Cohen & Anor. v. Wyong Shire Council [2005] NSWCA 46

Cohen & Anor. v. Wyong Shire Council [2005] NSWCA 46

It was justified for the lower court to make orders for removal and costs as at least one of the Environmental Planning & Assessment Act 1979 or the Local Government Act 1993 was breached. However, the appellants were inadvertently denied procedural fairness below in relation to the discretion and costs issues due to not being afforded a full opportunity to present their discretionary case, particularly regarding cross-examination and the Council's stance on development applications. This justified substituting the costs order so the appellants pay one-half of the Council's costs.

Jurisdiction
Australia
Judgment Date
08 March 2005
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed in part; otherwise dismissed.
Legal Topics
['building Control' 'demountable Structures' 'temporary Structures' 'development Consent' 'costs' 'procedural Fairness']
['local Government' 'town Planning'] ['building Control' 'demountable Structures' 'temporary Structures' 'development Consent' 'costs' 'procedural Fairness']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether the demountable office and shipping container were 'buildings' or 'temporary structures' under the relevant legislation" 'Whether development consent was required for placement of these structures' 'Whether the appellants were denied procedural fairness in the lower court' 'Whether the order for costs made by the primary judge should be reviewed']

Ratio Decidendi

It was justified for the lower court to make orders for removal and costs as at least one of the Environmental Planning & Assessment Act 1979 or the Local Government Act 1993 was breached. However, the appellants were inadvertently denied procedural fairness below in relation to the discretion and costs issues due to not being afforded a full opportunity to present their discretionary case, particularly regarding cross-examination and the Council's stance on development applications. This justified substituting the costs order so the appellants pay one-half of the Council's costs.

Court Disposition

Appeal allowed in part; otherwise dismissed.

Orders

  • ["The order for costs made by the primary judge is set aside and substituted with an order that the appellants pay one-half of the Council's costs of the proceedings." 'Each side to bear its own costs of the appeal.']