Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17

Land and Environment Court New South Wales

Medium Neutral Citation: Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17 Hearing dates: 6 and 7 December 2022 Date of orders: 16 March 2023 Decision date: 16 March 2023 Jurisdiction: Class 4 Before: Moore J Decision: Development consent held to be invalid on two bases (see [130] and [131]). Directions to be made for further hearing on discretion and costs. Catchwords: JUDICIAL REVIEW ‑ Ground 1 ‑ Council grants development consent for proposed motel ‑ development consent incorporates approval under the Local Government Act 1993 (the Local Government Act) to install multi‑room accommodation modular units transported to the site to provide accommodation for the motel ‑ whether modular units are "movable dwellings" as defined by the Local Government Act ‑ modular units not "movable dwellings" ‑ modular units are "buildings" requiring approval pursuant to the Environmental Planning and Assessment Act 1979 (the EPA Act) ‑ no approval given for "buildings" pursuant to the EPA Act ‑ development consent invalid on this ground JUDICIAL REVIEW ‑ Ground 2 ‑ provision in local environmental plan sets three criteria mandated to be satisfied for stormwater disposal from the site ‑ consent authority considered and was satisfied as to one of the three mandatory provisions ‑ no evidence the consent authority considered two of the mandatory provisions ‑ required state of satisfaction not demonstrated concerning two mandatory stormwater criteria ‑ failure to consider and reach required state of satisfaction of mandated criteria renders development consent invalid ‑ appropriate to make declaration development consent invalid on this ground JUDICIAL REVIEW ‑ Ground 3 ‑ local environmental plan requires that consent authority be satisfied as to availability of services ‑ requirement that services are or will be available ‑ satisfaction of the deferred commencement condition ensures mandated service (access to sewer for effluent disposal) will be available for issue of construction/occupation certificate ‑ consent authority imposes deferred condition of consent ‑ deferred commencement condition permits consent authority to reach mandated conclusion that sewage service will be available ‑ mandatory prerequisite satisfied - challenge based on availability of sewage services rejected DISCRETION ‑ parties agree questions of relief to be deferred to future hearing if invalidity established - directions to be given to set date of and timetable for separate hearing on relief as a result of invalidity of development consent COSTS - costs to be addressed at hearing on exercise of discretion Legislation Cited: Blayney Local Environmental Plan 2012, cll 6.2 and 6.8 Environmental Planning and Assessment Act 1979 Local Government Act 1919, s 289E(1) Local Government Act 1993, s 68 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91 Jambrecina v Blacktown City Council [2009] NSWCA 228 Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284 Wyong Shire Council v Cohen and Anor [2004] NSWLEC 171 Category: Principal judgment Parties: Peter Ogilvie (Applicant) Rovest Holdings Pty Ltd (First Respondent) Blayney Shire Council (Second Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Mr M Wright SC (First Respondent) Submitting appearance (Second Respondent)