Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2)

In *Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2)*, the New South Wales Court of Appeal considered an appeal by Baulkham Hills Shire Council against orders made by Pain J in the Land and Environment Court. The dispute concerned the installation of two cabins by Ko-veda Holiday Park Estate Ltd on land subject to a development consent issued by the Council. The Council sought to enforce certain conditions of that consent.

The primary legal issues before the Court of Appeal were whether the two cabins were installed in breach of specific conditions of the development consent, and consequently, what relief the Council was entitled to. The Court was also required to determine the appropriate orders for the costs of the appeal, particularly in light of the conduct of the litigation by the parties.

The Court of Appeal found that the two cabins had indeed been installed in breach of conditions 1, 6, 30, and 41 of the development consent. The Court reasoned that the Council's appeal against the dismissal of its application for relief concerning the first respondent (Ko-veda Holiday Park Estate Ltd) should be allowed. The Court also addressed the costs of the appeal, noting that the appellant's proceedings and appeal were based on a false assumption that a construction certificate was required. Consequently, the Court departed from the general rule that costs follow the event, ordering that the first respondent pay one half of the appellant's costs of the appeal, while the appellant was ordered to pay the second respondent's costs of the appeal. The proceedings between the Council and the first respondent, including the question of relief and the costs of the hearing at first instance, were remitted to the Land and Environment Court for determination.