Walker v Kempsey Shire Council [2003] NSWLEC 56

> Land and Environment Court of New South Wales

CITATION : Walker v Kempsey Shire Council [2003] NSWLEC 56 APPLICANT: Walker PARTIES : RESPONDENT: Kempsey Shire Council FILE NUMBER(S) : 10721 of 1999 CORAM: Bignold J KEY ISSUES: Costs :- class 1 proceedings dismissed for want of prosecution LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22/02/2002 EX TEMPORE JUDGMENT DATE : 02/22/2002

APPLICANT: Mr J C Boswell (Agent) SOLICITORS N/A

LEGAL REPRESENTATIVES: RESPONDENT: Mr G E Underwood, Barrister SOLICITORS Howard Sheridan Cooney Harvey

JUDGMENT:

IN THE LAND AND Matter No. 10721 of 1999 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 22 February 2002

E WALKER

Applicant

v

KEMPSEY SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J: A. INTRODUCTION

1. Earlier today I dealt with an application by the Council for an order for costs against the Applicant in these class 1 proceedings which were concluded in circumstances that I had earlier outlined on 12 September 2001 when Commissioner Brown ordered that the appeal be dismissed for non-prosecution and that the development application to extract sand from a property in the Kempsey Shire be refused.

2. My adjudication on the Council's application for costs was that in the circumstances of this case, the Court should not depart from its usual practice or policy of not awarding costs in planning appeals.

3. The Council had put its case on the basis that special circumstances had existed, especially in relation to the conduct of the case by the Applicant on 11 and 12 September 2001. I will not repeat what I said there. Ultimately, I concluded that no special circumstances had been established and that in the circumstances of a rather protracted, complex and unsatisfactory piece of litigation, its even untimely conclusion did not justify any order for costs.