Port Stephens Council v Jeffrey Sansom [2007] NSWCA 299

Port Stephens Council v Jeffrey Sansom [2007] NSWCA 299

No error of law was established. Pain J took into account that the Council had succeeded on a question that meant the Class 1 appeal could not proceed; the overlap between characterisation of the proposed development and matters that could arise in a merits hearing was not irrelevant; and her reference to non-discouragement was properly understood as reflecting the basic rule in Pt 16 r 4 rather than as an impermissible presumptive principle. The fair and reasonable test did not require costs to follow the event merely because a separate question of prohibited development or capacity was determined.

Jurisdiction
Australia
Judgment Date
25 October 2007
Procedural Posture
Appeal on a Question of Law From Costs Decision in Class 1 Land and Environment Court Proceedings / Court of Appeal Judgment on Appeal From Pain J's Order That Each Party Pay Its Own Costs of a Separate Question
Outcome
Appeal dismissed with costs.
Legal Topics
['land and Environment Court Rules Pt 16, R 4' 'fair and Reasonable Costs Test' 'class 1 Planning Appeal' 'preliminary Question of Law' 'prohibited Development' 'judicial Discretion' 'no Discouragement Principle']
['environment and Planning' 'costs' 'administrative Law'] ['land and Environment Court Rules Pt 16, R 4' 'fair and Reasonable Costs Test' 'class 1 Planning Appeal' 'preliminary Question of Law' 'prohibited Development' 'judicial Discretion' 'no Discouragement Principle']

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Procedural Posture

Appeal on a Question of Law From Costs Decision in Class 1 Land and Environment Court Proceedings / Court of Appeal Judgment on Appeal From Pain J's Order That Each Party Pay Its Own Costs of a Separate Question

Legal Issues

  1. 1 ['Whether Pain J erred in deciding that each party should pay its own costs of the hearing of the separate question.' 'Whether the fact that the development was prohibited, or that the separate question concerned capacity or permissibility, required or presumptively supported a costs order.' 'Whether Pain J took into account an irrelevant consideration by referring to overlap between the preliminary question and merits review issues.' 'Whether Pain J impermissibly relied on the non-discouragement principle under Pt 16 r 4 of the Land and Environment Court Rules.']

Ratio Decidendi

No error of law was established. Pain J took into account that the Council had succeeded on a question that meant the Class 1 appeal could not proceed; the overlap between characterisation of the proposed development and matters that could arise in a merits hearing was not irrelevant; and her reference to non-discouragement was properly understood as reflecting the basic rule in Pt 16 r 4 rather than as an impermissible presumptive principle. The fair and reasonable test did not require costs to follow the event merely because a separate question of prohibited development or capacity was determined.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal should be dismissed with costs.']