Cohen & Anor. v. Wyong Shire Council [2005] NSWCA 46

New South Wales Court of Appeal

CITATION: Cohen & Anor. v. Wyong Shire Council [2005] NSWCA 46

HEARING DATE(S): 9 February 2005

JUDGMENT DATE: 8 March 2005

JUDGMENT OF: Handley JA at 1; Hodgson JA at 2; Santow JA at 47

DECISION: 1. Appeal allowed to the extent of substituting for the costs made by the primary judge an order that the appellants pay one-half the Council's costs of the proceedings, and otherwise dismissed. 2. Each side to bear its own costs of the appeal.

CATCHWORDS: LOCAL GOVERNMENT - Town planning - Building control - Demountable office and shipping container placed on land - Whether temporary structures - Whether there was erection of buildings - Whether structures were for prohibited use - Order made for their removal and for costs in favour of the Council - Conflict in evidence concerning alleged refusal by Council to receive development application - Defendant discouraged from cross-examining Council witness - Whether denial of procedural fairness - Whether order for costs should be reviewed.

Bertram v. Warringah Shire Council (1990) 72 LGRA 39 Doyle v. Newcastle City Council (1990) 71 LGRA 55 Gee v. Port Stephens Council [2003] NSWLEC 260 House v. The King (1936) 55 CLR 499 CASES CITED: Parker v. DPP (1992) 28 NSWLR 282 Quarries Ltd. v. Federal Commissioner of Taxation (1961) 106 CLR 310 Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335 Willis v Ku-Ring-Gai Municipal Council (1992) 75 LGRA 308

Phillip Lawrence Cohen - 1st appellant PARTIES: Jennifer Anne Cohen - 2nd appellant Wyong Shire Council - respondent

FILE NUMBER(S): CA 40146/04