Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council [2013] NSWLEC 86

Land and Environment Court New South Wales

Medium Neutral Citation: Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council [2013] NSWLEC 86 Hearing dates: 5 June 2013 Decision date: 06 June 2013 Jurisdiction: Class 3 Before: Preston CJ Decision: 1.The respondent is to pay the applicant's costs of the proceedings. 2.The respondent is to pay the applicant's costs of the application for costs. Catchwords: COSTS - appeals against categorisations of rateable lands by Council - appeals settled by consent orders of the Court - applicant subsequently applies for a costs order - no order for costs unless fair and reasonable in the circumstances - whether Council's conduct before and/or during proceedings was unreasonable - whether an order for costs should be made on an indemnity basis - decisions made by Council in categorising lands as mining, declining to change category and defending appeals were sufficiently unreasonable and affected by legal error - Council erred in law by incorrectly construing the relevant statutory provision for categorisation of rateable land as mining - mere noise affectation of parcels of rateable land by mine is insufficient to constitute use for a mine - change of ownership of noise affected land does not by itself change use of land - purpose of acquisition of land does not by itself cause a change in use of land acquired - mere holding of land for a mining purpose not a use for a mine - Council had sufficient information on the use of the parcels for residential or farming at the time it made its decisions to re-categorise rateable lands as mining, decline to change these categories and defend the appeals - Council's conduct sufficiently unreasonable as to found a costs order on a party/party but not indemnity basis - Council ordered to pay the applicant's costs of the appeal proceedings and to pay the applicant's costs of the application for costs Legislation Cited: Local Government Act 1919 s 132(1)(d) Local Government Act 1993 ss 515, 516, 517, 518, 520, 525, 526 Land and Environment Court Rules 2007 r 3.7 Cases Cited: Broadwater Action Group Inc v Richmond Valley Council (No 2) [2003] NSWLEC 289; (2003) 129 LGERA 401 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 F & D Bonaccorso Pty Ltd v Canada Bay City Council (No 3) [2007] NSWLEC 569 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301 Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867; (2010) 79 NSWLR 724 Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Shellharbour City Council v Stewart [2007] NSWLEC 727 Shire of Perth v O'Keefe (1964) 110 CLR 529 Ulan Coal Mines Ltd v Mudgee Shire Council (unreported, 11 January 1988) Category: Costs Parties: Peabody Pastoral Holdings Pty Limited (Applicant) Mid-Western Regional Council (Respondent) Representation: Mr N J Williams SC with Mr C R Ireland (Applicant) Ms S A Duggan SC with Mr M D Seymour (Respondent) McCullough Robertson (Applicant) Crennan Legal (Respondent) File Number(s): 31293-31295 of 2012 Publication restriction: No