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

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

Given the findings of invalidity of development consent, the proper course is to allow the First Respondent to regularise the works and use by making applications for a Building Information Certificate and for development consent. Demolition is ordered only on a contingent basis, subject to whether such approvals are ultimately granted; if granted, the demolition order is discharged. Both Respondents are jointly liable for costs of the primary proceedings, as legal errors were partly attributable to each, except that costs of supplementary discretion hearings are to be borne by the First Respondent alone.

Jurisdiction
Australia
Judgment Date
28 June 2023
Procedural Posture
Class 4 Judicial Review and Consequential Orders / Post Judgment Consequential Orders and Costs
Outcome
Declaration of invalidity of development consent; restraint on works; contingent demolition order subject to stay and discharge; costs orders as set out.
Legal Topics
['development Consent Validity' 'regularisation of Unauthorised Development' 'discretionary Relief' 'development Application Process' 'costs in Class 4 Proceedings']
['planning and Environment Law' 'administrative Law'] ['development Consent Validity' 'regularisation of Unauthorised Development' 'discretionary Relief' 'development Application Process' 'costs in Class 4 Proceedings']

Case Brief

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Procedural Posture

Class 4 Judicial Review and Consequential Orders / Post Judgment Consequential Orders and Costs

Legal Issues

  1. 1 ['What consequences should follow from the invalidity of development consent granted for motel use and installation of modular units?' 'Whether to grant orders (including demolition) or allow opportunity for regularisation of works via Building Information Certificate and new DA?' 'How to apportion costs between First Respondent and Second Respondent given errors by both?']

Ratio Decidendi

Given the findings of invalidity of development consent, the proper course is to allow the First Respondent to regularise the works and use by making applications for a Building Information Certificate and for development consent. Demolition is ordered only on a contingent basis, subject to whether such approvals are ultimately granted; if granted, the demolition order is discharged. Both Respondents are jointly liable for costs of the primary proceedings, as legal errors were partly attributable to each, except that costs of supplementary discretion hearings are to be borne by the First Respondent alone.

Court Disposition

Declaration of invalidity of development consent; restraint on works; contingent demolition order subject to stay and discharge; costs orders as set out.

Orders

  • ['Declaration that the development consent is invalid and of no effect.' 'First Respondent restrained from carrying out any works under the invalid consent.' 'Works carried out in reliance on the invalid consent to be demolished and removed within six months, but that order is suspended pending determination of...