Gales Holdings Pty Limited v Tweed Shire Council [2003] NSWLEC 194

> Land and Environment Court of New South Wales

CITATION : Gales Holdings Pty Limited v Tweed Shire Council [2003] NSWLEC 194 APPLICANT Gales Holdings Pty Limited PARTIES : RESPONDENT Tweed Shire Council FILE NUMBER(S) : 10213 of 2003 CORAM: Talbot J KEY ISSUES: Costs :- each party successful - each party pay their own costs LEGISLATION CITED: CASES CITED: DATES OF HEARING: 14/08/2003 DATE OF JUDGMENT: 08/29/2003

APPLICANT Mr T F Robertson SC SOLICITORS Woolf Associates LEGAL REPRESENTATIVES: RESPONDENT Mr J J Webster SC SOLICITORS Stacks the Law Firm

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10213 of 2003

Talbot J

29 August 2003 Gales Holdings Pty Limited Applicant v Tweed Shire Council Respondent Judgment

Introduction 1 By notice of motion dated 31 July 2003 the applicant moved the Court for an order that the hearing date of 19 August 2003 and hearing dates of 24 September 2003 to 30 September 2003 be vacated. The separate hearing dates were allocated to enable a preliminary question to be determined prior to the commencement of the hearing on the merits, as a consequence of the hearing of an earlier notice of motion on 6 June 2003 when the Chief Judge decided, despite the recent interest of the Commonwealth in the matter, it should proceed to a hearing. However, Her Honour decided that a preliminary point of law as to whether a Species Impact Statement ("SIS") was required would be heard separately on 19 August 2003. There has been a flurry of activity since that date. 2 The solicitor for Tweed Shire Council ("the council") has informed the Court in an affidavit that the council was ready to proceed with the hearing on 19 August 2003 and when the notice of motion before the Court was received it was preparing to serve an affidavit in support of its contention. It was also in the process of preparing further evidence for the hearing set down for the week commencing 24 September 2003. 3 In an affidavit sworn by its solicitor, the applicant notes that developments in relation to amendments to a development control plan, the preparation and exhibition of a draft local environmental plan, issues regarding the location of the Wallum Sedge frog in the locality of the subject site and a recent resolution of the council to undertake a major retail study have all impacted upon the capacity of the applicant being in a position to prepare for the hearing. 4 After hearing argument, the Court determined that the achievement of any practical outcome on 19 August 2003 was unlikely in the circumstances. Furthermore, it became apparent that the arguments in relation to the requirement for a SIS would take longer than one day. The Court therefore vacated 19 August 2003 and set the preliminary question down for hearing on the September dates. 5 The question of costs of the notice of motion dated 31 July 2003 and costs thrown away on 19 August 2003 were reserved. 6 I do not have the benefit of understanding what was put to the Chief Judge when she set the preliminary question down for hearing for one day. Nevertheless, it is now apparent that there was never any real prospect that the evidentiary issues, as well as argument, could have been dealt with in that time. It is only the costs of 19 August 2003 that are in question, together with the costs of the notice of motion. No issue has been raised regarding any other costs in relation to the hearing in September. 7 Having regard to the whole of the circumstances, including the fact that both parties have been successful on the notice of motion, namely that the applicant has been successful in persuading the Court to vacate the hearing on 19 August 2003 whereas the respondent has been successful in persuading the Court to retain the September dates and the fact that the matter should never have been set down for a one day hearing on the preliminary question in the first place, it is appropriate that each party pay their own costs in relation to the notice of motion dated 31 July 2003 and the costs thrown away by vacation of the hearing date on 19 August 2003. 8 The Court makes the following formal order:-