DEVELOPMENT CONTROL ORDER - removal of structures - conciliation conference - agreement between the parties - orders
Source
Original judgment source is linked above.
Catchwords
DEVELOPMENT CONTROL ORDER - removal of structures - conciliation conference - agreement between the parties - orders
Judgment (4 paragraphs)
[1]
Judgment
On 24 December 2018, I delivered a judgment and made final orders disposing of these proceedings in accordance with the parties' executed s34 agreement.
Today I have been asked to set aside those final orders and to make new orders, but this time referencing an Annexure A that is different to the comparable annexure to the December orders.
Let me explain.
[2]
Background to the 24 December 2018 orders
The proceedings concern a Class 1 appeal in relation to a development control order issued by the Council on 2 July 2018 (the Order) to a company called Rabbits Eat Lettuce Pty Ltd (the applicant).
The applicant holds a development consent DA 2016/0007 for the use of land being Lots 63, 64, 70 and 71 in DP 755636 and Lots 1, 2, 3, 4, 5 and 6 in DP 127047 - located at 1048 Seery Road, Kippenduff, New South Wales (site) for events and the erection of temporary structures.
The development consent requires the removal of the structures during a 21 day bump out period. On inspection undertaken by the Council on 30 April 2018 after the 21 day bump out period, it revealed that a number of the structures remained on site without approval.
To address this breach of the consent, the Council served on the applicant the Order the subject of this appeal under Part 1 Order 3 of Schedule 5 to the Environmental Planning and Assessment Act 1979 (the EPA Act).
The Order required the applicant to remove from the property all items described in the schedule attached to the Order within a specified timeframe.
The applicant did not remove the structures but instead lodged a Class 1 appeal, within 21 days of the date of the Order, seeking a revocation of the Order pursuant to cl 23 of Schedule 5 to the EPA Act.
Section 8.18 of the EPA Act identifies the Court's power on appeals concerning orders. It provides:
8.18 Appeals concerning orders (cf previous s 121ZK)
(1) A person who is given a development control order may appeal to the Court against the order.
(2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).
(3) The appeal may be made only:
(a) within 28 days after the development control order is given to the person, or
(b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.
(4) On hearing an appeal, the Court may:
(a) revoke the development control order, or
(b) modify the development control order, or
(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or
(d) find that the development control order is sufficiently complied with, or
(e) make such order with respect to compliance with the development control order as the Court thinks fit, or
(f) make such other order with respect to the development control order as the Court thinks fit.
The Court fixed a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, on 20 December 2018. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The terms of the decision as agreed by the parties are as follows:
1. The appeal is upheld.
2. The Court makes the Orders set out in Annexure A in substitution of the Order pursuant to Order No.3 issued by the Council to Rabbits Eat Lettuce Pty Ltd dated 28 June 2018.
Under s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involved the Court exercising the functions under s 8.18(4)(b) of the EPA Act to modify the terms of the order as set out in Annexure A to this judgment.
At that time I was told by the parties that the jurisdictional prerequisites had been satisfied and that the parties' decision was one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
Therefore, under s 34(3) of the LEC Act I disposed of the proceedings in accordance with the parties' decision and on 24 December 2018 ordered as follows:
1. The appeal is upheld.
2. The Court makes the Orders set out in Annexure A in substitution of the Order pursuant to Order No.3 issued by the Council to Rabbits Eat Lettuce Pty Ltd dated 28 June 2018.
[3]
Notice of Motion dated 13 February 2019
After the publication of my judgment and the final orders being entered on the Court's record system - Justice Link, the applicant's solicitor, Mr Ross Fox, filed a Notice of Motion (Motion) on 5 February. It is listed before me today.
The Motion seeks the amendment of the Court's orders dated 24 December 2018 pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR) - referred to as the "slip rule".
The Council supports the proposed amendment for the reasons outlined in the affidavits accompanying the Motion prepared by Mr Ross Fox affirmed on 4 February 2019 and Mr Erik Lanir-Pike, the director of the applicant company.
Put simply, the parties agree that the signed s34 agreement forwarded to the Court did not reflect the agreement reached by the parties at the conciliation conference. Rather, the signed agreement incorrectly required the removal of structures which the applicant did not own or control within an area called "Entertainment Area 1".
The parties now seek to use the "slip rule" to address their error by substituting a new document marked Annexure A to the 24 December 2018 orders as made setting out the correct list of structures to be removed from the site by the applicant.
As the "mistake" in the orders is not the Court's error but that of the parties' solicitors, I do not accept that this is a matter that can properly be dealt with under the "slip rule" in rule 36.17 of the UCPR: see Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [266]-[272].
Moreover, the "mistake" raises a jurisdictional matter. I do not have power to order the applicant to remove the listed structures in Entertainment Area 1 owned by someone else.
However, there is another way forward. Relevantly, rule 36.15(1) provides the Court with a general power to set aside a judgment or orders, on sufficient cause being shown, if the judgment was given or entered, or the order was made irregularly, illegally or against good faith. Alternatively, sub-rule (2) provides that a judgment or order of the Court in any proceedings may be set aside by order of the Court if the parties to the proceedings consent.
To that end, the applicant amended its Motion to request that I set aside the orders of the Court dated 24 December 2018 under rule 36.15(1) of the UCPR on the basis of illegality because I had no power to order the applicant to remove the structures outside its control or with the consent of the parties under rule 36.15(2) of the UCPR.
The Council supported this course and I so ordered.
That is, for the reasons outlined by the parties' and the applicant's affidavits, as summarised above it is my view that there is sufficient cause demonstrated to set aside the 24 December 2018 orders under rule 36.15(1) and as a joint application under rule 36.15(2).
I now return to the executed s34 agreement and the orders sought by the parties today based on the amended Annexure A. I note the applicant's solicitor's assurance that her client is aware of the application before the Court and accept that it must comply with the terms of the s34 agreement and the Court's orders to remove the structures listed in the amended Annexure A by 4 March 2019.
With that in mind, and based on the parties joint position and the evidence, I am now satisfied that I have jurisdiction to make the orders sought today as they reflect the agreement reached under s34 (3) of the LEC Act. I am also satisfied that the decision that I am being asked to make is one that the Court could have made in the proper exercise of its functions.
For those reasons and with the consent of the parties, I make the following orders:
1. The Court orders under rules 36.15(1) and 36.15(2) of the Uniform Civil Procedure Rules 2005, with the consent of the parties that the Orders of the Court dated 24 December 2018 in proceedings 2018/00216259 are set aside.
2. Leave is granted to the parties to reopen the proceeding in accord with the applicant's amended Notice of Motion filed on 5 February 2019 for the purposes of amending the schedule of works as outlined in Annexure A attached to the parties executed Section 34 agreement received by the Court on 24 December 2018 to delete any reference to the works in the area described as Entertainment Area 1 at paragraphs 3, 4, 5 and 6.
3. The appeal is upheld.
4. The Court makes the Orders set out in Annexure A in substitution of the Order pursuant to Order No.3 issued by the Council to Rabbits Eat Lettuce Pty Ltd dated 28 June 2018.
……………………….
Susan Dixon
Senior Commissioner of the Court
Annexure A (13.02.19)
[4]
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Decision last updated: 19 February 2019