Toon v Ku-ring-gai Council (No 2) [2004] NSWLEC 593

Land and Environment Court of New South Wales

CITATION : Toon v Ku-ring-gai Council (No 2) [2004] NSWLEC 593 APPLICANT John Toon PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11563 of 2003 CORAM: Cowdroy J KEY ISSUES: Appeal :- SEPP 5 Development - costs LEGISLATION CITED: Land and Environment Court Act 1979, s 69(2) Land and Environment Court Rules 1996, Pt 16 r 4 CASES CITED: Canterbury City Council v Roads and Traffic Authority of New South Wales [2004] NSWLEC 536; Toon v Ku-ring-gai Council [2004] NSWLEC 173 DATES OF HEARING: 05/10/2004 DATE OF JUDGMENT: 10/05/2004

APPLICANT Mr P. Tomasetti (Barrister)

SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg (Solicitor)

SOLICITORS Deacons

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Cowdroy J

5 October 2004

11563 of 2003 JOHN TOON V KU-RING-GAI COUNCIL

Judgment – No 2 costs

1 Judgment was delivered in these proceedings on 30 April 2004 (see Toon v Ku-ring-gai Council [2004] NSWLEC 173) in which the Court upheld the applicant's appeal against the respondent's ("the council's") refusal of development application 165/03. Such application sought demolition of an existing building ("the house") at 50 Pentecost Avenue, Pymble ("the site") and erection of a development for older people or people with a disability. 2 The applicant seeks an order that the council pay its costs on an indemnity basis of the issue which was central to the council's defence, namely whether the house and garden had heritage value. 3 Section 69(2) of the Land and Environment Court Act 1979 ("the Court Act") relevantly provides:- (2) Subject to the rules and subject to any other Act: (a) costs are in the discretion of the Court, (b) the Court may determine by whom and to what extent costs are to be paid, and (c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis. 4 Part 16 rule 4 of the Land and Environment Court Rules 1996 ("the rules") applicable to class 1 proceedings relevantly provides:-