Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39

Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39

Even assuming the appeal was public interest litigation, the appellant failed to show additional or special circumstances warranting departure from the ordinary rule that costs follow the event. The second respondent was a commercial enterprise rather than a governmental authority, the appeal concerned a relatively discrete question of interpretation of planning instruments rather than a broad issue affecting the community or natural environment, local members had practical private amenity interests, and there was insufficient substantial evidence of something more. The costs order should therefore require the appellant to pay the second respondent's costs in this Court, including the...

Jurisdiction
Australia
Judgment Date
19 March 2010
Procedural Posture
Appeal Concerning Costs in Planning and Environmental Proceedings / Application on the Papers to Vary Costs Orders Made After Dismissal of Appeal
Outcome
Application to vary costs orders allowed in part; otherwise dismissed. Appeal remained dismissed and appellant ordered to pay the second respondent's costs in this Court.
Legal Topics
['costs Follow the Event' 'public Interest Litigation' 'land and Environment Court Class 4 Proceedings' 'development Consent Challenge' 'discretion to Depart From Ordinary Costs Rule']
['civil Procedure' 'costs' 'planning and Environment Law'] ['costs Follow the Event' 'public Interest Litigation' 'land and Environment Court Class 4 Proceedings' 'development Consent Challenge' 'discretion to Depart From Ordinary Costs Rule']

Case Brief

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Procedural Posture

Appeal Concerning Costs in Planning and Environmental Proceedings / Application on the Papers to Vary Costs Orders Made After Dismissal of Appeal

Legal Issues

  1. 1 ["Whether the unsuccessful appellant should be relieved from paying the second respondent's costs of the appeal on the basis that the proceedings were public interest litigation." 'Whether the costs order made on 11 September 2009 should be varied after the appellant had not been heard on costs.' 'Whether r 4.2 of the Land and Environment Court Rules 2007 assisted on an appeal to the Supreme Court.']

Ratio Decidendi

Even assuming the appeal was public interest litigation, the appellant failed to show additional or special circumstances warranting departure from the ordinary rule that costs follow the event. The second respondent was a commercial enterprise rather than a governmental authority, the appeal concerned a relatively discrete question of interpretation of planning instruments rather than a broad issue affecting the community or natural environment, local members had practical private amenity interests, and there was insufficient substantial evidence of something more. The costs order should therefore require the appellant to pay the second respondent's costs in this Court, including the...

Court Disposition

Application to vary costs orders allowed in part; otherwise dismissed. Appeal remained dismissed and appellant ordered to pay the second respondent's costs in this Court.

Orders

  • ["Vary the order made on 11 September 2009 with respect to costs so that the order now reads: (a) appeal dismissed; (b) appellant to pay the second respondent's costs in this Court." 'Note that the costs in this Court will include the costs of the application to vary the orders made on 11 September 2009.' 'Otherwise...