Kogarah Council v McNicol [2001] NSWLEC 11

Land and Environment Court of New South Wales

CITATION : Kogarah Council v McNicol [2001] NSWLEC 11 APPLICANT Kogarah Council PARTIES : RESPONDENT McNicol FILE NUMBER(S) : 40107 of 2000 CORAM: Cowdroy J KEY ISSUES: Costs - Development :- council alleging unauthorised fill on land - order issued by council - non-compliance by respondent - no evidence of a breach of local environmental plan - application dismissed - costs - disbursements only awarded to successful litigant appearing in person LEGISLATION CITED: Environmental Planning and Assessment Act 1979 AF Saddington: Taxation of Costs Between Parties 13 ; Cachia v Hanes (1991) 23 NSWLR 304 CA ; CASES CITED: Guss v Veenhuizen (1976) 136 CLR 47; Holroyd City Council v Murdoch (1994) 82 LGERA 197; London Scottish Benefits Society v Chorley (1884) 13 QBD 872 DATES OF HEARING: 24/01/01, 8/02/01 EX TEMPORE JUDGMENT DATE : 02/08/2001

APPLICANT Ms S Duggan (Barrister)

SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr R McNicol (In person)

SOLICITORS n/a

JUDGMENT:

IN THE LAND AND MATTER No. 40107 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 8/02/01

Kogarah Council Applicant v

Robert Neil & Margaret Clare McNicol Respondents JUDGMENT The application

1. By amended application class four dated 24 January 2000 Kogarah Council ("the council") seeks orders requiring the removal of unauthorised fill from land known as Lot 95 and Lot 96 in DP 15597 located at 48 Walton Street Blakehurst ("the land"). The land is owned by the respondents and their brick and tile residence is erected thereon.