Denise Lyn Hurley v Tweed Shire Council

Decision: The Court makes the following orders:
(1) Proceedings 2025/00350820 are dismissed.
(2) Proceedings 2025/00349222 are dismissed.

Catchwords: PRACTICE AND PROCEDURE – motion to dismiss proceedings or, in the alternative that various claims be struck out – whether enforcement of a deed of settlement and release between the applicant and the respondent falls within the Land and Environment Court jurisdiction as an ancillary matter pursuant to s 16(1A) of the Land and Environment Court Act 1979 (NSW) – whether proceedings relate to subject matter of proceedings settled by deed – whether deed repudiated – whether deed can operate as a bar to judicial review proceedings

Legislation Cited: Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Land and Environment Court Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Local Government Act 1919 (NSW)

Cases Cited: Arnold v Minister Administering the Water Management Act 2000 (2008) 73 NSWLR 196
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251
Citta Hobart v Cawthorn (2022) 276 CLR 216
Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42
Duncan v Moore (2002) 107 LGERA 430
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603
International Air Transport Association v Ansett Australian Holidays Ltd (2008) 234 CLR 151
Marinchek v Cabport Pty Ltd [2010] NSWCA 334
Nix v Pittwater Council (1994) 84 LGERA 199
NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403
Parramatta City Council v Transport Construction Authority [2011] NSWLEC 49
Transport Construction Authority v Parramatta City Council [2010] NSWSC 1168

Texts Cited: Macquarie Dictionary, online ed.

Category: Procedural rulings

Parties: Denise Lyn Hurley (Applicant)
Tweed Shire Council (Respondent)

Representation: Counsel:
D Hurley in person (Applicant)
J Walker, solicitor (Respondent)
Solicitors:
Maddocks (Respondent)

File Number(s): 2025/00350820
2025/00349222

JUDGMENT

Introduction

1. By two notices of motion filed on 20 October 2025, Tweed Shire Council (Council) seeks orders pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) and cl 3.1.2 of a Deed of Settlement and Release between Council and Denise Hurley (the applicant) dated 22 January 2025 (the Deed) dismissing two Class 4 judicial review proceedings. The Class 4 proceedings were commenced by summons filed on 12 September 2025 (the 2025 proceedings) by the applicant in relation to a property at 19 Chinderah Bay Drive, Chinderah (the property). In the alternative, the notices of motions seek that various claims in the applicant’s amended summonses filed on 24 November 2025 be struck out. The Class 4 proceedings concern the lawfulness of a cottage on the property (the cottage) and Council’s refusal to issue a building information certificate (BIC) for the cottage pursuant to an application made by the applicant pursuant to s 6.23 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) on 15 January 2025 (the BIC application).

2. Council contends that the 2025 proceedings are barred by the Deed which was entered into by the parties for the purpose of resolving two Class 1 proceedings commenced in this Court in 2024 (the 2024 proceedings). In the alternative, Council asks the Court to otherwise strike out the 2025 proceedings due to defects in the applicant’s pleadings.

3. By amended summons 2025/350820 filed on 24 November 2025, the applicant seeks the following relief in relation to a condition of a development consent, DA 19/0825 (the 2020 consent), purporting to require the decommissioning of the cottage (condition 13), contending for the retention of existing use rights:

1. Declaration – Condition 13 invalid (ultra vires).

That Condition 13 of DA19/0825 (18 Mar 2020), as carried forward by DA19/0825.01 (3 Feb 2021 ), is invalid and of no legal effect to the extent it purports to regulate or require the decommissioning of the 1953 Cottage, which was not the subject of the development application and retained lawful existing-use rights (EP&A Acts 4.17; ss 4.65-4.67).

2. Declaration – Existing-use rights.

That the 1953 Cottage at 19 Chinderah Bay Drive retains lawful existing-use rights as a dwelling and those rights have not been lawfully extinguished or surrendered. (EP&A Act ss 4.65-4.67; historical continuity from I DO/Part XIIA).

3. Declaration – Continuing reliance invalid.

That Council's continued reliance on Condition 13, as restated in correspondence dated 7 July 2025 and 31 July 2025, is invalid and of no effect.

4. In the alternative – Certiorari

An order in the nature of certiorari quashing Condition 13 of DA19/0825.01 and Council's subsequent reliance upon it (including the 7 July 2025 and 31 July 2025 correspondence).

5. Ancillary/mandatory orders.

a) Council be restrained from relying on Condition 13 of DA19/0825 / DA19/0825.01, including as restated in July 2025 correspondence, to deny recognition of the 1953 Cottage's existing-use rights; and

b) Council correct its planning/consent records to reflect the invalidity of Condition 13 so far as it purports to regulate the 1953 Cottage.

…

4. By amended summons 2025/349222 also filed on 24 November 2025, the applicant seeks the following relief in relation to a handwritten condition (condition 2) on Notice of Permission for Development Involving the Use of Land or of Buildings Already Erected BA 263/71 which had a handwritten office note “PN. 2289” (not 2298) (3 August 1971) (the 1971 approval) and what she contends are existing use rights. [1]

1. Declaration – Existing use rights

That the 1953 Cottage at 19 Chinderah Bay Drive retains lawful existing-use rights as a dwelling, preserved under Part XIIA of the Local Government Act 1919 and Interim Development Order No. 2, and that such rights have never been lawfully extinguished or surrendered.

2. Declaration – Condition 2

That the purported handwritten "Condition 2" in black ink on Council's office copy of Development Consent No. 2298 (3 August 1971), added after the permit was executed and signed in blue ink, was not part of the consent as granted and is invalid and of no legal effect.

3. Declaration – Council's July 2025 refusals

That Council's decisions and positions communicated by email dated 7 July 2025 and letter dated 31 July 2025 (ref. BC24/0137), refusing to issue a Building Information Certificate and maintaining reliance on the purported "Condition 2" to deny existing use rights, are invalid and of no legal effect.

4. In the alternative – Certiorari

An order in the nature of certiorari quashing the decisions of 7 July 2025 and 31 July 2025 (BC24/0137).

5. Declaration – Absence of statutory extinguishment record

That Tweed Shire Council holds no statutory record of any surrender or extinguishment of the 1953 Cottage's existing-use rights under Part XIIA of the Local Government Act 1919, nor any Gazette amendment to Interim Development Order No. 2.

6. Ancillary/mandatory orders

(a) That Council correct its planning and consent records to remove or annotate the purported "Condition 2."

(b) That Council be restrained from relying on the purported "Condition 2" to deny existing-use rights or refuse certification in respect of the 1953 Cottage.

…

5. By its notice of motion 2025/00350820-003 filed on 20 October 2025, Council seeks the following orders:

1. These proceedings be dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) and cl 3.1.2 of the Deed of Settlement and Release between the applicant and the respondent dated 22 January 2025.

2. In the alternative to Order 1, pursuant to s 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the following claims in the Amended Summons dated 26 September 2025 be struck out:

a. Orders 1 and 4 on the basis that this claim is frivolous or vexatious because Condition 13 of DA 19/0825 has been complied with, and a Construction Certificate issued pursuant to this condition, therefore it has no ongoing effect.

b. Order 2 on the basis that it is frivolous or vexatious because it is identical to the relief sought in Order 1 of Proceedings 2025/349222.

c. Order 3 on the grounds that it does not disclose a reasonable cause of action, because the respondent's letters of 7 July 2025 and 31 July 2025 are not reviewable decisions.

d. Orders 5 - 7 because they are consequential upon the above claims being made out, which are not maintainable for the reasons stated above.

3. Further, or in the alternative to Order 2, that the applicant be directed to file Points of Claim setting out the factual and legal basis for her claims.

…

6. By its notice of motion 2025/00349222-003 also filed on 20 October 2025, Council seeks the following orders:

1. These proceedings be dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) and cl 3.1.2 of the Deed of Settlement and Release between the applicant and the respondent dated 22 January 2025.

2. In the alternative to Order 1, pursuant to s 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the following claims in the Amended Summons dated 26 September 2025 be struck out:

a. Orders 3 and 4 on the grounds that they do not disclose a reasonable cause of action, because the respondent's letters of 7 July 2025 and 31 July 2025 are not reviewable decisions.

b. Order 5 in the Amended Summons dated 26 September 2025 on the grounds that this is not a matter which could properly be the subject of a declaration.

4. In the alternative to Order 1, and further to Order 2, that the applicant be directed to file Points of Claim setting out the factual and legal basis for her claims.

…

7. Clause 2 of the Deed relevantly provides:

2. Payment by Council and revocation of DCO

2.1 Subject to the terms of this Deed and in consideration of the release in clause 3 and the Applicant’s obligations in clause 5, the Council will within 10 Business Days of the date of this deed:

2.1.1 pay the Applicant the Settlement Sum by bank transfer; and

2.1.2 revoke the November 2024 DCO.

2.2 The Council acknowledges and agrees that, subject to clause 2.3, for so long as the Applicant is the owner of the Property, the Council will not:

2.2.1 issue a DCO in replacement of the December 2023 DCO; or

2.2.2 issue any other DCO or take any other enforcement action under the Act,

In relation to the physical condition of the Cottage or the Carport as constructed and fitted out at the date of this Deed. …

8. Clause 3.1 of the Deed relevantly provides:

3.1 Releases by the Applicant

The Applicant:

3.1.1 releases and discharges the Council from all Claims relating to the subject matter of the Proceedings, except for any Claims to enforce obligations under this Deed;

3.1.2 agrees not to commence or maintain any claim against Council relating to the subject matter of the Proceedings (with the exception of a Claim or action for breach or enforcement of this Deed)…

9. A claim is defined in the definition clause of the Deed as follows:

Claim means any claim, allegation, debt, cause of action, liability, proceeding or demand of any nature however it arises and whether it is present or future, fixed or unascertained, actual or contingent (whether or not the facts, matters or circumstances giving rise to that claim are known to that person or to any other person at the date of this Deed) and whether at law, in equity, under statute or otherwise.

10. The purpose of the Deed was to resolve the earlier 2024 proceedings which arose in relation to a development control order requiring, amongst other things, the demolition of the cottage (the December 2023 DC****O), which was later revoked and replaced with another development control order (the November 2024 DCO), requiring demolition of the flat-roofed section of the cottage.

11. In effect, Council contends that the two 2025 proceedings represent one cause of action which asserts existing use rights for the cottage and, consequently, that Council ought grant a BIC to the applicant, and that by bringing proceedings asserting existing use rights, the applicant is contravening cl 3.1.2 of the Deed. Accordingly, Council contends that both of the 2025 proceedings should be dismissed as disclosing no reasonable cause of action.

Issues

12. Council raised the following issues for determination on its notices of motion:

13. whether the Court has jurisdiction to enforce the Deed – that is, whether the enforcement of the Deed falls within the Court’s ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (NSW) (the Court Act) (I****ssue 1);

14. whether the 2025 proceedings are barred by the Deed – that is, whether the 2025 proceedings are claims “relating to the subject matter” (within the meaning of cl 3.1.2 of the Deed) of the 2024 proceedings (I****ssue 2); and

15. whether the 2025 proceedings should otherwise be struck out due to pleading defects (I****ssue 3).

16. The applicant raised the following further issues:

17. whether Council repudiated the Deed by taking enforcement action, which depends on whether Council’s conduct in assessing and refusing the BIC application amounted to “enforcement action” under the EPA Act (I****ssue 4); and

18. whether the Deed can be relied upon to prevent the Court from exercising its judicial review function (I****ssue 5).

Relevant legislative provisions

14. Section 16 of the Court Act relevantly provides in relation to the jurisdiction of the Court:

16 Jurisdiction of the Court generally

(1) The Court shall have the jurisdiction vested in it by or under this or any other Act.

(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.

…

15. Rule 13.4 of the UCPR provides in relation to frivolous and vexatious proceedings:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

…

16. Division 6.7 of Part 6 of the EPA Act concerns BICs, and relevantly provides as follows in relation to the assessment of applications for, and the issuing of, BICs:

6.24 Issue of building information certificates

(1) A council is (subject to this Division) required to issue a building information certificate as soon as practicable after an application for the certificate is made to the council.

…

6.25 Issue, nature and effect of building information certificate

(1) A building information certificate is to be issued by a council only if it appears that—

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i) to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

…

6.26 Miscellaneous provisions relating to building information certificates

…

(2) On receipt of an application for a building information certificate, the council may, by notice in writing served on the applicant, require the applicant to supply it with such information (including building plans, specifications, survey reports and certificates) as may reasonably be necessary to enable the proper determination of the application.

…

(4) If the council refuses to issue a building information certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.

(5) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building information certificate.

…

(7) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building information certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.

…

Factual background and evidence

17. The following factual background is derived from the affidavit of Council’s solicitor, Josie Walker, and the exhibit thereto, as well as relevant documents tendered by the parties.

18. On 31 August 1971, Council issued the 1971 approval which permitted the “erection of a private dwelling”, subject to condition 2 which provided that the cottage was “not to be used for habital [sic] purposes”.

19. On 3 February 2021, Council sent the applicant an amended development consent DA19/0825 for the “demolition of existing dwelling and construction of two storey dwelling and in-ground swimming pool” (the 2020 consent). Condition 13 provided that the cottage was either to:

a) Be lawfully approved by way of a development application lodged with Council seeking development consent for a permissible use, or:

b) Be decommissioned to the satisfaction of Council by way of removal of the kitchen and any associated plumbing, and any laundry facilities. [2]

20. Previously on 21 May 2020, Council had issued a construction certificate after a site inspection confirmed that the cottage had been decommissioned.

21. On 19 December 2023, Council gave the December 2023 DCO requiring the demolition of the cottage. The reasons for the order included:

The structure (cottage) was previously an unapproved dwelling prior to construction of the current existing legal dwelling approved as BA263/71.

A condition was placed on BA263/71 stating that the older existing dwelling (cottage) must not be used for habitable purposes. The structure therefore does not benefit from existing use rights.

…

The cottage is not considered to have formal consent as an outbuilding as DA19/0825 has been commenced and formal consent has not been sought to regularise use of the structure. …

22. The reasons for the December 2023 DCO also referenced correspondence from the applicant, including statements by the applicant that:

it is essential to note that there is currently no other dwelling on the property apart from the cottage. Consequently, it follows that the original cottage, retains its approval as an outbuilding as Condition No. 2 of Permit 2298 states – for non-habitable purposes.

…

I would like to address the reference made to Condition No. 2 of Permit 2298, which states, “the existing dwelling is not to be used for habitable purposes.” I have previously informed you that the building is being used for storage, which is a legitimate and permitted usage. …

23. On 15 January 2024, the applicant filed a Class 1 appeal against the December 2023 DCO (the first 2024 proceedings).

24. On 31 July 2024, the applicant filed a statement of facts and contentions in the first 2024 proceedings which included the following statements:

3.1 The Cottage has an approved use for non-habitable purposes as a condition of the permit obtained in 1971 under BA 263/71. …

3.2 The Cottage retained existing use rights under this approval (BA 263/71).

25. On 5 September 2024, the applicant filed a notice of motion in the first 2024 proceedings seeking her costs of those proceedings. In an affidavit filed in support, the applicant stated that the “structure was legally approved and compliant”.

26. On 6 November 2024, Council revoked the December 2023 DCO and replaced it with the November 2024 DCO which only required demolition of the flat-roofed section of the cottage, including the covered deck, bathroom and laundry cupboard which Council alleged was built between May and August 2019 after the demolition of an original “lean-to” extension (the rear addition). The reasons for the order included:

13. The cottage on the Property was originally built in or around 1952, however formal approval under Council reference BA159/53 cannot be located.

14. In 1971, a Building Permit for a new ‘dwelling and flat’ under BA263/71 that was granted with the condition that the ‘existing dwelling (ie the cottage) is not to be used for habitable purpose’. The new dwelling the subject of that approval was constructed and occupied between about 1971 and 2021.

15. Even if approval for the cottage was granted in 1953, giving rise to existing use rights (which has not been proven), the 1971 Building Permit made residential occupation of the cottage unlawful while the 1971 dwelling was occupied. Therefore, even if the cottage was occupied and used as a dwelling without interruption from 1953, it was not lawfully occupied for this purpose between about 1971 and 2021. Unlawful use cannot result in the creation or preservation of existing use rights.

…

23. Council’s records show that no consent has been granted for the demolition of the original lean-to or for the construction of the Rear Addition in 2019.

24. The construction of the Rear Addition was carried out in breach of s 4.3 of the Act because it is development for a residential purpose which is prohibited in the MU-1 Mixed Use Zone, and the cottage does not have existing use rights for residential purposes for the reasons set out in [13]-[15] above.

27. On 3 December 2024 the applicant filed a Class 1 appeal against the November 2024 DCO (the second 2024 proceedings).

28. On 22 January 2025, the parties entered into the Deed for the purpose of resolving the two 2024 proceedings. In the proceedings before me, each of the parties waived confidentiality in the Deed.

29. On 15 January 2025, the applicant made the BIC application for the rear addition.

30. On 11 March 2025, Council issued a building inspection report in relation to the BIC application. That report concluded “Work Unsatisfactory”, and stated that the following matters were to be addressed: “1) All plumbing fixtures/fittings and their associated plumbing & drainage pipework together with the kitchen, laundry and bathroom cupboards are to be totally removed”.

31. On 21 May 2025, Council issued another building inspection report in relation to the BIC application, concluding “Work Unsatisfactory”, and requested the applicant to send photos of the rectification works requested in the building inspection report issued on 11 March 2025.

32. On 7 July 2025, Council emailed the applicant to inform her that it had “requested staff to prepare a refusal of the BIC application”. The reasons for the “Potential BIC Refusal” included:

Under section 6.25 of the EP&A Act, the council may issue a BIC only if it is satisfied that no matters exist that would entitle it to issue orders or pursue legal proceedings under the EP&A Act or the Local Government Act 1993. The perceived presence of the kitchen in the outbuilding violates condition 13 of DA19/0825, suggesting potential use as a dwelling, which may require separate development consent in the MU1 Mixed Use zone …

33. On 31 July 2025, Council sent a letter to the applicant stating that “Council retains the discretion to decline to issue a BIC in the circumstances”. The reasons included:

In 1971, approval was granted for a second dwelling on the site (BA263/71), and a condition (Condition No. 2) was imposed prohibiting habitable use of the original dwelling (cottage) structure, with the effect that only a single dwelling would persist on the lot.

In 2020, Condition 13 of DA19/0825.1 required the decommissioning of the structure, as it then existed.

Existing use rights do not survive where a subsequent development approval, such as that issued in 1971, validly alters or extinguishes those rights, particularly where the later approval is acted upon without challenge.

34. The letter further stated that Council would proceed with its assessment of BC24/0137 in due course, and should it determine to refuse the BIC, it would provide written reasons.

35. On 12 September 2025, the applicant commenced the 2025 proceedings.

36. On 20 October 2025, Council sent a notice of refusal to the applicant, stating that it had determined to refuse the BIC application made on 15 January 2025.

37. In opposition to the notices of motion, the applicant read the affidavit of Denise Lyn Hurley affirmed 5 December 2025. Council objected to a large portion of the affidavit as consisting of submissions and assertions. The paragraphs objected to were admitted subject to being treated as in the nature of submissions. In her affidavit, Ms Hurley made numerous statements to the effect that Council incorrectly relied on conditions 2 and 13 in its assessment of the BIC application, and referred to Council’s assertion that the cottage had no existing use rights.

Issue 1: Whether the Court has jurisdiction pursuant to s 16(1A) of the Court Act in relation to the Deed

38. In Nix v Pittwater Council [3] (Nix), Gleeson CJ (Priestley and Powell JJA agreeing) said at 204 in relation to s 16(1A) of the Court Act:

The purpose of the legislature in enacting s 16(1A) was to reduce the number of cases which might give rise to a multiplicity of proceedings by amplifying, to some extent, the jurisdiction of the Land and Environment Court.

39. Further, at 205 the chief justice said in relation to s 16(1A):

The New South Wales legislature used, in s 16(1A), the word “ancillary” rather than “associated”. In his Second Reading Speech, the minister introducing the amending legislation spoke of removing the necessity for “genuinely ancillary proceedings” to be removed to another court: (NSW, Legislative Assembly, Hansard, 11 March 1993, at 725).

The relationship between two matters referred to in s 16(1A) is clearly intended to be a narrower one than that of association. The relevant dictionary meanings given to “ancillary” are incidental, accessory, or auxiliary: Macquarie Dictionary. The word derives from the Latin “ancilla”, a hand-maid: see the discussion in Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12.

40. In Duncan v Moore, [4] Talbot J at [35] adopted what was said by Gleeson CJ in Nix, namely that the subsection amplified the jurisdiction to some extent, adding at [35]-[36]:

So far, the extent to which the jurisdiction has been enlarged has not been defined. It is better in my view that for the time being it be left to be decided on a case by case basis.

Nevertheless it is not open for the Court to take the meaning of the word “ancillary” beyond its true meaning as something that is subservient or subordinate to another thing.

41. In Arnold v Minister Administering the Water Management Act 2000 [5] (Arnold), Spigelman CJ said at [75] that a matter will be ancillary within the meaning of s 16(1A) where the determination of the legal issue in the matter constitutes an “essential step in the course of determining an issue” that is within the jurisdiction of the Court. It was not, however, necessary for a matter to constitute an “essential step” in order for it to be ancillary. At [68], the chief justice said:

It is not necessary to reach the level of essentiality, it is sufficient if the issues are ancillary. However, the applicants contend that the challenge to the Commonwealth conduct was an essential step with respect to some of the ways in which they seek to challenge the validity of State conduct. I have set out the pleadings above. If the challenge can be characterised as “essential”, I cannot see how it would not be “ancillary” to the challenge to State conduct.

42. In NTL Australia Pty Ltd v Minister for Land and Water Conservation [6] (NTL Australia), Pearlman CJ of LEC at [25] adopted the statement of Talbot J in Duncan v Moore [7] at 319 that “matters brought within the Court’s jurisdiction by s 16(1A) are only those matters which must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction”.

43. A case of particular relevance to the Court’s jurisdiction to enforce a deed is Transport Construction Authority v Parramatta City Council [8] (Parramatta NSWSC). In that case, the parties had executed a deed of release and settlement in relation to proceedings in the Court objecting to the amount of compensation paid for the compulsory acquisition of Council’s land pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). The Council later brought Class 3 proceedings in the Court: Parramatta City Council v Transport Construction Authority [9] (Parramatta NSWLEC). The Transport Construction Authority brought proceedings in the Supreme Court seeking a declaration that the deed operated to bar the proceedings in this Court, and Council filed a notice of motion seeking to transfer the proceedings to this Court to be heard together with the proceedings brought by Council in this Court. The Transport Construction Authority opposed the transfer, submitting that it “should not be ‘vexed’ in the Land and Environment Court when the whole point of its proceedings in the Supreme Court was to prevent its involvement in the proceedings for compensation” (at [30]). Gzell J rejected this submission, stating at [31]:

But the Authority is already “vexed” in the Land and Environment Court. It is a party to the current proceedings. With the response by the Council with respect to the effect of the deed, the Land and Environment Court is poised to decide whether or not it will determine whether the deed is a bar to the proceedings before it as a preliminary question.

44. His Honour at [36] provided the following further reasons in relation to why the Land and Environment Court was the more appropriate forum in which to seek relief in relation to the deed:

The deed was executed by the Authority and the Council with respect to proceedings in the Land and Environment Court. All the relief sought by the Authority in the Supreme Court is with respect to the current proceedings in the Land and Environment Court. A declaration is sought that the deed applies in respect of the portions of Argyle and Wentworth Streets acquired by the Authority. A declaration is sought that the deed operates as a bar to the current proceedings in the Land and Environment Court. A declaration is sought that the deed has the effect of compromising for all time the earlier proceedings in the Land and Environment Court. An order is sought enjoining the Council from pursuing or prosecuting the current proceedings in the Land and Environment Court. The issues upon which these claims to relief are based are issues that may, as well, be determined by the Land and Environment Court.

45. The Transport Construction Authority had also contended that the Supreme Court was the more appropriate forum to deal with a possible argument by Council that the deed should be read down or rectified in equity. While ultimately holding that the Land and Environment Court had jurisdiction to determine a rectification issue by virtue of s 149E of the Civil Procedure Act 200**5 (NSW), Gzell J said at [41] to [43] that “it may be that rectification is ancillary to the proceedings for compensation”:

Secondly, it may be that rectification is ancillary to the proceedings for compensation, should leave to proceed be granted.

In Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; (2008) 73 NSWLR 196 at 215 [75], Spigelman CJ with whom Allsop P and Handley AJA agreed, said of the Land and Environment Court Act, s 16(1A):

“For present purposes it is sufficient to state that, where the determination of a legal issue constitutes an essential step in the course of determining an issue that is within the jurisdiction of a court, then the determination of the former will be ‘ancillary’ to the determination of the latter.”

If it was the common intention of the Authority and the Council that the deed would not bar proceedings for compensation with respect to the portions of Argyle and Wentworth Streets, but the deed contained a bar, its rectification might constitute an essential step in the course of determining proper compensation.

46. In Council of the City of Sydney v Wilson Parking Australia Pty Ltd [10] (Wilson Parking), the respondent gave an undertaking to cease use of premises in exchange for Council agreeing not to commence enforcement proceedings. After the respondent breached this undertaking, Council brought proceedings seeking both to enforce the undertaking and the planning law breach. Beech-Jones AJ held that the Land and Environment Court had jurisdiction under s 16(1A) of the Court Act to enforce the undertaking, stating at [49]:

The origin of the undertaking was a long standing dispute over whether or not Wilson was in breach of s 76A. The Council has now applied to this Court for a judicial determination of that dispute. In substance the dispute as to whether it was resolved by an enforceable undertaking is truly ancillary to the Class 4 dispute.

47. Council submitted that the determination of whether the Deed acts as a bar to the commencement of the 2025 proceedings by the applicant is a matter ancillary to the proceedings according to either test in Arnold or NTL Australia because the Court cannot proceed to determine the substantive proceedings until the effect of the Deed is resolved.

48. In relation to Parramatta NSWSC, Council submitted that although it was not necessary for Gzell J to determine the issue, his Honour at [41] to [43] inclined to the view that enforcement of the deed was ancillary to the Class 3 proceedings for market value compensation pursuant to the Land Acquisition *(*Just Terms Compensation) Act citing Arnold at [75]. In relation to Wilson Parking, Council submitted that while not “exactly analogous” to the present case because in that case enforcement of the agreement was relied upon as an alternative pathway to the relief which was also sought in the Class 4 proceedings, rather than as a bar to proceedings, it showed in principle that enforcement of a private agreement can be a matter ancillary to Class 4 proceedings concerning the same subject matter. Enforcement of the Deed in this case was submitted to be “more clearly ancillary” because “it is an essential step in determining whether the proceedings overall should proceed to hearing or should be summarily dismissed”.

49. The applicant submitted that the authorities referred to by Council did not establish that this Court has jurisdiction to enforce the Deed as they concerned “different issues”. The applicant did not refer to Parramatta NSWSC, only to Paramatta NSWLEC, submitting that any “observations concerning ancillary jurisdiction were obiter and not necessary to the decision”. The applicant cited Wilson Parking as supporting the proposition that while this Court may consider a deed “incidentally where necessary”, it “cannot enforce a deed as a freestanding bar to judicial review”.

50. I am satisfied that the question of the effect of the Deed is a matter that is ancillary to a matter that falls within the jurisdiction of the Court, that is, the 2025 proceedings that were commenced by the applicant in Class 4 of the Court’s jurisdiction concerning the lawfulness of the cottage and Council’s refusal to issue a BIC for the cottage pursuant to an application made by the applicant pursuant to s 6.23 of the EPA Act on 15 January 2025. Council contends in its notices of motion that the applicant is barred by cl 3.1.2 of the Deed which was entered into for the purpose of resolving the 2024 proceedings from commencing or maintaining any claim against Council relating to the 2024 proceedings. I am satisfied that the 2025 proceedings relate to the subject matter of the 2024 proceedings, namely the existence of existing use rights in relation to the cottage and the validity or otherwise of condition 13 of the 2020 consent, and the validity or otherwise of condition 2 of the 1971 approval.

51. It is plainly desirable, in order to avoid a multiplicity of proceedings and in the interests of the just, quick and cheap resolution of the issues in the 2025 proceedings, to have the effect of cl 3.1.2 of the Deed determined in this Court, rather than removed to another Court with jurisdiction in relation to it. The effect of cl 3.1.2 of the Deed, and the question of whether the applicant is barred from bringing the 2025 proceedings in this Court, are matters that are ancillary to the 2025 proceedings which are Class 4 proceedings within the jurisdiction of the Court. The determination of the legal issues in relation to the effect of the Deed constitutes an “essential step” in the course of determining an issue that is within the Class 4 jurisdiction vested in the Court, namely the existence or otherwise of existing use rights and the validity or otherwise of conditions 13 and 2 respectively of the 2020 consent and the 1971 approval. The resolution of the effect of the Deed is a matter brought within the Court’s jurisdiction by s 16(1A) of the Court Act as a matter which “must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction”: NTL Australia at 319 (Pearlman CJ of LEC). As in Parramatta NSWSC, this Court is “poised to decide whether … the deed is a bar to the proceedings before it as a preliminary question”: Gzell J at [31]. I have accepted Council’s submission that the Court cannot proceed to determine the substantive Class 4 proceedings until the effect of the Deed is resolved, the resolution of that question being an essential step in determining whether the Class 4 proceedings should proceed to hearing or should be dismissed pursuant to Pt 13 r 13.4 of the UCPR as disclosing no reasonable cause of action.

Issue 2: Whether the 2025 proceedings are claims relating to the subject matter of the 2024 proceedings

52. Pursuant to cl 3.1.2 of the Deed, the applicant agreed not to commence or maintain any claim against Council “relative to” the subject matter of the proceedings (with the exception of a claim or action for breach or enforcement of the Deed).

53. The applicant submitted that the 2024 proceedings only concerned the merits of the DCOs. They “did not – and could not – determine jurisdictional facts or questions of statutory power”, including:

54. the validity or legal effect of condition 2 of the 1971 approval;

55. the existing use rights of the cottage;

56. the applicability to the cottage of condition 13 of the 2020 consent; or

57. the lawfulness of any refusal of an application for a BIC.

58. Further, the Deed was submitted by the applicant not to contain:

59. any reference to BICs;

60. any reference to the relevant sections of the EPA Act relating to BICs;

61. any “attempt to bar future judicial review”; or

62. any language broad enough to “release future statutory challenges”.

63. Given that the refusal of the BIC application occurred after the Deed was executed on 22 January 2025, and under a different statutory power, the applicant submitted that the refusal fell “entirely outside the temporal and subject-matter scope of the deed”.

64. Council submitted that the “subject matter” of the 2024 proceedings included the lawfulness of the cottage. The first 2024 proceedings sought an order revoking the December 2023 DCO. To understand the subject-matter of those proceedings, it was necessary to have regard to the December 2023 DCO which required demolition of the cottage because, Council submitted, there was no evidence of the cottage receiving approval and because its use “for habitable purposes” had been unlawful at least since implementation of the 1971 approval. The reasons for the December 2023 DCO further referred, Council said, to correspondence between the applicant and Council in which the applicant made the same assertions in relation to the effect of conditions 2 and 13 as she makes in the summonses filed in the 2025 proceedings.

65. The following evidence was also said to support the submission that the subject matter of the first 2024 proceedings included the lawfulness of the cottage:

66. the statement of facts and contentions in reply filed by the applicant on 31 July 2024 which included statements that the cottage had “an approved use for non-habitable purposes as a condition of the permit obtained in 1971 under BA 263/71” and “retained existing use rights under this approval”; and

67. the affidavit filed by the applicant in support of the notice of motion filed on 5 September 2024 seeking costs for those proceedings in which the applicant stated that the cottage was “legally approved and compliant”.

68. In relation to the second 2024 proceedings, Council submitted that the reasons for the November 2024 DCO demonstrated that the subject matter of those proceedings was an assertion that the cottage was unlawful based on facts which included the following:

69. at all relevant times, consent was required for the construction of a dwelling on the property;

70. no approval could be located for the construction of the cottage in around 1953, or subsequently;

71. use of the cottage as a dwelling had been prohibited since about 1971 pursuant to condition 2 of the 1971 approval; and

72. even if the rest of the cottage had existing use rights, the rear addition did not because it was not constructed until 2019.

73. Council referred to the applicant’s contention that the release which she gave in the Deed only precluded further proceedings in relation to the two DCOs which were directly the subject of the appeals, and did not extend to proceedings related to later administrative decisions, such as Council’s failure to grant a BIC. Council submitted that the Court should not find that the “subject matter” of the 2024 proceedings was limited to the DCOs because if this had been the intention of the parties, they would have expressly provided that the Deed prevented any further litigation in relation to those instruments. There was said to be no reason for the parties to use the expression the “subject matter of the 2024 Proceedings” unless they intended to capture a broader range of possible causes of action which did not directly involve challenges to or enforcement of the two DCOs.

74. Further, the context of the other terms of the Deed was submitted by Council not to favour a narrow construction. The commercial purpose of the Deed could be objectively ascertained by reading the document as a whole, and in particular the reciprocal obligations assumed by the parties which were submitted to extend beyond the DCOs. Clause 2.2 prevented Council from taking any enforcement action, including Class 4 proceedings, in relation to the cottage for so long as the applicant is the owner of the property. This was submitted to be consistent with the commercial intent of the Deed being to resolve the dispute between Council and the applicant about the lawfulness of the cottage on the basis that Council agreed not to take enforcement action in relation to the cottage during the period of the applicant’s ownership. In return, the applicant agreed to refrain from further litigating any claim which she might otherwise have had in asserting the lawfulness of the cottage.

75. Further, Council submitted that it did not need to show that the subject matter of the 2025 proceedings was identical to that of the 2024 proceedings in order to enliven cl 3.1.2 of the Deed. It only needed to show that the subject matter of the latter proceedings “related to” the subject matter of the earlier proceedings. This requirement would be readily satisfied as the concept of the subject matter of the proceeding “relating to” the subject matter of another is broad, and “may encompass many different kinds of relationship, depending on the context”. This was not to suggest that “the mere fact of the two proceedings being concerned with the same property creates a sufficient relationship for the purpose of 3.1.2”. The commercial purpose of the Deed was submitted to suggest that cl 3.1.2 was concerned with a legal, rather than geographical connection. For example, if the applicant brought proceedings to rectify damage to the property caused by Council roadworks, then Council would accept that those proceedings were not proceedings “relating to the subject matter” of the 2024 proceedings. However, in the present case, the 2024 proceedings and the 2025 proceedings were said to have a common underlying legal and factual matrix related to the lawfulness of the cottage, and for this reason they were relevantly “related”.

76. Finally, the fact that the BIC application was made after the execution of the Deed did not, Council submitted, prevent a claim based on the BIC application from being captured by cl 3.1.2 because the definition of “claim” in the Deed includes “present or future” claims, regardless of “whether or not the facts, matters or circumstances giving rise to that claim are known… at the date of this Deed”.

77. For the reasons advanced by Council, I am satisfied that by commencing and maintaining the 2025 proceedings, the applicant has commenced or maintained a claim against Council relating to the subject matter of the 2024 proceedings, in breach of cl 3.1.2 of the Deed, and that the 2025 proceedings are barred by the Deed.

Issue 3 – Whether the 2025 proceedings should otherwise be struck out due to pleading effects

64. Having determined that the 2025 proceedings are barred by the Deed, it is not necessary to decide whether the 2025 proceedings should be struck out due to pleading defects. I will, however, proceed to consider issues 4 and 5 raised by the applicant

Issue 4 – Whether Council’s conduct in assessing and refusing the BIC application amounted to “enforcement action” in breach of cl 2.2 of the Deed and hence repudiated the Deed

65. I have determined that the 2025 proceedings are barred by the Deed. However, I will consider the applicant’s submission that in assessing and refusing the BIC application, Council undertook “enforcement action” under the EPA Act in breach of cl 2.2 of the Deed, and thereby repudiated the Deed by:

66. conducting “unauthorised” inspections inside the cottage, by which the applicant in her affidavit of 5 December 2025 appeared to be referring to inspections conducted in March and May 2025 for the purpose of the building inspection reports issued by Council in those months;

67. directing the removal of internal fixtures, cabinetry and plumbing in those building inspection reports;

68. asserting, by reference to condition 2 and condition 13, that the cottage could not lawfully be used “in any capacity”; and

69. “preparing and issuing a refusal” of the BIC application for “alleged planning non-compliance”.

70. Council submitted that it had taken no steps in relation to the cottage other than to consider the applicant’s BIC application which it was bound to do under s 6.25 of the EPA Act. Council’s consideration of the BIC application was not an enforcement action, but an administrative process in which it was bound to engage. Processing of the BIC application was initiated by the applicant, not Council, and any inspections by Council since and any advice to the applicant regarding the works which would need to be done in order to obtain a BIC, were undertaken for the purpose of assessing the application.

71. For the reasons advanced by Council, I am not persuaded that Council’s conduct in assessing and refusing the BIC application amounted to “enforcement action” within the meaning of the EPA Act and in breach of cl 2.2 of the Deed. Clause 2.2 of the Deed provides that Council is not to “issue any other DCO or take any other enforcement action under the Act”. Clause 1 provides that “Act” means the EPA Act. The Act contains no definition of “enforcement action” or “enforcement”. The Macquarie Dictionary Online defines “enforcement” as “the act or process of enforcing”, and “enforcing” as:

1. to put or keep in force; compel obedience to: to enforce laws; to enforce rules.

2. to obtain (payment, obedience, etc.) by force or compulsion.

3. to impose (a course of action) upon a person.

4. to support (a demand, etc.) by force.

5. to impress or urge (an argument, etc.) forcibly; lay stress upon. [11]

68. I am satisfied that Council’s assessment and refusal of the applicant’s BIC application, according to the ordinary meaning of “enforcement”, did not “compel obedience” to planning laws or regulations, or impose any course of action upon any person. This is so notwithstanding that the applicant was required to complete rectification works in order for the application to be approved, and even if it was implicit in the rejection of the application that Council considered that “the cottage could not lawfully be used ‘in any capacity’”. There was no threat of penalty or other punitive action in the event that the applicant did not complete the rectification works, or because of any implicit assertion that the “cottage could not lawfully be used”. The effect of Council’s refusal of the BIC application was that it was not approved.

69. Part 9 of the EPA Act is concerned with “Implementation and enforcement”. Division 9.1 refers to “Ministerial and other enforcement powers”; Div 9.2 to “Investigative powers of departmental or council officers”; Div 9.3 to “Development control orders” (such as those the subject of the 2024 proceedings); Div 9.4 to “Monitoring and environmental audits”; Div 9.5 to “Civil enforcement proceedings”; and Div 9.6 to “Criminal offences and proceedings”. When cl 2.2 of the Deed provides that Council must not “issue any other DCO or take any other enforcement action under the Act”, it would be understood as referring to the other enforcement actions in Part 9 of the EPA Act where the powers relating to DCOs are also found. The obligations of Council in respect of the assessment of BICs are found in Part 6 of the Act which deals with “Building and subdivision certification”. I do not consider that the assessment of the applicant’s BIC application by Council pursuant to s 6.25 of the EPA Act would constitute an “enforcement action under the Act”.

70. In relation to the applicant’s submission that Council conducted “unauthorised” inspections inside the cottage for the purpose of issuing the building inspection reports related to the BIC application, and that those inspections constituted enforcement, it is correct that Subdiv 2 in Div 9.2 of Part 9 of the EPA Act confers powers of entry and search on investigation officers. Section 9.16(2)(d) provides that an investigation officer may enter a part of premises used for residential purposes “if a building certificate has been sought under this Act and it is necessary to do so to inspect the premises for the purpose of issuing the certificate”. Part 9 deals with “implementation”, as well as “enforcement”. Section 9.15(2)(a) provides that a purpose for which council investigation officers may exercise powers under Div 9.2 is “enabling a council to exercise its functions under this Act”. I do not consider that an exercise of the power of an investigation officer under s 9.16(2)(d) is an “enforcement action”, rather the exercise of a power in relation to the “implementation” of the Act by “enabling” a council to exercise its functions in relation to the issuing of building certificates.

71. Accordingly, I am not persuaded that the inspections carried out by Council for the purpose of issuing the building inspection reports relating to the applicant’s BIC application were enforcement actions under the Act, rather as Council submitted, an implementation of Council’s administrative function in assessing the BIC application. This again conforms with the ordinary meaning of “enforcement”. The inspections were not required to compel obedience by the applicant to a particular course of action, but were the inevitable consequence of the applicant’s application for a BIC.

Issue 5 – Whether the Deed can bar judicial review proceedings

72. Finally, the applicant submitted that private agreements such as the Deed cannot override or displace statutory rights or “judicial review jurisdiction” under planning legislation, citing Menai Business Park Pty Ltd v Liverpool City Council [2005] NSWCA 193. The Court was unable to locate any such case.

73. The applicant also cited Citta Hobart Pty Ltd v Cawthorn (2021) 273 CLR 220 in support of the propositions that “parties cannot contract out of the existence or characterisation of a ‘matter’ amenable to judicial review”, and a “controversy involving questions of legal right or public duty cannot be ousted or waived by private agreement”. Again, the Court was unable to locate the citation “(2021) 273 CLR 220”. Whilst unclear, it may be that the applicant was referring to Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216.

74. In response to the applicant’s submission that the Deed could not be relied upon to displace the Court’s judicial review function, Council submitted that this was not what it was seeking to do. Council submitted that the Deed did not impinge on the Court’s judicial review function, but constrained the applicant’s ability to call upon the Court to exercise that function.

75. I am satisfied that the parties made a bargain under the Deed to resolve both merits proceedings and judicial review proceedings in this Court. Council agreed not to exercise certain statutory powers otherwise available to it under the EPA Act to require demolition of the cottage, and the applicant agreed not to exercise certain legal rights which she might otherwise have had against Council, such as to ask the Court in civil enforcement proceedings to exercise its powers to make declarations relating to the lawfulness of the cottage.

76. The authorities referred to by the applicant do not support the propositions for which they were relied upon. None is a case concerning the enforceability of deeds of release. The citation of Cita Hobart v Cawthorn was incorrect, and if the applicant intended to refer to Citta Hobart v Cawthorn (2022) 276 CLR 216, that was a case about the identification of a constitutional matter, not with whether “a controversy involving questions of legal right or public duty” can be “ousted or waived by private agreement”.

Conclusion

77. I have concluded that the two Class 4 judicial review proceedings which the applicant commenced by her summonses filed on 24 November 2025 are barred by cl 3.1.2 of the Deed of Settlement and Release between the applicant and Council dated 22 January 2025.

Orders

78. The Court makes the following orders:

79. Proceedings 2025/00350820 are dismissed.

80. Proceedings 2025/00349222 are dismissed.

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Endnotes

Notice of Permission for Development Involving the Use of Land or of Buildings Already Erected BA 263/71 given under the Town and Planning (General Interim Development) Ordinance (1945) (NSW) and the Local Government Act 1919 (NSW) Pt XIIA.

The applicant does not presently seek to act on, and Council does not seek to enforce, either condition 2 of the 1971 approval or condition 13 of the 2020 development consent.

(1994) 84 LGERA 199.

(1999) 103 LGERA 312; [1999] NSWLEC 152.

(2008) 73 NSWLR 196; [2008] NSWCA 338.

(2001) 112 LGERA 403; [2001] NSWLEC 5.

(1999) 103 LGERA 312; [1999] NSWLEC 152.

[2010] NSWSC 1168.

[2011] NSWLEC 49.

[2015] NSWLEC 42.

Macquarie Dictionary, online ed.