Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 Hearing dates: 31 March 2015 Date of orders: 01 April 2015 Decision date: 01 April 2015 Jurisdiction: Class 1 Before: Preston CJ Decision: (1) Dismiss the appeal.

(2) Order the applicant to pay the respondent's costs of the appeal. Catchwords: APPEAL – appeal against Commissioner's decision on a question of law – granting of modification to development consent to extend hours of operation and amend a plan of management for a hotel – whether Commissioner failed to take into account development control plan – whether Commissioner misdirected herself and asked herself the wrong question – whether Commissioner adopted and applied policy other than policy in development control plan – Commissioner's reasons for decision must be read as a whole and considered fairly – Commissioner correctly identified applicable provisions of development control plan – Commissioner did not err on question of law in construction and application of development control plan

COSTS – Court not to make order for costs in Class 1 appeal unless fair and reasonable in the circumstances – whether order for costs fair and reasonable in the circumstances – Court to consider all circumstances – appeal limited to questions of law – no examination of evidence or conduct of parties in proceedings below – no circumstances that point against making order for costs – no disentitling conduct by successful party – fair and reasonable that unsuccessful party be ordered to pay costs of successful party Legislation Cited: Environmental Planning and Assessment Act 1979 ss 79C(1), 97AA Land and Environment Court Act 1979 s 56A(1) Liquor Act 2007 s 102 Land Environment Court Rules 2007 r 3.7 Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Hemmes Trading Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1124 Mike George Planning Pty Ltd v Willoughby Municipal Council (No 4) [2014] NSWLEC 187 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Tricon Services Group Pty Ltd v Manly Council (No 2) [2011] NSWLEC 253 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 Category: Principal judgment Parties: Council of the City of Sydney (Applicant) Base Backpackers Pty Ltd (Respondent) Representation: Counsel: Mr P R Clay SC (Applicant) Ms S A Duggan SC with Mr M D Seymour (Respondent)