Tweed Shire Council v Cooke (No 2) [2023] NSWLEC 98

Tweed Shire Council v Cooke (No 2) [2023] NSWLEC 98

The Council was overwhelmingly successful on all substantive issues relating to breaches of the EPA Act. The relevant event for costs has occurred with the establishment of breaches and not the final determination of injunctive or demolition orders. Class 1 appeals and further relief are distinct and should not delay costs orders. The rejection of the Calderbank offer did not warrant an indemnity costs order as it was not unreasonable in the circumstances, given the potential to regularise development via Class 1 appeals and the offer's substance.

Jurisdiction
Australia
Judgment Date
22 September 2023
Procedural Posture
Civil Enforcement (class 4) / Costs Determination Following Declarations of Breach
Outcome
Applicant awarded costs on ordinary basis; exhibits to be returned. Indemnity costs not awarded.
Legal Topics
['costs' 'breach of Environmental Planning and Assessment Act 1979 (nsw)' 'award of Costs Following Enforcement' 'calderbank Offer' 'development Consent' 'indemnity Costs' 'civil Enforcement Proceedings']
['planning and Environmental Law' 'civil Procedure'] ['costs' 'breach of Environmental Planning and Assessment Act 1979 (nsw)' 'award of Costs Following Enforcement' 'calderbank Offer' 'development Consent' 'indemnity Costs' 'civil Enforcement Proceedings']

Case Brief

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Procedural Posture

Civil Enforcement (class 4) / Costs Determination Following Declarations of Breach

Legal Issues

  1. 1 ['Are notices of motion for costs premature given pending Class 1 appeals?' 'Should indemnity costs be awarded due to rejection of Calderbank offer?']

Ratio Decidendi

The Council was overwhelmingly successful on all substantive issues relating to breaches of the EPA Act. The relevant event for costs has occurred with the establishment of breaches and not the final determination of injunctive or demolition orders. Class 1 appeals and further relief are distinct and should not delay costs orders. The rejection of the Calderbank offer did not warrant an indemnity costs order as it was not unreasonable in the circumstances, given the potential to regularise development via Class 1 appeals and the offer's substance.

Court Disposition

Applicant awarded costs on ordinary basis; exhibits to be returned. Indemnity costs not awarded.

Orders

  • ["The First and Second Respondents are to pay the Applicant's costs of proceeding 2021/364584 on an ordinary basis." "The First Respondent is to pay the Applicant's costs of proceeding 2021/364656 on an ordinary basis." 'Exhibits to be returned.']