Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130

Land and Environment Court New South Wales

Medium Neutral Citation: Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130 Hearing dates: 29 July 2011 Decision date: 29 July 2011 Jurisdiction: Class 4 Before: Pain J Decision: The Court orders the First Defendant to pay the Council's costs of these proceedings. This order is not to be enforced for a period of 12 months from the date of this order. Catchwords: COSTS - whether to exercise discretion to award costs Legislation Cited: Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules Pt 42 r 42.1 State Environmental Planning Policy No 14 - Coastal Wetlands Cases Cited: Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178; (2010) 176 LGERA 97 Kempsey Shire Council v Thrush [2011] NSWLEC 93 Michales v Dimoski (No 2) [2007] NSWLEC 591 Category: Costs Parties: Kempsey Shire Council (Applicant) Peter Michael Walter Thrush (First Defendant) Vincent Gullotto (Second Defendant) Representation: Mr G Underwood (Applicant) Mr P Thrush (First Defendant - in person) Mr V Gullotto (Second Defendant - in person) Cooney Harvey Doney (Applicant) File Number(s): 40711 of 2010

EX TEMPORE Judgment 1In Kempsey Shire Council v Thrush [2011] NSWLEC 93 ( Thrush No 1 ) I found that work had been carried out by, the First Defendant, Mr Thrush in July 2009 on a right of carriage way over land owned by, the Second Defendant, Mr Gullotto which was in a designated State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) wetland area without the development consent required under the Environmental Planning and Assessment Act 1979 (the EPA Act). For a number of reasons concerning the particular circumstances of Mr Thrush set out in the judgment at [49] - [54] I exercised my discretion not to make a declaration or the orders for relief sought by the Applicant, Kempsey Shire Council (the Council). The Council now seeks its legal costs, as does each of the Defendants. The Defendants have represented themselves before me but informed me that legal costs were incurred earlier in the proceedings when solicitors were then briefed. A chronology of events from early 2008 up to November 2010 is contained in par 5 of Thrush No 1 . These proceedings were commenced on 13 September 2010. A mediation of the parties was held on 21 October 2010 but the matter was not ultimately resolved.