Background
Lane Cove Municipal Council succeeded in substantive Class 4 civil enforcement proceedings concerning a wall reconstructed by Robert and Katie Wechsler above a specified red line. In Lane Cove Municipal Council v Wechsler [2026] NSWLEC 70, the Court found that the wall required development consent and that consent had not been obtained.
The Council then sought its costs. The Wechslers argued that costs should be limited to 50 percent because the Council had not pressed some issues, including a foreshore argument and an alleged breach of a second development consent order. They also contended that the relevant consents and modification were ambiguous, that Council conduct had contributed to the dispute, and that an intended appeal made a costs order premature.
Separately, the Wechslers sought a stay of the substantive orders pending appeal. The Court heard that motion with the costs application.
The Court’s Holding
Duggan J ordered the Wechslers to pay the Council’s costs of the substantive proceedings, including the costs hearing. Under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), costs ordinarily follow the event, and the Council had wholly succeeded in obtaining the relief it sought. The respondents had not shown circumstances justifying a departure from that usual result.
The Court rejected the claimed ambiguity and delay as bases to deny or reduce costs. By the time the wall was rebuilt, any confusion about the Council’s position had been resolved; the respondents nevertheless reconstructed the relevant part of the wall. The Council’s unpressed issues were alternative, non-discrete paths within its central consent argument and did not undermine its overall success. The Court also ordered the respondents to pay the Council’s costs of their stay motion, which had been brought prematurely because they had only filed a notice of intention to appeal and provided no evidence of settled appeal grounds.
Key Takeaways
- A wholly successful party will ordinarily receive costs in NSW Land and Environment Court Class 4 proceedings.
- Abandoning or not pressing subsidiary, alternative issues does not necessarily justify reducing the successful party’s costs.
- A proposed appeal does not by itself make a costs determination premature or justify a stay.
Why It Matters
The decision confirms that parties resisting planning enforcement may face the ordinary costs consequence where they continue conduct after the consent authority’s and Court’s position has been made clear. It also illustrates the need for concrete evidence of an intended appeal before seeking a stay of enforcement orders.