Cousins v Transport for NSW [2020] NSWLEC 146

Land and Environment Court New South Wales

Medium Neutral Citation: Cousins v Transport for NSW [2020] NSWLEC 146 Hearing dates: 19 and 20 October 2020 Date of orders: 21 October 2020 Decision date: 21 October 2020 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [76] Amended 22 October 2020: Pursuant to r 36.15(2) of the Uniform Civil Procedure Rules, [76(2)] amended to add the following words after "alternative costs order" so that (2) reads as follows: The Applicant is to pay the First Respondent's costs of these interlocutory proceedings as agreed or assessed unless, by 4.30 pm on Friday 23 October 2020, a party notifies the Associate to Moore J that that party wishes to be heard to propose some alternative costs order or the Applicant discontinues the proceedings with the consent of the First Respondent by 2.00 pm on Thursday 22 October 2020; and Catchwords: INTERIM INJUNCTION - proposed demolition of a bridge listed as an item of local heritage in a local environmental plan - whether the bridge constitutes a "relic" as defined in the Heritage Act 1977 (the Heritage Act) - imminent demolition of the bridge unless an interim injunction is issued - question as to whether or not the Applicant has a reasonably arguable case that demolition of the bridge would result in a breach of the Heritage Act - consideration of the basis upon which it was said that such a breach might arise - no reasonably arguable case established - injunction refused COSTS - costs in Class 4 proceedings usually follow the event - no discussion of costs during the course of the hearing - contingent costs order made requiring the unsuccessful Applicant to pay the First Respondent's costs as agreed or assessed unless a party seeks to be heard to propose some alternative costs order Legislation Cited: Heritage Act 1977, ss 4, 38, 132, 139, 153 and 154 Kyogle Local Environment Plan 2012, Sch 5 Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Latoudis v Casey (1990) 170 CLR 534 Project Blue Sky v Australian Broadcasting Authority [1998] 194 CLR 355; [1998] HCA 28 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Taylor v The Owners of Strata Plan 11564 and Others [2014] HCA 9; 253 CLR 531 Waterways Authority of New South Wales v Coal and Allied Operations Pty Limited [2005] NSWSC 1285 Texts Cited: Court's COVID-19 Pandemic Arrangements Policy Category: Procedural and other rulings Parties: Mr John Cousins (Applicant) Transport for NSW (First Respondent) Heritage Council of NSW (Second Respondent) Representation: Counsel: Ms J Walker, barrister (Applicant) Mr R Lancaster SC (First Respondent) No appearance (Second Respondent)