RCM Constructions Pty Limited & Anor v Ryde City Council (No. 2) [2004] NSWLEC 361

RCM Constructions Pty Limited & Anor v Ryde City Council (No. 2) [2004] NSWLEC 361

It was not fair and reasonable to order costs for either party. The council succeeded on the existing use issue because of the residential district proclamation, but it ought to have been aware of and disclosed that proclamation earlier and had previously misled the landowner by stating that the use had existing use protection. Conversely, the applicants were not entitled to costs because, after the proclamation was produced at the commencement of the hearing, they chose to argue that it did not apply to the use on the land.

Jurisdiction
Australia
Judgment Date
20 July 2004
Procedural Posture
Planning Appeal Costs Application / Application for Costs After Determination of Separate Questions in an Appeal Against Deemed Refusal of a Development Application
Outcome
No order as to costs.
Legal Topics
['costs in Planning Appeals' 'existing Use Rights' 'prohibited Development' 'separate Questions']
['planning and Environment Law' 'civil Procedure'] ['costs in Planning Appeals' 'existing Use Rights' 'prohibited Development' 'separate Questions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Planning Appeal Costs Application / Application for Costs After Determination of Separate Questions in an Appeal Against Deemed Refusal of a Development Application

Legal Issues

  1. 1 ["Whether it was fair and reasonable in the circumstances to order the applicants to pay the council's costs of the hearing of separate questions." "Whether it was fair and reasonable in the circumstances to order the council to pay the applicants' costs, at least until the commencement of the hearing." "Whether the council's belated production of the residential district proclamation and earlier statements about existing use rights affected the costs discretion."]

Ratio Decidendi

It was not fair and reasonable to order costs for either party. The council succeeded on the existing use issue because of the residential district proclamation, but it ought to have been aware of and disclosed that proclamation earlier and had previously misled the landowner by stating that the use had existing use protection. Conversely, the applicants were not entitled to costs because, after the proclamation was produced at the commencement of the hearing, they chose to argue that it did not apply to the use on the land.

Court Disposition

No order as to costs.

Orders

  • ['No order as to the costs of the hearing of the separate questions.' 'No order for the costs of the hearing of the applications for costs.']