What has happened?

On 13 November 2017, the NSW Land and Environment Court decided an appeal from a decision made by a Commissioner in Class 1 proceedings: David Casson t/as Casson Planning & Development Services v Upper Hunter Shire Council (No 2) [2017] NSWLEC 149. 

In those proceedings, the Commissioner had refused to grant consent for a Development Application (DA) in relation  to a proposed subdivision.

The Court:

1. upheld the appeal; but
2. nevertheless refused to grant consent for the DA.

This circumstance arose largely because of the way in which the matter had been argued by the Applicant in the first instance proceedings.

There were 2 potentially applicable statutory pathways which would enable the development to be approved ("Pathway A" and "Pathway B"). At first instance, the Applicant argued that it was "Pathway A" that made the development permissible.

On appeal, the Applicant changed position and argued that the Commissioner erred by assessing the development against "Pathway A" and should instead have assessed that development against "Pathway B".

The Court upheld this ground of appeal ruling that Pathway A was not applicable to the development. In so doing, however, the Court also held that the development was not permissible under Pathway B.

The Court noted that, although the Applicant had been successful in having its appeal upheld, it had not achieved any practical or functional success.

The Court considered how the usual rule, that "costs follow the event", should be applied in these circumstances.  

Findings by the Court

The appeal had been brought pursuant to Section 56A of the Land and Environment Court Act 1979. The usual rule in such appeals is that "costs follow the event".

In identifying the relevant "event" for the purposes of applying the usual rule, the Court had regard to the observation by the NSW Court of Appeal in Sze Tu v Lowe (No 2) [2015] NSWCA 91 that (emphasis added):

"How 'the event' should be defined will depend upon the nature of the litigation. Generally the 'event' refers to the event of the claim and may be understood as referring to the practical result of a particular claim."

In this case, the Court ruled that:

"... although the appeal has been upheld, 'the event' for the purposes of consideration as to where the liability for costs should fall is determined by the practical, functional outcome of the proceedings. As this is that the Appellants fail and the proposed subdivision is to be refused development consent, it follows that the Appellants must pay the Council's costs of this appeal."

Implications

This case reinforces the point that, when it comes to costs, the practical outcome of an appeal will often carry greater weight than the technical, legal outcome.  This is a point that needs to be considered when deciding whether to commence an appeal under Section 56A.

Further information

For further information on this judgment and its potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@steelelaw.com.au.