Funtime Investments Pty Limited v Yass Valley Council [2004] NSWLEC 322

Land and Environment Court of New South Wales

CITATION : Funtime Investments Pty Limited v Yass Valley Council [2004] NSWLEC 322 revised - 25/06/2004 PARTIES : Funtime Investments Pty Limited (A) Yass Valley Council (R) FILE NUMBER(S) : 10870 of 2003 CORAM: McClellan CJ Costs :- Concurrence of Chief Judge with Commissioner's decision KEY ISSUES: Court mechanisms intended to facilitate efficient disposition of planning appeals Fair and reasonable costs to compensate adversely affected party LEGISLATION CITED: CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 10/22/2004

B Bilinsky (Solicitor - A) B Bilinsky & Co (A)

LEGAL REPRESENTATIVES: A Bradbury (Solicitor - R) Minter Ellison (R)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

WEDNESDAY, 16 JUNE 2004

10870/03 FUNTINE INVESTMENTS PTY LIMITED v YASS VALLEY COUNCIL

JUDGMENT 1 HIS HONOUR: Commissioner Moore has determined an appeal in this matter. His decision was given ex tempore on 25 May 2004 following which the applicant made an application for an order for costs. Commissioner Moore heard submissions in relation to that application and reserved his decision. 2 On 16 June 2004 Commissioner Moore delivered his decision on the matter of costs which was, subject to my concurrence as Chief Judge, that he would order the respondent to pay the applicant's costs of the hearings on 26 March and 22 April 2004. The parties indicated to the Commissioner that they did not wish to make any further submissions with respect to whether I should concur in the Commissioner's decision. 3 I have reviewed the reasons of Commissioner Moore for his decision. In those reasons he has set out the facts and circumstances relevant to the conclusion which he has reached. Essential to his decision is a finding that the council failed to appropriately discharge its responsibilities with respect to notification of relevant matters to affected persons. In this respect, the failure to comply with the relevant practice direction was compounded by a failure to notify the applicant and the Court that the matter would not be able to proceed on 26 March 2004. 4 With respect to the mention on 20 April, I understand the Commissioner to have concluded that on that day, although the council was aware that objections had been received, it had not prepared material which would enable the Commissioner to understand the objections and determine whether or not they were such that the application should be refused. The Commissioner has come to the conclusion that in the circumstances, an onus fell upon the council, which was otherwise submitting that the application should be approved, to provide evidence which would enable the Commissioner to understand the objection and reach an appropriate conclusion. 5 I am satisfied that I should concur in the Commissioner's proposed orders. The Court has provided through practice directions and the procedures which are otherwise adopted, mechanisms which are intended to facilitate the efficient disposition of planning appeals. Unless the parties comply with the practice directions and meet their obligations in relation to the procedures of the Court, the objective of efficient and effective disposition of appeals cannot be met. To ensure that the Court has available appropriate sanctions in the event that a party fails to meet reasonable expectations in relation to its conduct in an appeal, the rule relating to costs, being Pt 16, r 4(2), was recently amended. A failure by one party to meet its obligations in relation to the proceedings, which causes unnecessary costs to be incurred by another party will, in the ordinary course, justify a conclusion that it would be fair and reasonable to make an order for costs to compensate the party which has been adversely affected. 6 I concur in the proposed orders of Commissioner Moore. **********