Great Lakes Council v Wilkes [2010] NSWLEC 117

Great Lakes Council v Wilkes [2010] NSWLEC 117

The Court could not be confident what the outcome of the substantive existing use rights dispute would have been. Although it was reasonable for the Council to commence proceedings once it rejected the respondents' asserted rights, and although the respondents' late development application justified the earlier costs thrown away order, neither side was shown to have a clear entitlement to the other side's substantive costs. The development consent and surrender condition did not amount to the Council achieving the relief actually sought in its Class 4 application, nor to a surrender or supervening event situation. Accordingly, each party should bear its own substantive costs except for...

Jurisdiction
Australia
Judgment Date
09 July 2010
Procedural Posture
Class 4 Proceedings Concerning Alleged Unlawful Sawmill Use and Claimed Existing Use Rights / Application for Leave to Discontinue After Development Consent Was Granted; Determination of Costs
Outcome
Leave to discontinue granted; prior costs thrown away order confirmed; otherwise each party to bear its own costs to 24 June 2009; Council to pay respondents' costs from 25 June 2009 on a party-party basis.
Legal Topics
['discontinuance of Class 4 Proceedings' 'existing Use Rights' 'development Consent' 'costs After Proceedings Become Futile' 'offers to Settle Costs' 'costs of Costs Hearing']
['environmental Planning and Assessment' 'land and Environment Court Procedure' 'costs'] ['discontinuance of Class 4 Proceedings' 'existing Use Rights' 'development Consent' 'costs After Proceedings Become Futile' 'offers to Settle Costs' 'costs of Costs Hearing']

Case Brief

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Procedural Posture

Class 4 Proceedings Concerning Alleged Unlawful Sawmill Use and Claimed Existing Use Rights / Application for Leave to Discontinue After Development Consent Was Granted; Determination of Costs

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to discontinue the Class 4 proceedings after development consent was granted.' "Whether either party should pay the other party's costs of the substantive proceedings, apart from the costs already ordered by Pain J." "Whether the applicant should pay the respondents' costs of the costs hearing after refusing offers that each party pay its own costs and refusing determination on the papers."]

Ratio Decidendi

The Court could not be confident what the outcome of the substantive existing use rights dispute would have been. Although it was reasonable for the Council to commence proceedings once it rejected the respondents' asserted rights, and although the respondents' late development application justified the earlier costs thrown away order, neither side was shown to have a clear entitlement to the other side's substantive costs. The development consent and surrender condition did not amount to the Council achieving the relief actually sought in its Class 4 application, nor to a surrender or supervening event situation. Accordingly, each party should bear its own substantive costs except for...

Court Disposition

Leave to discontinue granted; prior costs thrown away order confirmed; otherwise each party to bear its own costs to 24 June 2009; Council to pay respondents' costs from 25 June 2009 on a party-party basis.

Orders

  • ['The Council is granted leave to discontinue the proceedings.' 'Pain J\'s order of 20 March 2009 that the respondents are to pay the Council\'s "costs wasted by the hearing being vacated and the costs of [the notice of] motion" to vacate is confirmed.' 'In respect of all other costs of the proceedings up to and...