Twynam Investments Pty Ltd v Goulburn Mulwaree Council [2021] NSWLEC 7

Twynam Investments Pty Ltd v Goulburn Mulwaree Council [2021] NSWLEC 7

Because the 2008 development consent was still in force and permitted the development (as 'harm') of the relevant land, the exclusionary jurisdictional prerequisite in Sch 2(2)(d) of the Ministerial Order was not satisfied; thus, the Council lacked power to make the IHO. This fundamental invalidity meant the Respondent's defence had no reasonable prospects of success, engaging r 3.7(3)(f)(i) of the Court Rules and making it fair and reasonable for the Applicant to receive its costs, except for unnecessary photocopying.

Parties
Applicant: Twynam Investments Pty Ltd; Respondent: Goulburn Mulwaree Council
Jurisdiction
Australia
Judgment Date
04 February 2021
Procedural Posture
Class 1 Appeal Against Interim Heritage Order and Application for Costs / Costs Determination Following Discontinuance of Proceedings
Outcome
Application for costs granted. Proceedings discontinued. Costs order made against Respondent.
Legal Topics
Interim Heritage Orders, Jurisdictional Prerequisites, Costs in Class 1 Proceedings, Ministerial Orders Under Heritage Act
Planning and Environment Heritage Law Interim Heritage Orders Jurisdictional Prerequisites Costs in Class 1 Proceedings Ministerial Orders Under Heritage Act

Case Brief

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Parties

Twynam Investments Pty Ltd

Applicant

Goulburn Mulwaree Council

Respondent

Procedural Posture

Class 1 Appeal Against Interim Heritage Order and Application for Costs / Costs Determination Following Discontinuance of Proceedings

Legal Issues

  1. 1 Whether the making of an interim heritage order (IHO) by the Respondent was invalid due to failure to satisfy jurisdictional prerequisites in the Ministerial Order under s 25 of the Heritage Act 1977
  2. 2 Whether it is fair and reasonable to order the Respondent to pay the Applicant's costs upon discontinuance of the proceedings

Ratio Decidendi

Because the 2008 development consent was still in force and permitted the development (as 'harm') of the relevant land, the exclusionary jurisdictional prerequisite in Sch 2(2)(d) of the Ministerial Order was not satisfied; thus, the Council lacked power to make the IHO. This fundamental invalidity meant the Respondent's defence had no reasonable prospects of success, engaging r 3.7(3)(f)(i) of the Court Rules and making it fair and reasonable for the Applicant to receive its costs, except for unnecessary photocopying.

Court Disposition

Application for costs granted. Proceedings discontinued. Costs order made against Respondent.

Orders

  • The proceedings are discontinued.
  • The Respondent is to pay the Applicant's costs of the proceedings on the ordinary basis as agreed or assessed.