Twynam Investments Pty Ltd v Goulburn Mulwaree Council [2021] NSWLEC 7

Land and Environment Court New South Wales

Medium Neutral Citation: Twynam Investments Pty Ltd v Goulburn Mulwaree Council [2021] NSWLEC 7 Hearing dates: 1 February 2021 Date of orders: 4 February 2021 Decision date: 04 February 2021 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [66] Catchwords: COSTS - appeal pursuant to s 30 of the Heritage Act 1977 against the making of an interim heritage order by the Respondent - consideration of the question of whether the Ministerial Order investing the Respondent with power to make interim heritage orders - Ministerial Order mandated jurisdictional prerequisites to be satisfied prior to the power to make any interim heritage order being available to the Respondent - jurisdictional prerequisite in Sch 2(2)(d) of the Ministerial Order not satisfied - Respondent had no power to make the interim heritage order against which the Applicant had appealed - agreement between the parties that the Class 1 proceedings were appropriate to be discontinued - dispute as to costs of the proceedings upon discontinuance - Applicant applies for costs order in its favour upon discontinuance - r 3.7(2) of the Land and Environment Court Rules 2007 applies permitting costs to be awarded only if "fair and reasonable" to do so - invalidity of interim heritage order, because a jurisdictional prerequisite was not satisfied, engaged r 3.7(3)(f)(i) - appropriate to order that the Respondent pay the Applicant's costs of the Class 1 proceedings - costs to be paid as agreed or assessed. COSTS - costs of costs applications in Class 1 proceedings ordinarily follow the event - no basis to depart from this position - Respondent to pay the Applicant's costs of its costs application (excluding costs of nominated excessive photocopying) as agreed or assessed Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.5, 8.7 Heritage Act 1977, ss 4, 25, 25(4), 30 Land and Environment Court Act 1979, ss 34, 39(2) Land and Environment Court Rules 2007, rr 3.7, 3.7(2), 3.7(3)(c)-(d), 3.7(3)(f), 3.7(3)(f)(i) Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Byron Ventilink Pty Limited v Byron Shire Council (2005) 142 LGERA 215; [2005] NSWLEC 395 Forte Construction Group Pty Ltd v Inner West Council [2018] NSWLEC 1400 Grant v Kiama Municipal Council [2006] NSWLEC 70 Latoudis v Casey (1990) 170 CLR 534 Li v Willoughby City Council [2018] NSWLEC 1262 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6, (1997)186 CLR 622 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Twynam Investments Pty Ltd (formerly known as Twynam Agricultural Group Pty Ltd) v Goulburn Mulwaree Council [2020] NSWLEC 1557 Texts Cited: Government Gazette (No 130, 1 November 2019), Interim Heritage Order Curtilage Map Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy Category: Costs Parties: Twynam Investments Pty Ltd (Applicant) Goulburn Mulwaree Council (Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Ms N Hammond, barrister (Respondent)