Garners Pty Ltd v Gloucester Shire Council [2012] NSWLEC 205

Garners Pty Ltd v Gloucester Shire Council [2012] NSWLEC 205

The surrender of the first development consent and modification of the second did not amount to an effective surrender by the respondents to the applicant. They were a supervening event modifying the subject of the dispute so that no issue remained except costs. The applicant also abandoned a flooding ground unrelated to the first consent, and the surrender of the first consent was the act of the second respondent, not the Council. Applying the Lai Qin and Kiama principles and analogous Land and Environment Court decisions, no order should be made as to the costs of the proceedings. Because the respondents had proposed that each party bear its own costs and the applicant maintained its...

Jurisdiction
Australia
Judgment Date
05 September 2012
Procedural Posture
Class 4 Judicial Review Proceedings Challenging the Validity of Two Development Consents / Costs Determination After Proceedings Were Discontinued by Consent
Outcome
No order as to the costs of the proceedings, subject to the applicant paying the respondents' costs of the costs hearing.
Legal Topics
['costs of Discontinued Proceedings' 'development Consents' 'surrender of Consent' 'modification of Consent' 'supervening Event' 'class 4 Proceedings']
['costs' 'planning and Environment' 'judicial Review'] ['costs of Discontinued Proceedings' 'development Consents' 'surrender of Consent' 'modification of Consent' 'supervening Event' 'class 4 Proceedings']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Challenging the Validity of Two Development Consents / Costs Determination After Proceedings Were Discontinued by Consent

Legal Issues

  1. 1 ["Whether the surrender of the first development consent and modification of the second development consent constituted an effective surrender by the respondents to the applicant attracting an order that the respondents pay the applicant's costs." 'Whether the surrender and modification constituted a supervening event or extra-curial activity so modifying the subject of the dispute that no issue remained except costs.' "Whether the applicant should pay the respondents' costs of the costs hearing."]

Ratio Decidendi

The surrender of the first development consent and modification of the second did not amount to an effective surrender by the respondents to the applicant. They were a supervening event modifying the subject of the dispute so that no issue remained except costs. The applicant also abandoned a flooding ground unrelated to the first consent, and the surrender of the first consent was the act of the second respondent, not the Council. Applying the Lai Qin and Kiama principles and analogous Land and Environment Court decisions, no order should be made as to the costs of the proceedings. Because the respondents had proposed that each party bear its own costs and the applicant maintained its...

Court Disposition

No order as to the costs of the proceedings, subject to the applicant paying the respondents' costs of the costs hearing.

Orders

  • ['Subject to Order 2, no order as to the costs of the proceedings.' "The applicant is to pay the respondents' costs of the costs hearing on 5 September 2012."]