Parkes v Byron Shire Council [2004] NSWLEC 722

Parkes v Byron Shire Council [2004] NSWLEC 722

Where preliminary questions raised in class 1 proceedings go to the lawfulness and permissibility of development, and are litigated as ordinary questions of law rather than merits review, it is appropriate, fair, and reasonable to make an order for costs in favour of the successful party; such orders should be confined to costs of motions rather than the entire proceedings unless justified.

Jurisdiction
Australia
Judgment Date
22 November 2004
Procedural Posture
Class 1 Proceedings / Motion Determining Preliminary Questions, Costs Orders
Outcome
Orders for costs to be made in favour of Byron Shire Council for motions before Lloyd J and Cowdroy J, as well as for proceedings before McClellan J; formal orders and quantum to be determined after further discussion between parties.
Legal Topics
['costs in Class 1 Proceedings' 'permissibility of Development' 'definition of Tourist Facility' 'adjournment Motions']
['planning and Environment'] ['costs in Class 1 Proceedings' 'permissibility of Development' 'definition of Tourist Facility' 'adjournment Motions']

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Procedural Posture

Class 1 Proceedings / Motion Determining Preliminary Questions, Costs Orders

Legal Issues

  1. 1 ['Whether the applications for consent to develop tourist facilities are permissible' 'Whether costs should be awarded for motions raising preliminary legal questions' 'Appropriate quantification and scope of costs orders']

Ratio Decidendi

Where preliminary questions raised in class 1 proceedings go to the lawfulness and permissibility of development, and are litigated as ordinary questions of law rather than merits review, it is appropriate, fair, and reasonable to make an order for costs in favour of the successful party; such orders should be confined to costs of motions rather than the entire proceedings unless justified.

Court Disposition

Orders for costs to be made in favour of Byron Shire Council for motions before Lloyd J and Cowdroy J, as well as for proceedings before McClellan J; formal orders and quantum to be determined after further discussion between parties.

Orders

  • ['Order for costs of motions before Lloyd J in both proceedings in favour of Byron Shire Council.' 'Order for costs of motion before Cowdroy J in favour of Byron Shire Council.' 'Order for costs of proceedings before McClellan J in favour of Byron Shire Council; quantum to be determined after discussion.']