In the recent case of Statewide Planning Pty Ltd v Penrith City Council (No. 3) [2018] NSWLEC 109 (Statewide Planning), the Land and Environment Court (LEC) heard the Council’s Notice of Motion (NOM) for costs against the developer who had amended plans annexed to the Class 1 Appeal 11 times in the course of a Class 1 development appeal proceeding that lasted almost two years. The judge presiding the hearing for the NOM, Justice Sheahan, found: –
- the conduct of the developer had gone beyond ‘the usual argy bargy’ between a party in Class 1 Appeal proceedings;
- the developer should pay the Council’s legal costs in respect of the whole proceedings, in addition to any costs thrown away by reason of making those amendments; and
- the Council was permitted to bring the NOM even though it was filed outside of the deadline permitted by the LEC’s Practice Note – Class 1 Development Appeals.
Background
In Statewide Planning, the developer commenced the Class 1 appeal on 21 September 2015 after its development application was deemed refused by Council. Due to multiple and serious deficiencies with the development application, the developer amended the application 11 times before the hearing, which led to a domino effect of delayed expert’s reports and adjournments of proceedings. Worse, the developer had failed to seek leave from the Court before amending the application on multiple occasions. [...]
