Tunwish Pty Ltd v Port Stephens Council [2009] NSWLEC 1213

Land and Environment Court of New South Wales

CITATION : Tunwish Pty Ltd v Port Stephens Council [2009] NSWLEC 1213

APPLICANT Tunwish Pty Ltd PARTIES : RESPONDENT Port Stephens Council

FILE NUMBER(S) : 10753 of 2008

CORAM: Acting Registrar Gray

KEY ISSUES: COSTS :- Amended Application

Civil Procedure Act 2005 LEGISLATION CITED: Uniform Civil Procedure Rules 2005 Land and Environment Court Rules 2007

DATES OF HEARING: 23 February 2009

DATE OF JUDGMENT: 26 February 2009

APPLICANT Mr CR Ireland SOLICITORS LEGAL REPRESENTATIVES: O'Sullivan Saddington RESPONDENT Mr P W Larkin SOLICITORS Harris Wheeler

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ACTING REGISTRAR GRAY

THURSDAY 26 FEBRUARY 2009

08/10753 Tunwish Pty Ltd v Port Stephens Council

JUDGMENT

1 ACTING REGISTRAR: This is an application made by the respondent for costs. The respondent asks firstly for its costs thrown away as a result of an Amended Application being filed by the applicant, and secondly for its costs of the Notice of Motion filed by the respondent seeking leave to file the Amended Application.

2 The substantive proceedings arise from the decision of council granting development consent for the use of the subject property, a hotel premises, as a place of public entertainment subject to conditions. Specifically, the applicant seeks to appeal against the decision of the council to impose condition 4, which condition restricts the opening hours for the place of public entertainment. The applicant says that the hotel currently operates in longer opening hours than those allowed for in condition 4, and that therefore they should not be restricted to using the property as a place of public entertainment in hours more limited than those for which the hotel itself is open. In its Amended Statement of Facts and Contentions filed 19 November 2008, the applicant relies on development consents granted by the council in 1980 and 1988. The applicant asserts that these consents do not impose a restriction on the hotel trading hours.