Fast Buck$ & 1 Ors v Dudley Pastoral Co P/L & 1 Ors; Byron Shire Council v Fast Buck$ & 1 Ors [2003] NSWCA 126

New South Wales Court of Appeal

CITATION : Fast Buck$ & 1 Ors v Dudley Pastoral Co P/L & 1 Ors; Byron Shire Council v Fast Buck$ & 1 Ors [2003] NSWCA 126 HEARING DATE(S) : 28/02/2003 JUDGMENT DATE : 21 May 2003

JUDGMENT OF : Meagher JA at 1; Giles JA at 3; Santow JA at 34 DECISION : In proceedings 40731/01--; 1. Appeal dismissed; 2. Appellants pay respondents' costs; In proceedings 40630/02--; 1. Extend the time for applying for leave to appeal up to and including 19 July 2002; 2. Grant leave to appeal and direct the filing of the notice of appeal within 7 days; 3. Appeal allowed; 4. Set aside the order that no order for costs be made in favour of the second respondent, and in lieu thereof order that the applicants pay the costs of the second respondent; 5. Opponents/respondents pay claimant/appellant's costs.

CATCHWORDS : PRACTICE AND PROCEDURE - fundamental difficulty with notice of appeal - no jurisdictional basis for relief sought - PRACTICE AND PROCEDURE - fundamental difficulty with pleadings - relevant party not joined to proceedings - where even if relief could and should be given unable to do so because the relevant party not joined - ENVIRONMENTAL AND PLANNING LAW - whether requirement that the person making a report on site contamination be independent - whether any requirement in the Environmental Planning and Assessment Act or Regulations - whether any requirement in ANZECC or EPA guidelines - whether any requirement in condition attached to development consent - COSTS - where claimant wholly successful at first instance - whether conduct at relevant time disentitled the successful claimant to an order for costs in the case at first instance - whether claimant's actions amounted to disentitling conduct Environmental Planning and Assessment Act 1979 s4; s80; s90; s91; s123, s124 LEGISLATION CITED : EPA regulation 229 Supreme Court Act s101(2)(c) Aitchison v Leichhardt Municipal Council [2002] NSWLEC 226 CASES CITED : Hamill v Byron Shire Council and Dudley Pastoral Co Pty Limited (LEC No. 40249/97, Bignold J, 31 March 1998, unreported) House v the King (1936) 55 CLR 499 Oshlack v Richmond River Council [1998] 193 CLR 72 CA 40431/01: Fast Buck$ and Terry Hamill (Appellants) Dudley Pastoral Co Pty Limited (First Respondent) PARTIES : Byron Shire Council (Second Respondents)