The Council of the Shire of Muswellbrook v G R and A E Collins [1989] NSWLEC 235

Land and Environment Court of New South Wales

CITATION : The Council of the Shire of Muswellbrook v G R and A E Collins [1989] NSWLEC 235 APPLICANT The Council of the Shire of Muswellbrook PARTIES : RESPONDENT G R and A E Collins FILE NUMBER(S) : 40262 of 1989 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 08/30/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 23rd November, 1988 the Applicant commenced Class 4 proceedings claiming a number of declarations in respect of the use being made by the Respondents of certain land situate in Muswellbrook and an injunction restraining the use of the land for the purpose of "a trucking depot and/or employees' car park".

The matter was mentioned on a number of occasions at the Registrar's call-over and usual directions for filing of affidavits were given. At the call-over held on 23rd June, 1989 (after affidavits had been filed), the Applicant indicated that the matter was likely to be settled. Finally at the call-over on 18th August, 1989 the Applicant announced its intention to withdraw its application. However the question of costs was in issue.

On the hearing of the matter today, I formally disposed of the proceedings by ordering, by consent, that the application be dismissed.

In consequence of that order each party sought an order for costs. As I understood the Applicant's claim, it is founded on the proposition that the Respondents brought the proceedings on themselves in as much as had they provided evidence to the Applicant of their existing use entitlement at the time the Applicant sought such evidence the proceedings would not have been commenced. The proceedings, would, so the argument went, have been unnecessary. Since however the Applicant was not satisfied of the Respondent's existing-use entitlements it was submitted that the Applicant had no choice but to commence the proceedings, particularly in the light of neighbour complaint against the Respondents' activity.