Newcastle City Council v Winwood [2005] NSWLEC 294

Newcastle City Council v Winwood [2005] NSWLEC 294

The proceedings were reasonably commenced after the Respondent demolished the verandah without development consent and failed to give the requested undertaking, but the Council's claim was only partially satisfied because reinstatement of the verandah was not achieved and the matter was being unilaterally discontinued. The Respondent had not acted so unreasonably as to justify a full costs order against him, and there was no basis to award the Respondent his costs. In the exercise of the Court's costs discretion, the Respondent was ordered to pay half the Applicant's costs of the proceedings, with each party to bear its own costs of the costs hearing.

Jurisdiction
Australia
Judgment Date
03 June 2005
Procedural Posture
Class 4 Civil Enforcement Proceedings Commenced Pursuant to S 123 of the Environmental Planning and Assessment Act 1979 / Costs Application Where There Had Been No Final Determination on the Merits and the Council Intended to Discontinue the Proceedings
Outcome
The Council received half its costs of the proceedings; each party was ordered to pay its own costs of the costs hearing.
Legal Topics
['unauthorised Demolition Without Development Consent' 'heritage Conservation Area' 'civil Enforcement Proceedings' 'costs After Partial Satisfaction of Claim' 'discontinuance Without Merits Determination']
['environmental Planning and Assessment' 'land and Environment Court Procedure' 'costs'] ['unauthorised Demolition Without Development Consent' 'heritage Conservation Area' 'civil Enforcement Proceedings' 'costs After Partial Satisfaction of Claim' 'discontinuance Without Merits Determination']

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Procedural Posture

Class 4 Civil Enforcement Proceedings Commenced Pursuant to S 123 of the Environmental Planning and Assessment Act 1979 / Costs Application Where There Had Been No Final Determination on the Merits and the Council Intended to Discontinue the Proceedings

Legal Issues

  1. 1 ["Whether the Council's claim had been satisfied for the purposes of Pt 15 r 7 of the Land and Environment Court Rules 1996" 'Whether the proceedings were justifiably commenced, continued and settled' 'Whether the Respondent acted so unreasonably that the Council should obtain its costs despite there being no hearing on the merits' 'Whether the Respondent was entitled to his costs']

Ratio Decidendi

The proceedings were reasonably commenced after the Respondent demolished the verandah without development consent and failed to give the requested undertaking, but the Council's claim was only partially satisfied because reinstatement of the verandah was not achieved and the matter was being unilaterally discontinued. The Respondent had not acted so unreasonably as to justify a full costs order against him, and there was no basis to award the Respondent his costs. In the exercise of the Court's costs discretion, the Respondent was ordered to pay half the Applicant's costs of the proceedings, with each party to bear its own costs of the costs hearing.

Court Disposition

The Council received half its costs of the proceedings; each party was ordered to pay its own costs of the costs hearing.

Orders

  • ["The Respondent pay half the Applicant's costs of the proceedings." 'Each party is to pay its costs of the costs hearing on 31 May 2005.']