Smyth Maher & Associates Pty Limited v Coffs Harbour City Council [2006] NSWLEC 742

Smyth Maher & Associates Pty Limited v Coffs Harbour City Council [2006] NSWLEC 742

Although the applicant obtained development consents, the outcome was a mutually appropriate resolution achieved after further information and conditions, rather than a simple success by the applicant and failure by the Council. The Council's conceded legal errors were corrected and did not have any real effect on the course of the proceedings, and the Commissioner required further ecological information consistent with matters earlier raised by the Council. It was therefore not fair and reasonable to order the Council to pay the applicant's costs. Because the respondent incurred costs in successfully opposing the applicant's notices of motion, it was fair and reasonable that the...

Jurisdiction
Australia
Judgment Date
09 November 2006
Procedural Posture
Application for Costs in Two Class 1 Planning Appeals Concerning Development Consent / After Development Consents Were Granted; Determination of the Applicant's Notices of Motion for Costs and the Respondent's Application for Costs of the Motions
Outcome
Applicant's notices of motion for costs dismissed; applicant ordered to pay respondent's costs of the motions.
Legal Topics
['costs in Class 1 Appeals' 'development Consent' 'fair and Reasonable Costs Orders' 'state Environmental Planning Policy No 1 Objections' 'ecological Information and Conditions of Consent']
['planning and Environment Law' 'civil Procedure'] ['costs in Class 1 Appeals' 'development Consent' 'fair and Reasonable Costs Orders' 'state Environmental Planning Policy No 1 Objections' 'ecological Information and Conditions of Consent']

Case Brief

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Procedural Posture

Application for Costs in Two Class 1 Planning Appeals Concerning Development Consent / After Development Consents Were Granted; Determination of the Applicant's Notices of Motion for Costs and the Respondent's Application for Costs of the Motions

Legal Issues

  1. 1 ["Whether it was fair and reasonable under Pt 16 r 4 of the Land and Environment Court Rules 1996 to order the Council to pay the applicant's costs after development consents were granted" "Whether the Council's conduct, including errors about legal requirements and requests for ecological information, justified a costs order against it" "Whether the applicant should pay the respondent's costs of the unsuccessful notices of motion for costs"]

Ratio Decidendi

Although the applicant obtained development consents, the outcome was a mutually appropriate resolution achieved after further information and conditions, rather than a simple success by the applicant and failure by the Council. The Council's conceded legal errors were corrected and did not have any real effect on the course of the proceedings, and the Commissioner required further ecological information consistent with matters earlier raised by the Council. It was therefore not fair and reasonable to order the Council to pay the applicant's costs. Because the respondent incurred costs in successfully opposing the applicant's notices of motion, it was fair and reasonable that the...

Court Disposition

Applicant's notices of motion for costs dismissed; applicant ordered to pay respondent's costs of the motions.

Orders

  • ["The applicant's notice of motion for costs is dismissed." "The applicant is to pay the respondent's costs of that motion as agreed or as assessed."]