Inglis v Buckley (No 2) [2023] NSWLEC 113

Inglis v Buckley (No 2) [2023] NSWLEC 113

The Applicant was successful on ground 1, which concerned the Council's failure to form the requisite state of satisfaction under cl 4.2C(3)(c) of the Tumut Local Environmental Plan 2012 (NSW). The Council's assistance to the Court under the Hardiman principle did not prevent a costs order against it, and no circumstance justified reducing its liability. Ground 2 was not frivolous or lacking merit and was not sufficiently dominant and separate to justify apportionment. The First Respondent was not obliged to surrender the consent or act as contradictor, and his material did not contribute to the Council's error. Accordingly, the Council alone was liable for the Applicant's costs of both...

Jurisdiction
Australia
Judgment Date
25 October 2023
Procedural Posture
Class 4 Costs Proceeding Arising From Judicial Review of a Development Consent / Determination on the Papers of Reserved Costs After the Development Consent Was Declared Invalid and Void
Outcome
The Council Second Respondent was ordered to pay the Applicant's costs of the substantive proceeding and the costs proceeding; no costs order was made against the First Respondent.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'submitting Appearance' 'hardiman Principle' 'judicial Review of Development Consent' 'apportionment of Costs']
['costs' 'environmental Planning and Assessment' 'administrative Law'] ['party/party Costs' 'costs Follow the Event' 'submitting Appearance' 'hardiman Principle' 'judicial Review of Development Consent' 'apportionment of Costs']

Case Brief

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Procedural Posture

Class 4 Costs Proceeding Arising From Judicial Review of a Development Consent / Determination on the Papers of Reserved Costs After the Development Consent Was Declared Invalid and Void

Legal Issues

  1. 1 ['Whether the successful Applicant should receive all of his costs of the substantive proceeding' "Whether the Council Second Respondent should be liable for the Applicant's costs despite its asserted limited role in assisting the Court" "Whether the First Respondent who filed a submitting appearance should also be liable for the Applicant's costs" 'Whether costs should be apportioned so as to exclude costs relating to ground 2' "Whether the Council should pay the First Respondent's costs of the costs application"]

Ratio Decidendi

The Applicant was successful on ground 1, which concerned the Council's failure to form the requisite state of satisfaction under cl 4.2C(3)(c) of the Tumut Local Environmental Plan 2012 (NSW). The Council's assistance to the Court under the Hardiman principle did not prevent a costs order against it, and no circumstance justified reducing its liability. Ground 2 was not frivolous or lacking merit and was not sufficiently dominant and separate to justify apportionment. The First Respondent was not obliged to surrender the consent or act as contradictor, and his material did not contribute to the Council's error. Accordingly, the Council alone was liable for the Applicant's costs of both...

Court Disposition

The Council Second Respondent was ordered to pay the Applicant's costs of the substantive proceeding and the costs proceeding; no costs order was made against the First Respondent.

Orders

  • ["The Council Second Respondent is to pay the Applicant's costs of the substantive proceeding as agreed or assessed." "The Council Second Respondent is to pay the Applicant's costs of the costs proceeding as agreed or assessed."]