Anderson v Lake Macquarie City Council [2013] NSWLEC 96

Land and Environment Court New South Wales

Medium Neutral Citation: Anderson v Lake Macquarie City Council [2013] NSWLEC 96 Hearing dates: 13 June 2013 Decision date: 13 June 2013 Jurisdiction: Class 2 Before: Preston CJ Decision: (1) The applicant's notice of motion for costs dated 26 March 2013 is dismissed. (2) The applicant is to pay the respondent's costs in relation to the applicant's notice of motion for costs dated 26 March 2013. Catchwords: COSTS - Council issued order to applicant requiring demolition and removal of a concrete seawall constructed on Crown land adjoining his land - applicant appeals to the Court - Council failed to comply with a precondition to the exercise of power to make an order requiring demolition and removal of the seawall - appeal upheld by Commissioner and Council's order revoked - applicant seeks an order that the Council pay his costs of the appeal - no order as to costs unless fair and reasonable in circumstances - whether Council acted unreasonably in circumstances leading up to the appeal - whether Council maintained a defence to the appeal where it did not have reasonable prospects of success and where to do so was unreasonable - whether Council's conduct rendered it fair and reasonable to make a costs order - the applicant succeeded only on one of the many grounds of challenge in the appeal - the applicant did not raise the ground of challenge that would have been determinative of the proceedings as a separate or preliminary question - the reasons for the Council's conduct in not complying with the precondition to the exercise of power to make an order were not so unreasonable as to found an order for costs - notice of motion for costs dismissed - applicant to pay respondent's costs on the notice of motion for costs Legislation Cited: Crown Lands Act 1989 Pt 5 Interpretation Act 1987 s 34(1)(b), 35(2)(a) Land and Environment Court Act 1979 s 39(2) Local Government Act 1993 ss 124, 126, 132, 153, 180 Land and Environment Court Rules 2007 r 3.7 Uniform Civil Procedure Rules 2005 r 28.2 Cases Cited: Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2007) 149 LGERA 360 Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 Category: Principal judgment Parties: Mr Peter Anderson (Applicant) Lake Macquarie City Council (Respondent) Representation: Mr T G Howard (Barrister) (Applicant) Mr T F Robertson SC with Mr G W Long (Solicitor) (Respondent) Mallik Rees (Applicant) Lake Macquarie City Council, Corporate Legal Office (Respondent) File Number(s): 21012 of 2012 Publication restriction: No