Toon v Ku-ring-gai Council (No 2) [2004] NSWLEC 593

Toon v Ku-ring-gai Council (No 2) [2004] NSWLEC 593

Because the Brooks report contained extensive enquiries, there was no evidence that the council regarded it as deficient and no satisfactory explanation for disregarding it and retaining Ms Burke, it was fair and reasonable that the council pay the applicant's costs incurred in meeting the heritage issue. However, the council's conduct was not proved to be so unreasonable as to warrant indemnity costs.

Jurisdiction
Australia
Judgment Date
05 October 2004
Procedural Posture
Class 1 Proceedings; Appeal Concerning SEPP 5 Development Costs / Costs Motion After Judgment Upholding the Applicant's Appeal Against Refusal of Development Application 165/03
Outcome
Costs ordered for the applicant in respect of heritage issues and the motion; indemnity costs refused.
Legal Topics
['development Application Refusal' 'heritage Value' 'draft Local Environmental Plan' 'indemnity Costs' 'class 1 Proceedings']
['planning and Environment' 'costs'] ['development Application Refusal' 'heritage Value' 'draft Local Environmental Plan' 'indemnity Costs' 'class 1 Proceedings']

Case Brief

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Procedural Posture

Class 1 Proceedings; Appeal Concerning SEPP 5 Development Costs / Costs Motion After Judgment Upholding the Applicant's Appeal Against Refusal of Development Application 165/03

Legal Issues

  1. 1 ["Whether it was fair and reasonable to order the council to pay the applicant's costs incurred in respect of the heritage issue." 'Whether those costs should be paid on an indemnity basis.']

Ratio Decidendi

Because the Brooks report contained extensive enquiries, there was no evidence that the council regarded it as deficient and no satisfactory explanation for disregarding it and retaining Ms Burke, it was fair and reasonable that the council pay the applicant's costs incurred in meeting the heritage issue. However, the council's conduct was not proved to be so unreasonable as to warrant indemnity costs.

Court Disposition

Costs ordered for the applicant in respect of heritage issues and the motion; indemnity costs refused.

Orders

  • ["ORDER that the respondent pay the applicant's costs incurred in these proceedings in respect of heritage issues;" "ORDER that the respondent pay the applicant's costs of this motion."]