Presrod Pty Ltd v Wollongong City Council

Civil Procedure Act 2005, ss 4, 56 Environmental Planning and Assessment Act 1979, ss 79C, 80, 80A, 97 Interpretation Act 1987, s 49(1) LEGISLATION CITED: Land and Environment Court Act 1979 (NSW), s 34 Local Government Act 1993, ss 377(1), 378(2) Uniform Civil Procedure Rules 2005 Wollongong City Centre Local Environmental Plan 2007 Wollongong Local Environmental Plan 2009

Across Australia Finance v Bassenger [2008] NSWSC 799 AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 Bailey v Marinoff (1971) 125 CLR 529 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Chown v Parrott (1863) 14 CB NS 74; 143 ER 662 Clayton Jacobson and Lee Anne McMillan v Ballina Shire Council [2006] NSWLEC 114 DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 Donnellan v Watson (1990) 21 NSWLR 335 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 CASES CITED: Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193 Little v Spreadbury [1910] 2 KB 658 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262 Pittwater Council v Brown Bros Waste Contractors Pty Ltd [2009] NSWLEC 50 Prestwich v Poley (1865) 18 CB NS 806; 144 ER 662 Terrace Tower Holdings Pty Ltd v Surherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 Thompson v Howley [1977] 1 NZLR 16 Waugh v H B Clifford and Sons Ltd [1982] Ch 374 Wandel & Goltermann GMBH & Co v Wandel Global Services Pty Ltd [2002] FCA 1609 Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296

APPLICANT I J Hemmings (barrister) SOLICITORS Wilshire Webb Staunton Beattie Lawyers LEGAL REPRESENTATIVES:

RESPONDENT S A Duggan (barrister) SOLICITORS Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10456 of 2009 PRESROD PTY LTD v WOLLONGONG CITY COUNCIL

1 HIS HONOUR: When this Court made orders on 23 October 2009, allowing an appeal by Presrod Pty Ltd (Presrod) and granting consent to develop its site at 39 Smith Street, Wollongong, Presrod was entitled to expect that its litigation with Wollongong City Council (the Council) had concluded. That expectation was founded upon the fact that the orders made by the Court were consequent upon and accorded with an agreement that was signed by the solicitor for each party, following a statutory conciliation conference conducted before a Commissioner of the Court. 2 Presrod's expectation has not been realised. Notwithstanding the consensual foundation for the orders made on 23 October 2009, the Council now applies by notice of motion to have those orders set aside. It does so, not by seeking to impugn any conduct of Presrod in or relating to the proceedings, nor by identifying any irregularity in the processes of the Court. Rather, it seeks to found its application upon its own conduct, described as "administrative oversight." 3 The Council says that the instruction given to its solicitor to sign the agreement which founded the orders was not given by an officer of the Council with authority to give that instruction. This, so it seems, is because a condition precedent to the exercise of the delegation which the officer otherwise held had not been met at the time at which the settlement instruction was given. The fact that the condition had not been met was not discovered until some six weeks after the agreement had been signed and orders made. 4 It is not suggested that Presrod was aware at the time at which agreement was reached, and orders were made, that there was any impairment to the exercise of delegated authority by the Council officer. Nor is it suggested that Presrod was aware of any limitation upon the instructions to the solicitor who signed the agreement on behalf of the Council. 5 Whether these circumstances successfully found the Council's application to set aside the orders made on 23 October 2009 now calls for determination. In making this determination I should record that the facts and events to which I refer are not in contest between the parties. They emerge from unchallenged evidence adduced by the parties at the hearing before me. Issues 6 The Council founds its motion to set aside the orders made on 23 October 2009 upon Pt 36 r 36.15 of the Uniform Civil Procedure Rules 2005 (UCPR). It expressly disavows reliance upon any 'inherent' or implied jurisdiction of this Court. Subrule (1) of UCPR 36.15 relevantly provides as follows - " 36.15 (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith." 7 At a level of generality, the Council's application requires two issues to be addressed. The first is whether the order was made "irregularly" or "illegally", there being no contention on the part of the Council that the order was made "against good faith". If that issue is determined in the affirmative, it is then necessary to determine whether "sufficient cause" has been shown so as to warrant the orders being set aside in the exercise of the Court's discretion. 8 Each of these general issues will involve a consideration of a number of sub-issues. These arise from the particular facts attending the conduct of the appeal, the circumstances relevant to the signing of the agreement between the parties and the delegation to the Council officer providing instructions to the (then) solicitor retained by the Council. It is to the facts relevant to these matters that I now turn.

The development application 9 On 10 March 2008, architects acting on behalf of Presrod lodged a development application with the Council relating to land and premises known as 39 Smith Street, Wollongong. Erected on that land was a building used as serviced apartments and known as "Belmore Apartments". The development application sought consent to carry out alterations and additions to the existing building and also sought consent to a change of use so as to permit the altered building to provide hotel accommodation. 10 Following initial public notification of the development application, a number of submissions by way of objection to it were received by the Council. As a consequence of these submissions, Presrod amended its development application. The amended application was again publicly notified by the Council. A reduced number of submissions by way of objection were received. 11 The Council retained an external consultant to assess the development application and provide a report for consideration by it. That consultant was Mr Mead of Planning Ingenuity Pty Ltd. 12 Mr Mead's assessment report, which recommended refusal of the development application, was considered by the Council on 22 April 2009. It accepted Mr Mead's recommendation and on that same day a notice of determination refusing the application was sent to Presrod. Those who had made submissions to the Council were also informed that the application had been refused. 13 It was the refusal by the Council of Presrod's development application that founded its appeal to the Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act). Presrod's appeal to the Court was filed on 7 July 2009. Appeal to the Court 14 The Class 1 application filed by Presrod was served upon the Council on or about 8 July 2009. A notice of appearance was entered on behalf of the Council by its (then) solicitor on 28 July 2009. 15 Following the filing and service of that appearance, there were discussions between the solicitors acting for each party as to the course which the proceedings would take. These discussions resulted in a draft set of directions, prepared by the Council's (then) solicitor, proposing as a first step, the listing of the appeal "for a preliminary conference under s 34 of the Land and Environment Court Act 1979 on 25 September 2009". A direction in those terms was made by the Acting Registrar on 17 August 2009. 16 The Council, through its solicitor, had by that time filed and served its Statement of Facts and Contentions, as it was required to do in accordance with the Court's Practice Notes for Class 1 development appeals. That document contained some nine separate contentions for refusal of the development application. Contention number 9 stated that the proposal was "not considered to be in the public interest". Particulars of that contention included references to "issues raised in public submissions." The Council's Statement of Facts and Contentions was signed by Pier Panozzo, described beneath his signature to the Statement as "Acting Manager City Centre Major Development Wollongong City Council". 17 Following the direction made by the Acting Registrar on 17 August, further discussions took place between the solicitors for the parties concerning the conduct of the section 34 conference. On two occasions Presrod's solicitor enquired of the Council's (then) solicitor as to whether it was intended to have "resident objectors" attend that conference. On each occasion he was told by that solicitor that no resident objectors would be attending. 18 In response to the Council's Statement of Facts and Contentions, Presrod took a number of steps to address matters raised in it. Amended architectural plans were prepared by its architects; an amended landscape concept plan was prepared and a statement directed to traffic issues was also prepared. In addition, both a construction management plan and an operational management plan were prepared. All of these documents were forwarded to the Council's (then) solicitor on 17 September, accompanied by a statement indicating how this material was seen to address the Council's contentions. 19 On 24 September 2009, the Council's (then) solicitor provided to Presrod's solicitor a copy of the opening statement that he intended to make at the section 34 conference on the following day. The focus of the statement was to indicate the Council's response to the amended plans and additional material that had been provided on 17 September. The statement indicated that "the amended plans and additional information … completely resolve some of the Council's contentions" and while some issues remained, they "have been substantially narrowed." 20 The section 34 conference was held on 25 September before a Commissioner of the Court. It was attended by legal representatives and experts retained on behalf of Presrod, while the Council was represented by its solicitor, accompanied by Mr Panozzo, Mr Mead, a traffic engineer in the employ of the Council, as well as the Council's landscape architect. 21 The Council's opening statement, in the form already provided to Presrod's solicitor, was read and was followed by a discussion among those present of the outstanding issues that the Council had identified. The Commissioner participated in those discussions, which included an enquiry by him as to whether the concerns of the residents had been addressed. 22 It is accepted by both parties that copies of submissions received by the Council from local residents were provided to the Commissioner at the conference. Mr Mead informed the Commissioner that the amended plans prepared for Presrod, coupled with additional conditions of consent then proposed, would address "the concerns of the objectors to the proposal." Mr Panozzo acknowledges having heard Mr Mead make that statement and states that such "advice" satisfied him that the concerns of residents had been appropriately addressed. 23 Ultimately, it was indicated to the Commissioner that, subject to final drafting to be undertaken, it was likely that agreement to resolve the matter would be reached. Indeed, it is the evidence of Mr Panozzo that at the conclusion of the conference - "the parties agreed that the proceedings could be resolved by orders granting development consent to the DA subject to conditions agreed by the parties." 24 On 22 October, an email was forwarded by the Council's (then) solicitor to the Court, for the attention of the Commissioner who had presided at the conference on 25 September. It was an email forwarded with the consent of Presrod's solicitor. It included the following statement - "Following on from discussions at the section 34 conference held on site on 25 September 2009, attached is an agreement signed by both the parties for your consideration and the making of orders under section 34(3)(a) of the Land and Environment Court Act 1979. The parties accordingly seek a decision in those terms." 25 The agreement attached to that email is signed by the solicitor for each party. Paragraph 1 of the agreement is in the following terms - 1. "The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions.)" 26 The terms of the decision sought are set out in paragraph 2 of the agreement. Paragraph 3 is then expressed as follows - "3. Pursuant to section 34(3)(a) the parties request the Commissioner dispose [sic] of these proceedings in accordance with the terms of the decision set out in paragraph 2 above." 27 In response to that request, there are two sets of orders made by the Court on 23 October 2009. The first is expressed as follows - "1. The Court notes that the parties or their representatives have reached agreement at or after a conciliation conference held pursuant to s 34 of the Land and Environment Court Act 1979, presided over by Commissioner Hussey, as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions) as set out in the document annexed hereto. By consent, the Court makes orders in accordance with the document annexed hereto." 28 The second set of orders also made on that day, being those identified as annexed to the first set of orders (also being the 'decision' sought in paragraph 2 of the agreement signed by the solicitors), are in the following terms (omitting the conditions in Annexure A to those orders) - "Pursuant to section 34(3) the following orders are made: 1. The appeal is upheld. 2. Development Application No. DA-2008/358 dated 10 May 2006 for alterations and additions to an existing building including the addition of a further storey, construction of basement and grade level parking at the rear of the site, modifications to the external features and roof of the building, associated landscaping, site works and drainage and change of use to hotel accommodation at Lot 31 in DP 747755, 39 Smith Street, Wollongong is approved subject to the conditions contained in Annexure 'A'." 29 These latter orders were entered and sealed by the Acting Registrar of the Court on 4 November 2009. It is those orders which the Council now seeks to set aside. Conciliation conferences: the central importance of s 34 30 The holding of conciliation conferences is integral to the process of resolving proceedings brought in Class 1 of this Court's jurisdiction. The importance of them is recognised by the Practice Notes promulgated by the Court for the conduct of Class 1 proceedings. In substance, the Practice Notes require that a conciliation conference be held in all such proceedings unless the parties in a particular case satisfy the Court of good reason why such a conference should not be held. Quite apart from its recognition in the Land and Environment Court Act 1979 (the Court Act) as an available mechanism to resolve proceedings, the conduct of such a conference is seen as a means of facilitating the "just, quick and cheap" resolution of the issues in the proceedings, conformably with s 56 of the Civil Procedure Act 2005. 31 Section 34 of the Court Act relevantly provides as follows: " 34 Conciliation conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court: (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, … . (1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference. (2) A conciliation conference is to be presided over by a single Commissioner. (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner: (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. (4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and: … (b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings: (i) following a hearing, whether held forthwith or later, or (ii) with the consent of the parties, on the basis of what has occurred at the conciliation conference. … (6) If satisfied that there is a good reason to do so, the Commissioner may adjourn the conciliation conference to a time and place fixed in consultation with the Registrar. (7) Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3) or (4)(b) has and may exercise the functions of the Court. (8) The decision of the Commissioner under subsection (3) or (4)(b) is taken to be the decision of the Court. … (10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement." 32 While subsection (11) of s 34 denies the admissibility in any proceedings of what is said at a conciliation conference or of any document prepared for the purpose of such a conference, that restriction is overcome if the parties to the conference consent (s 34(12)). That consent has been forthcoming for the purpose of considering and determining the present application by the Council. 33 There are a number of observations to be made about s 34, relevant to the present application. First is the obligation imposed upon the Commissioner by subsection (3)(a) to dispose of the proceedings in accordance with the decision which is agreed between the parties "at or after" the conciliation conference conducted before that Commissioner. Subject to being satisfied that the agreed decision is one open to the Court to make "in the proper exercise of its functions", no discretion is afforded to the Commissioner to refuse the making of an order that is sought by the parties' agreement.

34 The second matter to be noticed is the obligation cast upon parties by subsection (1A). It is expressed to be an obligation "to participate, in good faith, in the conciliation conference." I would have thought that the subsection imposes an obligation to participate with a genuine preparedness to conciliate the dispute. That obligation, in turn, necessarily requires that the participants have the authority to bind those they represent by any action taken or position agreed at the conference. 35 Subsections (3) and (6) clearly contemplate that the process of conciliation commenced at the conference may be ongoing. Reference in subsection (3) to agreement being reached "at or after a conciliation conference" and the power of a presiding Commissioner to adjourn a conciliation conference as provided in subsection (6) makes the position clear. That is what occurred in the present case. Agreement in principle was reached on 25 September but to allow detail to be resolved, the conference was adjourned by the Commissioner, initially until 19 October. As I have earlier recorded, the agreement signed by each solicitor was provided to the Court by the Council's solicitor on 22 October, resulting in orders being made the following day. Events following the making of orders 36 In my earlier description of events following lodgement of Presrod's development application with the Council, I referred to the fact that on each occasion upon which the Presrod development was publicly notified it attracted a number of submissions by way of objection. These submissions indicated a concern by residents who lived in the vicinity of the site about the impact of both the addition of a storey to the existing building and also its proposed change of use. 37 On 3 December 2009, a person who had objected to Presrod's development application spoke with Mr Panozzo about the orders made by the Court on 23 October 2009. Mr Panozzo now says that following the conversation, "it became apparent" that those who had made submissions to the Council in respect of the development application had not been notified of Presrod's appeal to the Court. It was not until 14 January 2010 that the Council notified adjoining land owners and objectors of the terms of the orders which the Court had made when determining Presrod's appeal. 38 Meantime, on 9 December 2009 complaint had been made to the Council on behalf of the proprietors of strata units located in a building adjoining Presrod's site. The complaint concerned the absence of notice to them that Presrod had appealed to the Court and that the Council had agreed to the making of orders granting development consent. It is unnecessary to recite all of the events that occurred thereafter. It is sufficient to record that meetings were subsequently held between representatives of the Council and representatives of those who objected to Presrod's development. At such meeting or meetings an explanation of the amended plans and conditions of consent that are the subject of the Court's orders was provided by Council staff. 39 At the instance of the Council, a meeting was arranged in March 2010 involving Mr Panozzo together with other Council officers, representatives of Presrod and representatives of objectors. The evidence indicates that this was a "without prejudice" meeting, apparently intended to explore whether Presrod was prepared to reconsider the development for which it had obtained consent from the Court, with a view to meeting concerns expressed by objectors. The present application by the Council makes it apparent that Presrod did not accede to any such request. 40 It was not until 4 May 2010 that the Council filed its notice of motion seeking to set aside the orders made on 23 October 2009. The evidence does not reveal when it was that the Council first advised Presrod of its intention to take such a course. However, it was not until the Council's present notice of motion was filed that a formal request was made to Presrod's solicitors to agree to the orders of 23 October being set aside (cf UCPR 36.15(2)). No such agreement has been forthcoming. The role of Mr Panozzo 41 In his evidence by way of affidavit in support of the present notice of motion, Mr Panozzo says that he was the officer of the Council responsible for the assessment of Presrod's development application. He was also responsible to oversee the preparation of the report to the Council by Mr Mead. In undertaking these tasks on behalf of the Council, he described his position as "Manager, City Centre Major Development", a position that he had held for a period of two years. (The evidence does not explain why he is described in the Council's Statement of Facts and Contentions as "acting" in that capacity: see [16].) 42 Mr Panozzo states that he was "present and representing Council at the conciliation conference" held on 25 September 2009. As I have earlier indicated, he was, in fact, present at that conference with the Council's (then) solicitor, who appeared for and represented the Council at the conference. Further, it was in the context of his presence at that conference that Mr Panozzo made the statement, earlier recorded at [23], to the effect that agreement was then reached to resolve the proceedings upon conditions of development consent to be settled between the parties. 43 Whether Mr Panozzo saw the final form of the agreement signed by the solicitor for each party is not made clear by the evidence. He does state that he was on leave between 19 and 30 October 2009. In his absence, Ms Anne Starr was appointed to act in the position of "Manager, City Centre Major Development". Mr Panozzo further states that before commencing his leave he left a "status sheet" for Ms Starr in respect of the Presrod appeal. The evidence reveals that in his absence, Ms Starr instructed the Council's (then) solicitor that the terms of the agreement settled between solicitors "were acceptable to Council" and that the solicitor should sign the agreement as the Council's legal representative. The delegation of Council's functions 44 By resolution dated 25 March 2008, the Council delegated to its General Manager "all of the delegable functions of the Council", save for those which s 377(1) of the Local Government Act 1993 expressly excluded from any such delegation. The delegation of these functions to the General Manager was expressed in the resolution to be "subject to any policies or procedures that may be determined by Council from time to time." It is accepted by the parties that the functions so delegated included functions of the Council under the EPA Act. 45 Section 378(2) of the Local Government Act authorises the general manager of a council to "sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council)." On 3 July 2009, the General Manager of the Council exercised this power of sub-delegation by delegating a number of specified functions to the holder of nominated "employee positions" within the Council (cf Interpretation Act 1987, s 49(1)). Among the functions delegated to the employee position of "City Centre Major Development Manager" was a function identified by the reference "CP 35". The function so identified was expressed as follows: "Reach agreement, on behalf of the Council, during a conciliation conference with the Applicant in a Class 1 merit review appeal, pursuant to section 34(3) of the Land and Environment Court Act 1979 (NSW)." The Council's notification policy 46 On 25 September 2006, the Council had adopted a policy entitled "Development Assessment and Compliance Notification Policy" (the notification policy), a purpose of which was to outline the requirements "for notification for various types of development." Section 9.3 of that policy states: " 9.3 NSW Land and Environment Court Appeals In the event of an application being refused, either on its merits or because the application is inadequate or incomplete and is subsequently subject to an appeal to the Land and Environment Court, persons who made submissions will be notified of the appeal." 47 The notification policy is said to be a policy which qualifies the delegation given to the General Manager on 25 March 2008 and therefore qualifies his sub-delegation to the holder of the office which Mr Panozzo held. Failure to have notified those persons who made submissions to the Council following notification of Presrod's development application has the consequence, so the Council contends, that it was not open either to Mr Panozzo or Ms Starr to instruct the Council's solicitor to sign the agreement consenting to the orders made on 23 October 2009. The failure to give this notification is described by Mr Panozzo as "an administrative oversight". 48 The Council does not assert that either at the conciliation conference or at the time of signing the agreement that founded the orders made on 23 October 2009, its (then) solicitor was aware of the "administrative oversight" to which Mr Panozzo refers. Moreover, Mr Panozzo states that when attending the conciliation conference he believed he had and was exercising function CP35 delegated to his employee position, namely to reach agreement pursuant to s 34(3) of the Court Act. Setting aside orders: general principles 49 As I have earlier identified, the orders made by the Court on 23 October 2009, granting consent to Presrod's development application in the form amended at the conciliation conference, were orders sealed and entered on 4 November 2009. In the language of the decided cases, they were then "perfected orders". 50 The finality of perfected judgments is an important element in the administration of justice. As the High Court observed in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34]: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." 51 That observation was embraced and applied by the plurality in Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15]. In that case their Honours added (at [16]): " … the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible." 52 Those more recent cases reflect the oft quoted statement by Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 where his Honour said (at 530): "Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed." 53 The finality of a decision made in this Court finds statutory recognition in s 56 of the Court Act. By that section a decision of the Court is expressed to be "final and conclusive", subject to the rights of appeal for which the Court Act provides. As Lloyd J observed when considering that section in Pittwater Council v Brown Bros Waste Contractors Pty Ltd [2009] NSW LEC 50 at [1]: "The principle of finality dictates that once proceedings, in which all the concerned parties have participated, have concluded in a judgment, they cannot be re-opened, subject only to the possibility of appeal as allowed by the Act." 54 In that case, his Honour was considering an application made under UCPR 36.16 to vary a time limit for compliance with orders that had been made and entered by consent. His Honour determined that the rule had no application in that case. In so determining, he said this (at [25]): "Apart from accidental slip or fraud, the power of the court under the rules … to set aside or vary any judgment or order, can only apply to interlocutory, conditional or procedural orders and not to any final orders. This is because s 56 of the Land and Environment Court Act states that, except in the case of an appeal, ' a decision of the court shall be final and conclusive'. A ' decision' , in my opinion, means a final judgment or order. A rule of the court cannot be used to alter the final decision or to vary its terms - there must be finality in litigation to ensure public confidence in the administration of justice." 55 The only qualification that I would respectfully express to his Honour's observations in that passage concerns his reference to a "rule of the court" not availing an application "to alter the final decision" which is said to be final pursuant to s 56 of the Court Act. It is unnecessary, in the present context, to focus upon UCPR 36.16. However, the UCPR are rules which are given statutory force by the Civil Procedure Act. The Civil Procedure Act applies to civil proceedings in this Court: Civil Procedure Act, s 4. 56 It seems to me, therefore, that, contrary to what his Honour may be taken to be indicating, UCPR 36.15 is capable of affording power to the Court to set aside a judgment or order if the circumstances identified for operation of the rule are established. The language of the rule does not appear to restrict its application to interlocutory orders and it applies, in terms, to a judgment that has been "entered". Moreover, consideration by the Court of Appeal of UCPR 36.15 or its equivalent elsewhere expressed, has not indicated that it is subject to the limitation suggested by his Honour (see, for example, Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193; Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262). 57 Subject to the qualifications just expressed, the emphasis given to the significance of finality in litigation as a foundation for public confidence in the administration of justice reflects the context in which the exceptional provisions of UCPR 36.15 are to be considered. It is the application of that rule to the circumstances of the present case that I now turn. Orders entered irregularly or illegally? 58 In order to engage the provisions of UCPR 36.15 in a way that results in the orders made on 23 October 2009 being set aside, it must first be established that those orders were made "irregularly" or "illegally". Unless either of those matters is established, this Court, being a statutory court, has no wider power upon which to determine that the orders should be set aside (DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226). A general appeal to the "interests of justice" cannot be invoked when determining whether there was irregularity or illegality attending the making of the orders in question (AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368). Invocation of such a broad approach may be inferred from the Council's written submissions in support of the motion before me although its oral submissions were appropriately more concise and confined. 59 The submissions advanced on behalf of the Council did not separately address the concepts of irregularity and illegality, as those concepts applied to the making of the orders in question. Its submission was that the orders made "were irregular or illegal".

60 The steps in the Council's argument may be summarised as follows: (i) when Mr Panozzo attended the section 34 conference on 25 September, he did so as a delegate of the Council; (ii) his capacity to do any act which bound the Council depended upon the terms in which the functions of the Council were delegated to him; (iii) having only those functions which were the subject of sub-delegation from the General Manager, the exercise of any function was subject to the same limitation as that which applied to the General Manager's delegations; (iv) the notification policy was a "policy" of the Council to which the exercise of delegated power was subject; (v) as those who had made submissions to the Council in respect of Presrod's development application were not notified of that company's appeal to the Court, in accordance with section 9.3 of the policy, the condition precedent to the exercise of any delegated authority either by Mr Panozzo or Ms Starr, as holders of the employee position of City Centre Major Development Manager at relevant times, had not been satisfied; (vi) the 'agreement' reached at or after the section 34 conference was therefore not an agreement that could lawfully be entered into on behalf of the Council by either Council officer; (vii) as the 'agreement' was not lawfully entered into on behalf of the Council, the orders made by the Commissioner consequent upon that 'agreement' were not orders that he could lawfully make; (viii) by reference to s 34(3) of the Court Act, the 'decision' which the Commissioner was enjoined to make in accordance with an agreement reached between the parties was required to be one "that the Court could have made in the proper exercise of its functions"; (ix) as the 'decision' reflected in the orders made on 23 October 2009 gave effect to an 'agreement' not lawfully made by the Council, it was not a decision that the Court could have made "in the proper exercise of its functions". 61 There are a number of difficulties with these submissions. First, I do not agree that the provisions of subsection (3) of s 34 of the Court Act constrain a Commissioner's decision in the manner suggested by paragraphs (viii) and (ix) of the Council's submissions as I have summarised them. The requirement that the decision sought by agreement of the parties be one that "the Court could make in the proper exercise of its functions" is not a requirement directed to the legal capacity of the parties to have reached agreement. The fact that an agreement has purportedly been reached is the basis upon which the decision of the Commissioner is to be made. 62 The limitation expressed in subsection (3) to a decision that the Court could make "in the proper exercise of its functions" is a limitation inserted in the subsection to ensure that the decision sought by agreement is one which, having regard to its terms, is sanctioned by the statute which founds the Class 1, 2 or 3 proceedings that are being determined. By way of example, in the case of a Class 1 appeal brought pursuant to s 97 of the EPA Act, a Commissioner being requested to make an order by agreement reached pursuant to s 34(3) that development consent be granted, would need to be satisfied that the development is one to which, as a matter of power, the Court could grant consent and that the agreed conditions of consent are conditions of a kind sanctioned by ss 80 or 80A of the EPA Act. 63 The effect of the submission made in this context by the Council is that for a decision of the Court to be made "in the proper exercise of its functions", it must be one made conformably with a lawfully binding agreement entered into between or among the parties to the proceedings. Such a limitation would, in turn, require that before making an order, the Commissioner conducting the section 34 conference would be required to know the circumstances in which the agreement had been negotiated and either the capacity of the signatories to any agreement in writing to bind a party or the capacity of representatives at the conference purporting to bind the parties to the agreement for orders sought. A requirement of that kind reflects neither the text nor the purpose of the subsection. I therefore reject the Council's submission that the decision made on 23 October 2009 was not one that the Court could make "in the proper exercise of its functions".

An agreement to resolve legal proceedings 64 There is a more fundamental difficulty which the Council's submissions do not confront. It is the circumstance that agreement was reached between solicitors, acting for Presrod and the Council respectively, to resolve legal proceedings between the parties, being Presrod's Class 1 application to the Court. 65 Clearly, there will be many circumstances in which the purported exercise of power by the delegate of a Council will depend for its legality upon strict adherence to the terms in which the power or function is delegated. Where, for example, the function of a Council to determine a development application is delegated to an employee and the terms of that delegation require that certain conditions be satisfied before the delegated function can be exercised, a consent granted by the delegate, absent fulfilment of those conditions, will be an invalid exercise of power. The purported consent will be a nullity (Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296). 66 I will assume that the purported agreement by Mr Panozzo and Ms Starr to allow Presrod's development appeal to be determined by the granting of conditional consent at or following the conciliation conference was an agreement which, on their part, was outside the terms of the delegation to the employee position which at critical times they each occupied. This assumption is made on the basis that notification in accordance with section 9.3 of the notification policy was required as a pre-requisite to the exercise of the function by reason of the limitation upon the delegation to the General Manager. 67 Making the assumption that there was no agreement lawfully entered into by them on behalf of the Council, as was submitted to be the case (T12.18-21), does not directly resolve the question as to whether UCPR 36.15 is engaged. In terms, the rule is directed to the setting aside of an order that was made irregularly or illegally. 68 As will be apparent from my summary of the Council's submissions, the orders made by the Court on 23 October 2009 are not asserted to be irregular or illegal independently of the agreement upon which they are founded. It is that agreement which the Council asserts is irregular or illegal. However, in making that submission the Council misplaces its focus upon the actions of Mr Panozzo or Ms Starr. 69 The agreement upon which the orders made on 23 October 2009 were founded was the agreement forwarded to the Court on 22 October by the Council's solicitor, being the agreement signed by the solicitors for the parties. As I have earlier indicated at [25], paragraph 1 of that document records in substance the fact that agreement has been reached for the resolution of Presrod's proceedings. It is therefore necessary to focus upon the context in which the agreement was reached and upon the signatories to it in order to determine whether it is attended by irregularity or illegality so that, in turn, the orders consequent upon it are similarly infected.

The Solicitors had authority to resolve the proceedings 70 The implied and ostensible authority of a solicitor or barrister engaged by a party to litigation to settle or compromise that litigation is well recognised. It is an authority which may exist even in circumstances where an individual or corporate client is found not to have authorised the compromise reached and which has resulted in orders adverse to that client. 71 A useful statement of the principle relating to the implied and ostensible authority of a legal representative in legal proceedings and the rationale for that principle is to be found in the decision of the English Court of Appeal in Waugh v H B Clifford & Sons Ltd [1982] Ch 374. A brief recounting of the facts in that case will place the statement of principle in context. 72 In Waugh the plaintiffs initially sued Clifford, a building company, in contract and tort, seeking damages arising from defective building work in the erection of semi-detached dwelling houses on land they had acquired from Clifford. Both parties retained solicitors to act for them. Clifford instructed its solicitors to propose settlement of the proceedings to the plaintiffs. It suggested that in lieu of paying damages, Clifford would purchase the defective dwellings from the plaintiffs. Negotiations to achieve this end took place between the solicitors. One of the matters being negotiated was the manner in which the price at which Clifford would purchase the properties from the plaintiffs should be determined. A suggested solution was that agreement be reached as to a valuer appropriate to undertake that task. 73 Prior to agreement being reached for settlement of the proceedings, Clifford advised an employee of the firm of solicitors retained by it that it would not agree to the nomination of the particular valuer who had been proposed by the plaintiffs. That instruction was not received by the principal in the firm who was negotiating on behalf of Clifford prior to agreement being reached. Clifford's solicitor agreed with the plaintiff's solicitor that the proceedings be resolved on the basis that the dwellings would be acquired by Clifford at a price determined by the valuer who Clifford had instructed was not acceptable to it. 74 In a suit brought by the plaintiffs for specific performance of the agreement evidenced by the exchange of letters between solicitors in the original proceedings, Clifford defended the proceedings on the basis that no agreement had been entered into by it, as its solicitors had no authority to make that agreement on its behalf. Clifford was unsuccessful in its defence of the specific performance suit, notwithstanding a finding that its solicitors did not have express authority to agree in the terms which they did. 75 The leading judgment in the Court of Appeal was delivered by Brightman LJ who, after tracing the history of the law with respect to the authority of solicitors and counsel to compromise proceedings said this (at 387): "The law thus became well established that the solicitor or counsel retained in an action has an implied authority as between himself and his client to compromise the suit without reference to the client, provided that the compromise does not involve matter 'collateral to the action'; and ostensible authority, as between himself and the opposing litigant, to compromise the suit without actual proof of authority, subject to the same limitation; and that a compromise does not involve 'collateral matter' merely because it contains terms which the Court could not have ordered by way of judgment in the action; … ". 76 After further considering the implied authority as between the legal advocate and his or her client, his Lordship continued: "It follows in my view that a solicitor (or counsel) may in a particular case have ostensible authority vis-ٓa-vis the opposing litigant where he has no implied authority vis-ٓa-vis his client. I see no objection to that. All that the opposing litigant need ask himself when testing the ostensible authority of the solicitor or counsel is the question whether the compromise contains matter 'collateral to the suit'. The magnitude of the compromise, or the burden which its terms impose on the other party, is irrelevant." 77 When elucidating what, in effect, is the rationale or justification for identifying the principle which his Lordship identified, he said (at 388): "I think it would be regrettable if this Court were to place too restrictive a limitation on the ostensible authority of solicitors to bind their clients to a compromise … . So many compromises are made in court or in counsel's chambers, in the presence of a solicitor but not the client. This is almost inevitable where a corporation is involved. It is highly undesirable that the Court should place any unnecessary impediments in the way of that convenient procedure. A party on one side of the record and his solicitor ought usually to be able to rely without question on the existence of the authority of the solicitor on the other side of the record, without demanding that the seal of the corporation be affixed; or that a director should sign who can show that the articles confer the requisite power upon him; or that the solicitor's correspondence with his client be produced to prove the authority of the solicitor." 78 The principle articulated in Waugh v H P Clifford & Sons Ltd has been accepted and applied in this country. It was cited with approval by Jagot J in Clayton Jacobson and Lee Anne McMillan v Ballina Shire Council [2006] NSWLEC 114 at [71] - [72]. In Donellan v Watson (1990) 21 NSWLR 335, Handley JA said (at 342): "A solicitor retained to conduct litigation ordinarily has both implied and ostensible authority to bind his client to a compromise of those proceedings: see Chown v Parrott (1863) 14 CB NS 74; 143 ER 372; Prestwich v Poley (1865) 18 CB NS 806; 144 ER 662; Little v Spreadbury [1910] 2 KB 658 and Waugh v H B Clifford and Sons Ltd [1982] Ch 374 at 388. Any instruction from the client which restricts the solicitor's authority to compromise the proceedings will only affect the other party who is on notice of that restriction: see Thompson v Howley [1977] 1 NZLR 16 at 23-25 and the cases there cited." 79 More recently, the same principle was applied by White J in Across Australia Finance v Bassenger [2008] NSWSC 799. His Honour was there considering an application to set aside orders that had been made in the proceedings by consent. The defendant asserted that she had not given instructions to her solicitor to agree to the terms upon which the proceedings had been resolved. The application was made pursuant to UCPR 36.15 on the basis that the orders had been irregularly obtained. In rejecting that application his Honour said (at [26]): "Even if the first defendant's solicitor had no express or implied actual authority to sign the orders of 5 October 2007, those orders would not be liable to be set aside on any ground on which the contract embodied in them could be set aside. The plaintiff was not aware of any limitation on the solicitor's authority, assuming he did not have implied or expressed actual authority to bind his client to those terms. Moreover, for the reasons developed further below, I consider that the first defendant's solicitor, Mr Rabadi, had implied actual authority to settle on the terms he did, even though, on the evidence before me, he had no express authority to do so." 80 These varied statements of the same general principle have direct application in the present case. At the time of both the conciliation conference on 25 September 2009 and on or about 22 October 2009 when the agreement was signed by the Council's (then) solicitor, neither he nor Mr Panozzo or Ms Starr were aware of any impairment to or limitation upon the instruction to resolve the proceedings. The Council had retained that solicitor for the purpose of conducting proceedings on its behalf. In the circumstances his authority to sign the agreement that he did is to be implied.

81 Moreover, as against Presrod and its solicitor, the Council's (then) solicitor had the ostensible authority to enter the agreement that was signed on or about 22 October. Presrod's solicitor was dealing with the solicitor on the record retained by the Council. Even if he had not proposed it, the Council's (then) solicitor certainly accepted that the proceedings should be referred for consideration at a section 34 conference. As would have been apparent to Presrod and its representatives at that conference, the Council's solicitor was instructed by Council staff, including Mr Panozzo whose position description suggested that he was a senior employee. Those factors are a clear demonstration that the ostensible authority which Presrod's solicitor was entitled to assume enabled the Council's (then) solicitor to bind his client by signing the agreement which founded the orders made on 23 October. 82 If further demonstration of that ostensible authority was needed, then it lies in s 34 of the Court Act itself. The duty imposed by s 34(1A) "to participate, in good faith, in the conciliation conference" carries with it, as I have already indicated, the presumption that a party represented at such a conference is taken to have provided that representative with the authority to reach agreement on any matter which the representative determines to be appropriate. That agreement may be as to an issue in the litigation or it may be to the ultimate resolution of the proceedings. The absence of any such authority would need to be disclosed at the outset in order to disabuse any other party to the conference that authority to reach agreement was held. As would be apparent from my earlier recitation of the facts, there was no disavowal of authority on the part of the Council at any time prior to the making of the orders that are now sought to be set aside. 83 There is one further matter to be noticed which bears upon the agreement signed by the solicitors for the parties and which resulted in the making of orders. Subsection (3) of s 34 has, as its subject, a concluded agreement "reached between the parties or their representatives". Applying ordinary principles of agency law, separate reference to an agreement between "representatives" would appear to be unnecessary if the test of "agreement" is confined to the identification of an accord to which the parties themselves are direct privies. The separate identification of representatives as having a capacity to reach agreement for the purpose of engaging the operation of subsection (3), seems to me to reinforce a conclusion that a representative of a party with ostensible authority to act generally for that party in the proceedings has the capacity to reach agreement on behalf of the person or entity represented. 84 I am satisfied that the solicitor who signed the agreement on or about 22 October 2009 on behalf of the Council, founding the orders made on 23 October, had implied authority to do so. As against Presrod, he had the ostensible authority to do so. It resulted in a concluded agreement that was neither irregular nor illegal (cf Wandel & Goltermann GMBH & Co v Wandel Global Services Pty Ltd [2002] FCA 1609 at [3]). As a consequence, the orders of 23 October 2009 founded upon that agreement were not made either irregularly or illegally. 85 This determination carries with it the consequence that the Council's notice of motion must be dismissed. However, against the possibility that, contrary to my determination, UCPR 36.15 is, in the circumstances, engaged, it is appropriate that I address discretionary considerations relevant to the making of any order. That aspect of the matter was fully argued before me. Sufficient cause not shown 86 On the assumption that it has demonstrated the orders to have been made irregularly or illegally, the Council relies upon a number of matters to justify the setting aside of the orders. In essence, they are as follows: (i) there was considerable public interest in Presrod's development application, indicated by the fact that in the form in which it was originally lodged with the Council and then publicly notified, some 38 submissions by way of objection were received, while the amended application submitted to the Council attracted some 24 submissions by way of objection when it was again publicly notified; (ii) public participation in the planning process is an important element of the legislative regime established in and by the EPA Act; (iii) those objectors who had made submissions to the original and amended development applications had been notified of its refusal by the Council following the decision made on 22 April 2009; (iv) communications between local residents and Council staff in December 2009 indicate that there was a general awareness of the terms of the notification policy requiring that objectors be notified of an appeal to the Court following refusal of a development application; (v) failure to notify objectors of Presrod's appeal to the Court denied those objectors an opportunity to be present when the appeal was being considered by the Court; (vi) in particular, the failure to notify objectors deprived any one or more of them of the opportunity to seek joinder as a party to the appeal proceedings pursuant to s 39A of the Court Act. 87 These are all matters of significance. Public participation in the planning process has long been recognised as an important element in the administration and operation of the EPA Act. 88 However, there are a number of countervailing factors applicable to the particular circumstances of this case which must also be considered. First, the evidence makes clear that the objections to Presrod's development application were made known to all concerned with the proceedings in the Court. As I have already recorded, prior to the determination of the Council in April 2009, the development application had been publicly notified on two occasions. The concerns expressed in the submissions received were the subject of the contentions included in the Council's Statement of Facts and Contentions for the purpose of the appeal to the Court. 89 Secondly, the class of persons required to be notified in accordance with section 9.3 of the notification policy was closed. It was confined to those who had made submissions to the Council, with the result that their opinions or concerns were known. 90 Thirdly, the evidence makes clear that the concerns expressed by resident objectors were in fact considered at the section 34 conference. The letters of objection forwarded to the Council were provided to the Commissioner. Importantly, both Mr Panozzo, as a senior employee of the Council, and Mr Mead, the retained consultant, expressed the opinion at the conference that the concerns expressed in the letters of objection had been addressed by the amended plans and the further conditions which were prepared by Presrod for consideration at that conference. 91 Fourthly, the instruction to agree to orders was within the delegated functions ordinarily able to be exercised by the holder of the employee position which Mr Panozzo and Ms Starr held at the relevant times. The failure to abide by the requirements of the notification policy does not detract from the fact that they were otherwise entrusted with the making of responsible decisions of the kind now being considered. 92 A fifth matter of relevance in the present context is a matter to which I have earlier adverted. Presrod, through its solicitor, was unaware of any shortcoming in the exercise of delegated power by the employees instructing the Council's solicitor or of any restriction upon him to act in the manner that he did. No circumstance is identified which would have alerted Presrod's solicitor to the need for some form of written authorisation from the Council to allow its solicitor to sign the agreement that he did. 93 A further matter of relevance relates to the integrity of the section 34 conference process. I have earlier identified the central importance of this process to the proper resolution of Class 1 proceedings before the Court. The provisions of s 34 which I have earlier discussed militate against any necessity for a Commissioner conducting a conference in accordance with that section to enquire as to the authority of a legal representative to enter into an agreement made for the purpose of engaging the provisions of subsection (3). 94 One final matter to be noticed in this context is the prejudice occasioned to Presrod if the orders are set aside. I refer to a prejudice which extends beyond that which would ordinarily affect a party who has the benefit of orders that are sought to be set aside. The particular prejudice in this case arises from a change in planning controls. 95 At the time at which the orders were made on 23 October 2009, the principal planning instrument controlling development on the subject land was Wollongong City Centre Local Environmental Plan 2007 (LEP 2007). Under the provisions of LEP 2007, the development proposed by Presrod was permissible with the consent of the Council. At that time, Draft Wollongong Local Environmental Plan 2009 (DLEP 2009) had been publicly exhibited and was therefore required to be considered when determining Presrod's development application: s 79C(1)(a)(ii) EPA Act. Importantly, Presrod's development remained permissible with consent under the provisions of DLEP 2009 in the form which it took at that time. It was amended after October 2009. 96 If the orders made on 23 October 2009 are now set aside, Presrod's development application will have to be determined in accordance with the current planning instrument. DLEP 2009 became Wollongong Local Environmental Plan 2009 (LEP 2009) and commenced on 26 February 2010 when it was published on the NSW legislation website (cl 1.1AA). By the provisions of that instrument, development of a kind proposed by Presrod is now prohibited. Clause 1.8A of LEP 2009 contains a savings provision for development applications not finally determined before its commencement. It requires that any such application be determined "as if this Plan had not commenced". 97 Clause 1.8A of LEP 2009 has the effect that if Presrod's development application was now to be considered as if it had not been finally determined, the development proposed would not be prohibited. However, when applying the provisions of s 79C(1) of the EPA Act, the terms of cl 1.8A would not exclude consideration of the fact that development of that kind is now prohibited under LEP 2009. It may well be considered that the prohibition that would otherwise apply is a factor weighing against the grant of development consent (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195). It is this fact which, to my mind, exposes Presrod to particular prejudice should the orders be set aside. 98 If it was necessary for me to exercise the discretion which clearly exists when determining an application under UCPR 36.15 (a discretion which the Council expressly acknowledged), I would determine that sufficient cause had not been shown to set aside the orders made on 23 October 2009. The particular factors favouring retention of the orders outweigh those advanced by the Council in support of the application to set them aside. In the language employed on behalf of the Council, "the interests of justice" are better served by the retention of the orders. Conclusion 99 The Council retained a solicitor to act for it in Presrod's development appeal. That solicitor acted on instructions from Council officers. The agreement signed by that solicitor, on instructions, to resolve the proceedings, following the section 34 conference held on 25 September 2009, was within his implied authority so to do. Moreover, the circumstances demonstrate that Presrod, and those acting for it, were entitled to and did act on the basis that the Council's solicitor had ostensible authority to sign the agreement that he did. It follows that the orders made consequent upon and in accordance with that agreement were not made and entered irregularly or illegally. 100 Even if I had found that those orders were made irregularly or illegally, the evidence does not demonstrate sufficient cause to set aside the orders. The absence of notice to persons who had made submissions to the Council of the fact that Presrod had appealed to this Court is, in all the circumstances, outweighed by factors favouring retention of the orders made. Orders 101 For these reasons the orders that I make are as follows: 1. The respondent's notice of motion filed on 4 May 2010 is dismissed. 2. The respondent is to pay the applicant's costs of the notice of motion, as agreed or assessed. 3. Exhibits may be returned. **********

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