El Cheikh v Hurstville City Council [2003] NSWLEC 127

El Cheikh v Hurstville City Council [2003] NSWLEC 127

No exceptional circumstances justified departure from the ordinary practice of making no order as to costs in planning appeals. The council had already paid costs relating to the invalidity of Amendment No. 23; its later height control applied generally throughout 3(c) zones and was not shown to have been made to frustrate the applicant's development application; planning instruments affecting pending appeals are commonly made and must be considered under s 79C; the absence of a savings clause was not exceptional; late raising of Amendments No. 35 and No. 38 and SEPP No. 65 was not exceptional; and requiring the applicant's architect for cross-examination was not unreasonable because a...

Jurisdiction
Australia
Judgment Date
26 May 2003
Procedural Posture
Costs Application in Class 1 Planning Appeal Concerning Deemed Refusal of a Development Application / Notice of Motion for Costs After Commissioner Dismissed the Applicant's Appeal; Respondent Also Applied for Costs of the Final Hearing Day
Outcome
The applicant's notice of motion for costs was dismissed with costs; the respondent's notice of motion for costs was dismissed with no order for costs on that application.
Legal Topics
['costs in Planning Appeals' 'exceptional Circumstances' 'development Assessment' 'environmental Planning Instruments' 'development Standards']
['planning and Environment Law' 'costs'] ['costs in Planning Appeals' 'exceptional Circumstances' 'development Assessment' 'environmental Planning Instruments' 'development Standards']

Case Brief

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Procedural Posture

Costs Application in Class 1 Planning Appeal Concerning Deemed Refusal of a Development Application / Notice of Motion for Costs After Commissioner Dismissed the Applicant's Appeal; Respondent Also Applied for Costs of the Final Hearing Day

Legal Issues

  1. 1 ["Whether exceptional circumstances justified ordering the successful respondent council to pay the unsuccessful applicant's costs of the Class 1 appeal." "Whether the council's invalid making of Amendment No. 23, later planning amendments, absence of a savings provision, or late reliance on Amendments No. 35 and No. 38 and SEPP No. 65 justified a departure from the ordinary no-costs practice in planning appeals." 'Whether the respondent should receive costs of the final hearing day on the basis that the appeal was bound to fail without a SEPP No. 1 objection.']

Ratio Decidendi

No exceptional circumstances justified departure from the ordinary practice of making no order as to costs in planning appeals. The council had already paid costs relating to the invalidity of Amendment No. 23; its later height control applied generally throughout 3(c) zones and was not shown to have been made to frustrate the applicant's development application; planning instruments affecting pending appeals are commonly made and must be considered under s 79C; the absence of a savings clause was not exceptional; late raising of Amendments No. 35 and No. 38 and SEPP No. 65 was not exceptional; and requiring the applicant's architect for cross-examination was not unreasonable because a...

Court Disposition

The applicant's notice of motion for costs was dismissed with costs; the respondent's notice of motion for costs was dismissed with no order for costs on that application.

Orders

  • ["The applicant's notice of motion for costs dated 27 November 2002 is dismissed." "The respondent's notice of motion for costs dated 4 February 2003 is dismissed." "The applicant must pay the respondent's costs of the notice of motion for costs dated 27 November 2002."]