Fuller v Bellingen Shire Council & Anor [1988] NSWLEC 126

Land and Environment Court of New South Wales

CITATION : Fuller v Bellingen Shire Council & Anor [1988] NSWLEC 126 APPLICANT L.C. Fuller

FIRST RESPONDENT PARTIES : Bellingen Shire Council

SECOND RESPONDENT Commercial Radio Coffs Harbour Limited

FILE NUMBER(S) : 40171 of 1985 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Arnold v. The State of Queensland & Anor, Wilcox J (1987); CASES CITED: Alan Campbell v. Minister for Environment & Planning and Ors,(1988); Commercial Radio Coffs Harbour Limited v. Fuller (1986) DATES OF HEARING: DATE OF JUDGMENT: 07/13/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: On 16th June, 1988 an application for declarations and orders concerning the lawfulness of a development consent granted by the first respondent was dismissed, and I refer to my reasons for judgment. Both respondents seek orders for costs of the proceedings.

It is well established that in proceedings in Class 4 of the jurisdiction of the Land and Environment Court the general rule is that the successful party is entitled to an order for costs. Any party seeking a departure therefrom must establish the existence of special circumstances. The applicant submits that the Court is vested with a wide discretion and in this case costs should not necessarily follow the event because, it is said, the proceedings were brought by a "public interest group"; cf. Arnold v. The State of Queensland & Anor, Wilcox J. in Federal Supreme Court, 13th May 1987 (unreported).

The reasons for judgment in that matter were recently considered in this Court by Cripps C.J. in Alan Campbell v. Minister for Environment & Planning and Ors, 24th June 1988 (unreported). He noted the significantly different evidentiary basis from Arnold's case to establish that the applicant represented part of the public interest. In Campbell's case he was unaware of the actual membership, objects, purpose or constitution of the unincorporated body which the applicant represented. Similarly, in this case I know little more than that Lynette Fuller was a member of an unincorporated body known as the "Save Our Scenery Committee", which was active in the locality in opposition to the approval and use of the subject development. I also see little to distinguish the applicant as a member of that body from the usual applicants in proceedings of this nature in Class 4. I respectfully agree with and adopt the reasoning of Cripps C.J. in so far as it applies to the facts of this matter, and would not refuse an order for costs on this ground alone.