Memel Holdings Pty Ltd v Pittwater Council

The applicant does not argue against an order for costs in favour of the respondent but it makes an application pursuant to s 6(1AA) of the Suitors' Fund Act 1951 for an indemnity certificate in respect of the appeal.

Apart from the formal matters outlined above, the applicant asks the Court to note the following matters:- (1) The Court file contains a draft order with handwritten amendments.

(2) The Court file contains a form of order signed by the Registrar. The form of order is not sealed.

(3) The Court file contains a letter dated 28 September 2000 requesting that the matter be relisted to seek to limit the scope of the appeal to the consideration of the SEPP 1 objectives and not for the whole of the matter to be remitted for a rehearing.

The applicant's notice of motion was filed on 10 October 2000 returnable on 19 October 2000.

When the matter was referred to me as List Judge on 20 October 2000 the respondent was given leave to rely on its notice of motion filed on 19 October 2000 and the hearing of the two notices of motion proceeded simultaneously.

Part 15 Rule 4 and Rule 9 of the Land and Environment Court Rules

Part 15 r 4 provides that the Registrar is to sign and file a minute of a final order disposing of proceedings, and is to seal the minute with the seal of the Court.

This rule is important for the purposes of Pt 15 r 9 which relevantly provides as follows:- 9. The Court, may, on terms, set aside or vary an order in any of the following cases - (a) …

(b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4;

It is contended by the respondent that the notice of motion for setting aside in this case was not filed before the signing and filing of the minute of the order under r 4.

There is no evidence to show when the Registrar signed the minute of the order in the file. The respondent submits that because the minute is signed it must be deemed to have been filed and that accordingly, the opportunity to move the Court pursuant to r 9 has been lost. In any event, the Court made the orders in a formal manner when it delivered judgment on 27 September 2000.

Contrary to the respondent's submission, Mr Graham QC submits on behalf of the applicant that the Court is entitled to infer that the notice of motion was filed before the order was signed. The respondent was clearly given notice of the intention to file a notice of motion by the applicant at the earliest opportunity, but in any event, the Court may dispense with compliance with any requirements of the rules under Pt 1 r 5 or exercise its inherent power as a superior court of record to vary the orders already made.

In the circumstances of this case it is not necessary to resolve the apparent dichotomy between the provisions of Pt 15 r 9(b) and Pt 15 r 4 as the Court proposes to exercise its discretion to allow the applicant's notice of motion to proceed. It is indeed unfortunate that the applicant followed what is regrettably a common practice of merely writing a letter to the Court to foreshadow an application rather than right away filing a notice of motion to place the application on a formal footing.

In the absence of formal proof as to the settling and signing of the minute of the order which is now in the file, the Court is not able to determine whether r 9(b) was complied with. Given the notice which the applicant simultaneously gave to the Court and to the respondent that it proposed to move in accordance with the notice of motion, I am prepared in any event to act pursuant to Pt 1 r 5(2) and dispense with the need for compliance with Pt 15.

Moreover, the Court has an inherent power to reopen its judgment or orders where there is some matter calling for review ( Smith v NSW Bar Association (1992) 176 CLR 256 at 265) or where the interests of justice so require (Autodesk Inc & Anor v Dyason & Ors (No. 2) (1993) 176 CLR 300 at 322).

Irrespective of the power upon which the Court relies, it is proposed, in the interests of justice, to exercise the Court's discretion in favour of the applicant to allow the notice of motion to be argued. The applicant contends that considerable costs savings will follow if the application to vary the orders is successful.

I am not aware of any explanation as to why the procedure in the Land and Environment Court pursuant to Pt 15 of the Land and Environment Court Rules is in different terms to the provisions of Pt 40 and Pt 41 of the Supreme Court Rules. Fortunately, it is not necessary for me to decide on this occasion why a distinction exists between r 4 in Pt 15 which requires the Registrar to seal a minute of a final order with the seal of the Court and r 9 which contemplates only that the minute be signed and filed.

Given the overriding effect of Pt 1 r 5(2) and the inherent jurisdiction of the Court, no injustice is likely to arise as a consequence of a strict application of Pt 15. However, the distinction between the requirement to seal a minute of the orders after signing and the mere provision for signing creates practical difficulties of proof which may, if the occasion arises, require evidence from the Registrar or call upon the Court to take judicial notice of the procedures within its own administration.

Although there is a signed minute in the file in the present case, it is difficult to understand why the seal of the Court would not in ordinary circumstances be affixed contemporaneously. As I have said, it is not necessary to make a decision in this case but it is appropriate to draw attention to the anomaly.

Whether the issues should be confined in the remitted hearing

It was decided in the appeal proceedings that the exercise of the dispensing power pursuant to SEPP 1 by the Senior Commissioner had miscarried and that it was appropriate for the appeal to be allowed and the matter redetermined in a way which takes account of the reasons published on 27 September 2000.

One way of determining an application for development consent in circumstances where an objection has been lodged pursuant to SEPP 1 is to follow a two stage process. In the first instance, the consent authority might determine whether the grounds of objection to the development standard have been established. If the objection is supported then a separate consideration as to whether the development application is to be determined by the grant of consent could follow.

From a practical point of view separating the process into two stages is superficially appealing.

However, in my view, making a strict delineation between the consideration of the objection pursuant to SEPP 1 and the determination of the development consent itself could lead to error.

The aims and objectives in SEPP 1 are set out in cl 3 of the policy as follows:- This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

Clause 6 of the policy refers to a "… development application … supported by a written objection that compliance with [the] development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of [the] objection".

Clause 7 is important as follows:- Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.

The policy clearly contemplates that the processes of dealing with the objection to the development standard and the determination of the development applications are blended.

Clause 7 requires that the granting of consent be consistent with the objectives set out in cl 3 and cl 6 refers to the development application being "supported" by the written objection.

In the process of dealing with the objection itself the consent authority, and the Court, is obliged to identify the underlying object or purpose of the standard. The identification of the underlying purpose very often involves an inquiry about the particular zoning and other provisions in the applicable environmental planning instruments that apply to the subject land.

In my opinion, the consideration of an objection made pursuant to SEPP 1 cannot be considered in isolation from the whole circumstances of the development application. The determination of the question as to whether development consent should be granted must have regard to the aims and objectives of the development standard.

In the present case there is a real prospect that when the matter is referred back to the Senior Commissioner he could reach a different view after considering the SEPP 1 objection in the light of the objectives which were not specifically considered on the last occasion.

Even if the objection is upheld, the development application may nevertheless be determined by refusal of consent notwithstanding the opinion that it is not necessary to strictly comply with the development standard.

Ultimately, as a matter of practicality, it might be decided, preferably although not necessarily, with the consent of the parties that it is not necessary to hear the whole or part of the evidence a second time. That is not a matter which I as a Judge hearing the appeal pursuant to s 56A of the Land and Environment Court Act 1979 should decide as clearly I do not have the necessary material before me to enable me to exercise such a discretion.

Mr Graham made a submission that order 3 requiring the proceedings to be remitted for rehearing was not an order which reflected the purpose of s 56A, in particular subs (2)(a), which directs the Court to remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court. Mr Graham makes the submission notwithstanding the unfettered discretion in subs (2)(b) to make such other order in relation to the appeal as seems fit.

The determination by the Senior Commissioner in this case was found to be flawed in a fundamental respect which infected the whole decision. The purpose of order 3 made in the above terms was to ensure that there could be no misunderstanding as to the extent to which the error affected the whole determination by the Commissioner.

The applicant's notice of motion only serves to confirm that the apprehension of the Court reflected in the specific terms of the order was justified. They recognise the inextricable link between the consideration of the objection made pursuant to SEPP 1 and the final determination of the development application.

Although the Court has rejected the respondent's application to strike out the applicant's notice of motion summarily, it nevertheless has decided that the orders now proposed by the applicant are misconceived and inappropriate. The appropriate order is for both notices of motion to be dismissed.

The respondent is entitled to an order that the applicant pay its costs in relation to the appeal and the applicant's notice of motion. The applicant, as the respondent to the appeal, is granted an indemnity certificate pursuant to s 6(1AA) of the Suitors' Fund Act 1951. In the circumstances, it is appropriate there be no order as to costs in respect of the respondent's notice of motion.

The formal orders of the Court are:- 1. The applicant's notice of motion is dismissed.

3. The applicant is ordered to pay the costs of the respondent in relation to the s 56A appeal and the applicant's notice of motion.

4. The applicant, as respondent to the appeal, is granted an indemnity certificate pursuant to s 6(1AA) of the Suitors' Fund Act 1951.

5. No order as to costs in relation to the respondent's notice of motion.

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