of works and fulfilment (or at least non-prohibition) with consent conditions. Council should have sought further information from the applicant rather than unequivocally asserting lapse; therefore, it is fair and reasonable to order the Council pay the applicant's costs incurred by the notice of motion and the process relating to the separate question.

Court Disposition

Application for costs partly allowed; applicant's costs of the notice of motion (separate question) to be paid by respondent; no order as to costs for hearing of present costs application; exhibits to be returned.

Orders

  • Order that the respondent pay the applicant's costs of his notice of motion dated 7 June 2013, including those costs incurred in addressing the separate question ordered to be determined by Biscoe J on 26 June 2013.
  • No order as to costs of the hearing of the present application.