Ralli v Ku-ring-gai Council [2005] NSWLEC 751

Ralli v Ku-ring-gai Council [2005] NSWLEC 751

Although the fence was structurally sound and the council was to be directed to issue a building certificate subject to an agreed landscaping condition, the applicant had not succeeded entirely and unconditionally because the fence was only just acceptable, required additional landscaping, and would likely have required further modification if considered as a development application. It was therefore not fair and reasonable to award the applicant costs. The council's application for costs of the costs application was also refused because the matter was already before the Court and the applicant's pursuit of costs was not so unreasonable as to warrant that order.

Jurisdiction
Australia
Judgment Date
14 December 2005
Procedural Posture
Appeal Against Refusal of an Application for a Building Certificate for a Front Fence Constructed Without Development Consent / Extempore Judgment Following a Binding Conference Under S 34 of the Land and Environment Court Act 1979, Dealing With Costs and Final Orders
Outcome
Council directed to issue the building certificate subject to an agreed condition; both costs applications dismissed.
Legal Topics
['building Certificate Application' 'unapproved Structure' 'front Fence' 'streetscape Impacts' 'binding Conference' 'costs Applications']
['planning and Environment' 'local Government' 'costs'] ['building Certificate Application' 'unapproved Structure' 'front Fence' 'streetscape Impacts' 'binding Conference' 'costs Applications']

Case Brief

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Procedural Posture

Appeal Against Refusal of an Application for a Building Certificate for a Front Fence Constructed Without Development Consent / Extempore Judgment Following a Binding Conference Under S 34 of the Land and Environment Court Act 1979, Dealing With Costs and Final Orders

Legal Issues

  1. 1 ['Whether the council should be directed to issue a building certificate for the front fence subject to a landscaping condition' 'Whether the applicant should be awarded costs of the proceedings' 'Whether the council should be awarded $500 for its costs of dealing with the costs application']

Ratio Decidendi

Although the fence was structurally sound and the council was to be directed to issue a building certificate subject to an agreed landscaping condition, the applicant had not succeeded entirely and unconditionally because the fence was only just acceptable, required additional landscaping, and would likely have required further modification if considered as a development application. It was therefore not fair and reasonable to award the applicant costs. The council's application for costs of the costs application was also refused because the matter was already before the Court and the applicant's pursuit of costs was not so unreasonable as to warrant that order.

Court Disposition

Council directed to issue the building certificate subject to an agreed condition; both costs applications dismissed.

Orders

  • ['The council is directed to issue the building certificate subject to the condition handed up as the agreed position.' 'The application for costs of the proceedings is dismissed.' 'The application for costs of the hearing of the costs application is dismissed.']