Thesigan Moodley v Botany Bay City Council [2004] NSWLEC 59

Thesigan Moodley v Botany Bay City Council [2004] NSWLEC 59

The amended consent conditions were reasonable because they provided the level of security for future access to the rear lot considered necessary by council and a reasonable level of privacy and amenity for the front dwelling. The applicant did not present compelling evidence that the revised development applications had been dealt with inappropriately or that a costs order for the merit appeals was fair and reasonable. However, because a separate sitting was required for the costs application, it was reasonable, subject to the Chief Judge's concurrence, to compensate the respondent for expenses incurred in that costs hearing.

Jurisdiction
Australia
Judgment Date
04 March 2004
Procedural Posture
Development Application Appeals and Costs Application / Appeals Determined by Binding S 34 Conference; Subsequent Costs Application
Outcome
Both development appeals were allowed with amended consent conditions. The applicant's motion for costs of the merit appeals was dismissed. Subject to the concurrence of the Chief Judge, the applicant was ordered to pay the respondent's costs of the costs application.
Legal Topics
['development Consent Modification' 'demolition of Existing Dwelling and Construction of New Dwelling' 'easements, Covenants and Right of Way Access' 'privacy and Amenity' 'costs in Land and Environment Court Proceedings']
['planning and Environment Law' 'costs'] ['development Consent Modification' 'demolition of Existing Dwelling and Construction of New Dwelling' 'easements, Covenants and Right of Way Access' 'privacy and Amenity' 'costs in Land and Environment Court Proceedings']

Case Brief

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Procedural Posture

Development Application Appeals and Costs Application / Appeals Determined by Binding S 34 Conference; Subsequent Costs Application

Legal Issues

  1. 1 ['Whether conditions for a s 96 modification to an approved two-storey dwelling should be amended to secure satisfactory pedestrian and vehicle access to the proposed new dwelling on the rear lot.' 'Whether amended conditions for demolition of the existing dwelling and construction of a new dwelling provided a reasonable level of privacy and amenity given the common footpath right of way.' 'Whether the applicant established a fair and reasonable basis for costs of the merit appeals.' "Whether the respondent should receive costs of resisting the applicant's costs application."]

Ratio Decidendi

The amended consent conditions were reasonable because they provided the level of security for future access to the rear lot considered necessary by council and a reasonable level of privacy and amenity for the front dwelling. The applicant did not present compelling evidence that the revised development applications had been dealt with inappropriately or that a costs order for the merit appeals was fair and reasonable. However, because a separate sitting was required for the costs application, it was reasonable, subject to the Chief Judge's concurrence, to compensate the respondent for expenses incurred in that costs hearing.

Court Disposition

Both development appeals were allowed with amended consent conditions. The applicant's motion for costs of the merit appeals was dismissed. Subject to the concurrence of the Chief Judge, the applicant was ordered to pay the respondent's costs of the costs application.

Orders

  • ['Appeal No. 11438 is allowed.' 'Development Consent No. 02/386 is modified by deleting conditions, 1, 34 and 43 and replacing them with the conditions in Annexure "AA".' 'Appeal No. 11440/03 is allowed.' 'Development Consent No. DA 04/173 is granted subject to the conditions in Annexure "BB".' 'The motion for costs...