MacDonald v Mosman Municipal Council

CITATION : MacDonald v Mosman Municipal Council [2000] NSWLEC 67 APPLICANT: PARTIES : Roderick MacDonald RESPONDENT: Mosman Municipal Council FILE NUMBER(S) : 10166 of 1999 CORAM: Lloyd J KEY ISSUES: Costs :- planning and building appeal - conduct of both parties amounting to exceptional circumstances - applicant's conduct cancels out entitlement to costs - costs of motion for costs Conveyancing Act 1919, s88B LEGISLATION CITED: Environmental Planning & Assessment Act 1979, s79C(1)(e) Land and Environment Court Act 1979, s39(4), s69 Latoudis v Casey (1990) 170 CLR 934; MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; CASES CITED: Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365; Pancho Properties Pty Ltd v Wingecarribee Shire Council I (No 2) [1999] NSWLEC 277; Pavements and Excavations Pty Ltd v Tones, NSWCA, 28 March 1991, unreported DATES OF HEARING: 24/02/00 DATE OF JUDGMENT: 04/11/2000

2. The Court has issued a long standing practice direction as follows: The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional. The reason for the practice has been stated many times. For example, in Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365, Pearlman J said (at 369) that "t he practice direction was made to encourage dissatisfied parties to seek review of planning and building decisions by councils without risk of costs if unsuccessful ". More recently in Pancho Properties Pty Ltd v Wingecarribee Shire Council (No 2) [1999] NSWLEC 277, Talbot J said (at paragraph [10]): 10. The underlying objective of the Court's Practice Direction that no costs orders will be made in merit appeals other than in exceptional circumstances is to allow dissatisfied applicants, and councils, to pursue an appeal to this Court without the prospect of being submitted to a costs order wherever the party has acted in good faith and not in a frivolous, vexatious or oppressive manner based on an improper motive.

(1990) 170 CLR 934

(1999) 105 LGERA 49

(1996) 89 LGERA 365