Denny v Optus Mobile Pty Ltd (No 2) [2023] NSWLEC 57

Denny v Optus Mobile Pty Ltd (No 2) [2023] NSWLEC 57

The Applicants were successful in having the development consent declared invalid. The Second and Third Respondents, as the consent authority, were liable for the Applicants' costs because the invalidity resulted from failures to comply with the statutory scheme in relation to the cl 4.6 variation and s 4.14 bush fire protection requirements. Although the First Respondent's cl 4.6 material contributed to Ground 1, the consent authority had to form its own opinion, and Ground 2 did not arise from the First Respondent's actions; considering the two grounds as a whole, the First Respondent was not required to pay the Applicants' costs.

Jurisdiction
Australia
Judgment Date
01 June 2023
Procedural Posture
Class 4 Judicial Review Proceedings Concerning Validity of a Development Consent; Costs / Judgment on Costs After the Development Consent Was Declared Invalid
Outcome
The Second and Third Respondents were ordered to pay the Applicants' costs; no costs order was made against the First Respondent.
Legal Topics
['costs Following the Event' 'submitting Appearances' 'validity of Development Consent' 'development Standard Variation Under Cl 4.6' 'bush Fire Protection Requirements']
['costs' 'planning and Environment' 'judicial Review'] ['costs Following the Event' 'submitting Appearances' 'validity of Development Consent' 'development Standard Variation Under Cl 4.6' 'bush Fire Protection Requirements']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Concerning Validity of a Development Consent; Costs / Judgment on Costs After the Development Consent Was Declared Invalid

Legal Issues

  1. 1 ['Whether the successful Applicants should receive their costs of the substantive proceedings.' "Whether all or only some Respondents should be liable for the Applicants' costs where the Respondents filed submitting appearances save as to costs." 'Whether the First Respondent, as beneficiary of the development consent, should be liable for costs jointly and severally with the consent authority.']

Ratio Decidendi

The Applicants were successful in having the development consent declared invalid. The Second and Third Respondents, as the consent authority, were liable for the Applicants' costs because the invalidity resulted from failures to comply with the statutory scheme in relation to the cl 4.6 variation and s 4.14 bush fire protection requirements. Although the First Respondent's cl 4.6 material contributed to Ground 1, the consent authority had to form its own opinion, and Ground 2 did not arise from the First Respondent's actions; considering the two grounds as a whole, the First Respondent was not required to pay the Applicants' costs.

Court Disposition

The Second and Third Respondents were ordered to pay the Applicants' costs; no costs order was made against the First Respondent.

Orders

  • ["The Second and Third Respondents are to pay the Applicants' costs of proceeding no. 2022/35494 as agreed or assessed."]