Ogilvie v Rovest Holdings Pty Ltd (No 2) [2023] NSWLEC 67

Land and Environment Court New South Wales

Medium Neutral Citation: Ogilvie v Rovest Holdings Pty Ltd (No 2) [2023] NSWLEC 67 Hearing dates: 31 May, 13 and 22 June 2023 Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Class 4 Before: Moore J Decision: See declaration and orders at [87] Catchwords: DISCRETION ‑ development consent found to be invalid on two separate bases ‑ consideration of what should be the consequences ‑ Applicant for declaration of invalidity accepts that an opportunity to rectify the defects found by seeking a Building Information Certificate for the structures and development consent for the use appropriate ‑ First Respondent has lodged applications for these with the Second Respondent ‑ declaration of invalidity made ‑ orders made to provide for pathway to rectification of invalidity ‑ contingent order made for demolition but order suspended until approvals obtained ‑ if approval is obtained, demolition order discharged ‑ if approval is unable to be obtained, demolition required COSTS ‑ Applicant seeks costs of proceedings on ordinary basis ‑ no dispute as to Applicant's costs entitlement ‑ First Respondent proposes that it, and Second Respondent, should be jointly liable for Applicant's costs ‑ Second Respondent opposes imposition of any costs liability on it ‑ Second Respondent also proposes that, if costs liability is to be imposed on Second Respondent, costs should be apportioned ‑ Second Respondent had filed submitting appearance save as to costs ‑ consideration of responsibility for causes of invalidity ‑ Second Respondent solely responsible for one cause of invalidity ‑ Second Respondent independently considered the first cause of invalidity not relying solely on materials submitted by the First Respondent ‑ appropriate to make costs order that First and Second Respondents be jointly liable for the Applicant's costs of the primary proceedings COSTS ‑ costs of supplementary hearings on discretion ‑ supplementary hearings solely as a result of First Respondent seeking variation to proposed dispositive orders ‑ Second Respondent plays no part in supplementary discretion hearings ‑ not appropriate that Second Respondent bears any of the Applicant's costs of the supplementary discretion hearings ‑ First Respondent to pay the Applicant's costs of the supplementary discretion hearings Legislation Cited: Blayney Local Environment Plan 2012, cl 6.2 Civil Procedure Act 2005, s 98(1) Environmental Planning and Assessment Act 1979, s 4.12 Local Government Act 1993, s 68 Cases Cited: Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463 Ireland v Cessnock Council (1999) 110 LGERA 311; [1999] NSWLEC 250 James v Surf Road Nominees [2004] NSWCA 475 Lee Environmental Planning Pty Ltd v Reulie Land Co Pty Ltd [2020] NSWCA 254 Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17 Platford v van Veenendaal (No 2) [2018] NSWLEC 86 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Consequential orders Parties: Peter Ogilvie (Applicant) Rovest Holdings Pty Ltd (First Respondent) Blayney Shire Council (Second Respondent) Representation: Counsel: Mr T To, barrister, primary hearing on discretion and costs Mr J Oldknow, solicitor, supplementary hearings on discretion (Applicant) Mr M Wright SC (First Respondent) Mr T Ward, solicitor, on the issue of costs only (Second Respondent)