Boensch v Parramatta City Council (No 3) [2014] NSWLEC 15

Land and Environment Court New South Wales

Medium Neutral Citation: Boensch v Parramatta City Council (No 3) [2014] NSWLEC 15 Hearing dates: 13, 18 February 2014 Decision date: 27 February 2014 Jurisdiction: Class 1 Before: Craig J Decision: (1) Order that the respondent pay the applicant's costs of his notice of motion dated 7 June 2013, including those costs incurred in addressing the separate question ordered to be determined by Biscoe J on 26 June 2013. (2) No order as to costs of the hearing of the present application. (3) Exhibits A and B may be returned. Catchwords: COSTS - Class 1 proceedings - motion for determination of separate issue - whether development consent had lapsed by operation of s 95 of the Environmental Planning and Assessment Act 1979 - issue ultimately withdrawn - whether fair and reasonable to order costs of and incidental to the motion - Pt 3, r 3.7 of the Land and Environment Court Rules 2007 - whether Council had a reasonable basis to raise the issue identified for separate determination - Schedule B of Practice Note for Class 1 Development Appeals - just, quick and cheap resolution of the real issues - s 56 of the Civil Procedure Act 2005 - need for care to be taken when framing new ground - primary focus must be upon the justification for raising the issue in the first place Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Civil Procedure Act 2005 (NSW) Land and Environment Court Act 1979 (NSW) Land and Environment Court Rules 2007 (NSW) Local Government Act 1919 (NSW) Sydney Water Act 1994 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Water Board Act 1987 (NSW) Cases Cited: Boensch v Parramatta City Council [2013] NSWLEC 94 Boensch v Parramatta City Council (No 2) [2013] NSWLEC 1262 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169; 63 NSWLR 124 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202 Re Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997)186 CLR 622 Category: Costs Parties: Franz Boensch (Applicant) Parramatta City Council (Respondent) Representation: A Kumar (13 February 2014) and A Pickles (18 February 2014) (Applicant) S Nash (Respondent) Susan Hill & Associates Lawyers Pty Ltd (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 10557 of 2012, 10558 of 2012