Port Stephens Council v Jeffrey Sansom

(2007) 156 LGERA 125; [2007] NSWCA 299

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Courts and tribunals with environment jurisdiction
3. › New South Wales
4. › Land and Environment Court
5. › Costs
6. › Discretionary nature of award of costs
7. › Whether 'fair and reasonable' test under Pt 16 r 4(2) permits presumptive weight to character of proceedings
8. › Whether non-discouragement principle is impermissible fetter on discretion
9. › Land and Environment Court Rules Pt 16 r 4
1. Environment and Planning
2. › Courts and tribunals with environment jurisdiction
3. › New South Wales
4. › Land and Environment Court
5. › Costs
6. › Approach to interpreting 'fair and reasonable'
7. › Role of principles or guidelines in exercise of judicial discretion
8. › Appropriate weight to be accorded to nature of proceedings
9. › Relevance of analogies with merits review or adversarial litigation
10. › Land and Environment Court Rules Pt 16 r 4
11. › Land and Environment Court Act 1979 (NSW) ss 38, 39(2), 57(1), 69
1. Practice and Procedure
2. › Costs
3. › Discretionary costs orders
4. › Statutory discretion expressed as 'fair and reasonable'
5. › Whether evaluative judgment reviewable under Warren v Coombes or House v The King standard
6. › Status of prior case law under superseded test
1. Appeal
2. › Standard of appellate review
3. › Appeal on question of law from costs decision
4. › Whether failure to accord sufficient weight to relevant consideration constitutes error of law
5. › Land and Environment Court Act 1979 (NSW) s 57(1)

Quick Take

The 'fair and reasonable' test under Pt 16 r 4(2) of the Land and Environment Court Rules requires a broad evaluative judgment that cannot be fettered by the non-discouragement principle (beyond the basic rule itself) or by giving presumptive weight to the characterisation of proceedings as raising a capacity/permissibility issue. Neither analogies with merits review nor with adversarial litigation should be the focus. Guidelines may be formulated to promote consistency but cannot be treated as rules or given presumptive weight. Under the EPA Act, an unsuccessful consent authority is more likely to suffer an adverse costs order than an unsuccessful applicant.