McDonald's Australia Limited v Ashfield Council (No 2) [2012] NSWLEC 268

McDonald's Australia Limited v Ashfield Council (No 2) [2012] NSWLEC 268

The Court dismissed the Council's motion because s 97B did not apply where the applicant had been clearly directed by the Court to reconsider and amend its proposal, and in any event the amendments were minor in the context of s 97B: they focused on external appearance, did not change the development concept, raised no new issues, were not significantly different from the proposal before the Commissioner, and largely adopted the Council expert's evidence. A costs order under r 3.7 was also not fair and reasonable because merely making amendments is generally insufficient to displace the presumption against costs in Class 1 proceedings, the earlier amendments had already been the subject...

Jurisdiction
Australia
Judgment Date
14 December 2012
Procedural Posture
Class 1 Appeal Concerning Refusal of a Development Application / Respondent's Notice of Motion for Costs After the Substantive Development Appeal Was Upheld in Amended Form
Outcome
Respondent's notice of motion dismissed; costs of the motion stood over for further hearing.
Legal Topics
['costs in Class 1 Proceedings' 'amended Development Application' 'environmental Planning and Assessment Act 1979 S 97 B' 'land and Environment Court Rules 2007 R 3.7' 'minor Amendments' 'amber Light Amendments']
['environmental Planning and Assessment' 'land and Environment' 'costs'] ['costs in Class 1 Proceedings' 'amended Development Application' 'environmental Planning and Assessment Act 1979 S 97 B' 'land and Environment Court Rules 2007 R 3.7' 'minor Amendments' 'amber Light Amendments']

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Procedural Posture

Class 1 Appeal Concerning Refusal of a Development Application / Respondent's Notice of Motion for Costs After the Substantive Development Appeal Was Upheld in Amended Form

Legal Issues

  1. 1 ["Whether s 97B of the Environmental Planning and Assessment Act 1979 required a costs order against the applicant for amendments made after the Commissioner's interim findings." 'Whether the amendments were minor within the meaning of s 97B.' "Whether it was fair and reasonable under Land and Environment Court Rules 2007 r 3.7 to order the applicant to pay the respondent's costs incurred after 28 February 2011." "Whether costs of the respondent's notice of motion should be determined immediately or after further hearing."]

Ratio Decidendi

The Court dismissed the Council's motion because s 97B did not apply where the applicant had been clearly directed by the Court to reconsider and amend its proposal, and in any event the amendments were minor in the context of s 97B: they focused on external appearance, did not change the development concept, raised no new issues, were not significantly different from the proposal before the Commissioner, and largely adopted the Council expert's evidence. A costs order under r 3.7 was also not fair and reasonable because merely making amendments is generally insufficient to displace the presumption against costs in Class 1 proceedings, the earlier amendments had already been the subject...

Court Disposition

Respondent's notice of motion dismissed; costs of the motion stood over for further hearing.

Orders

  • ["The respondent's notice of motion is dismissed." 'The parties are to approach the Registrar within seven days to obtain a date for a further hearing on the costs of the motion.' "All exhibits are retained pending the court's decision on the costs of the motion."]