Red Sea Investments Pty Limited v Ku-ring-gai Council

Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: Land and Environment Court Rules 1996 .

Red Sea Investments Pty Limited v Ku-ring-gai Council [2005] NSWLEC 380; Autodesk Inc and another v Dyason and others (1993) 176 CLR 300; CASES CITED: Carriage v Stockland Development Pty Limited (No 5) [2004] NSWLEC 674; Wollong Pty Limited v Shoalhaven City Council (No 2) 122 LGERA 178; .

APPLICANT Mr P McEwen SC Ms A Pearman, barrister INSTRUCTED BY D G Briggs & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr J Robson SC Mr T To, barrister INSTRUCTED BY Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/10387 Red Sea Investments Pty Limited v Ku-ring-gai Council

JUDGMENT 1 Commissioner: On 5 July 2005, I conducted an on-site hearing at 2A and 2B Killara Avenue, Killara (the site) and gave a decision in which I dismissed the appeal. That decision is reported as Red Sea Investments Pty Limited v Ku-ring-gai Council [2005] NSWLEC 380. 2 Prior to the entering and perfection of orders dismissing the appeal (which would have had the effect, pursuant to Part 15 rule 4 of the Land and Environment Court Rules 1996 (the Rules) of finally disposing of the proceedings), an application was made to Lloyd J for leave for the applicant to amend its plans and to adduce further evidence in support of those amended plans.

3 It was intended by the applicant that, if this course were permitted, those matters which had led to my determination to dismiss the appeal would be cured and, as a consequence, the outcome of the proceedings would need to be reversed. 4 His honour concluded this was an application appropriately made to me. This has been possible as a consequence of the recent amendments to Part 13 rule 2 of the Rules which now permit Commissioners to determine Notices of Motion in proceedings which have been assigned to them for hearing by the Chief Judge pursuant to s 36(1)(a) of the Land and Environment Court Act, 1979 (the Court Act). Prior to this amendment to Part 13 of the Rules, Commissioners were not authorised to deal with the Notices of Motion - that procedural format being the vehicle by which such applications must be made (see Part 9 rule 2).

5 During the preliminary stages of this current element of the matter, prior to my substantive hearing of the reopening application, I expressed concern that a considerable portion of the affidavit material upon which the applicant sought to rely (and which was replied to by affidavit material on behalf of the council) was material more appropriate to be dealt with in an appeal pursuant to s 56A of the Court Act rather than through the vehicle of an application to reopen after a decision had been given but prior to the perfection of orders arising there from. 6 As a consequence, at the commencement of substantive hearing, the parties conferred and reduced the scope of the evidence read from the affidavits to eliminate any possibility that I might be being invited to sit in judgment in any substantive fashion on my conduct of my own on-site hearing.

7 As a further consequence, the recitation of events which took place on the day of the on-site hearing is now comparatively skeletal and, for the purposes of this decision, as will become apparent later in these reasons, I do not need to make any factual determination concerning what took place on the day thus avoiding putting me in the invidious position of, in effect, giving evidence, by this decision, for any future s 56A appeal if it were to occur.

8 In summary, I held that the original application was defective in two major elements. The first related to the design of the upper level of the proposed building not providing a sufficient break in its length to provide an appropriate planning outcome. The second was that the proposed parking arrangements were not merely defective in their failure to satisfy the provisions of the Ku-ring-gai Planning Scheme Ordinance (the LEP) but that the objection pursuant to State Environmental Planning Policy 1 (SEPP 1) seeking to set aside these deficiencies was inadequate and unable to be sustained.

9 With respect to the first of those matters, my consideration and determination is set out between paragraphs 18 and 39 of my decision. It is clear from what I wrote in paragraph 39 that, had that been the sole basis for failure of the appeal, I would have adjourned proceedings to permit the applicant to amend its plans to address that issue. Such an approach is consistent with the present practice of the Court in Class 1 proceedings.

10 The second element was one which was alive from the commencement of the proceedings and with respect to which an alternative possible design had been provided by the applicant's architect as part of a position statement dealing with the proposed development. The alternative design would have satisfied the provisions of the LEP thus rendering unnecessary an objection pursuant to SEPP 1. These matters are discussed in paragraphs 40 to 61 of my decision.

11 Critical to my determination, and of considerable importance in this application to re-open, is the fact that, at several points during the on-site hearing (the times of which are not relevant, in my view, in considering this application), the applicant was afforded the opportunity to seek leave to amend the plans to incorporate this alternative design. 12 The council's solicitor, Mr Marincowitz, indicated, during the on-site hearing, that the council would not object to such amendment but would seek an adjournment to enable engineering advice to be sought from its staff concerning: - the adequacy of the revised design for the car park; and - the additional excavation which would be required for the revised design. 13 On instructions, Ms Pearman, counsel for the applicant, indicated that the applicant had some pressing commercial imperatives relating to the expiry of options over the properties involved in the application and that, as a consequence, the applicant elected to proceed to have the matter determined on the basis of the parking provisions as they stood in the plans and, as those plans did not satisfy the LEP, the applicant relied on the SEPP 1 objection to cure this defect.

14 Two other matters were in contention. They were possible deficiencies in the calculation of the footprint of the building and the possible consequences, if the calculations had not been made accurately, of non-compliance with the controls. This was not a matter which had been raised by the council but which was raised by me after my consideration of the plans. This is noted at paragraphs 62 and 63 of my decision.

15 The final matter related to the adequacy of the proposed waste disposal arrangements and this is noted at paragraph 64 of my decision.

16 It is quite clear, with respect to the first, third and fourth of these issues, that they were obviously and predictably curable by amendments to the plans and that no substantive issues of potential technical controversy were likely to arise should I have adjourned and permitted amendments to deal with them (subject only to the appropriate consultation arrangements and the additional costs of the council in settling those revised plans being met by the applicant).

17 A similar position did not necessarily apply to the second, the redesigned parking arrangements, issue. The possible changes to the plans were such that the need, for a proper technical assessment being required as a consequence of the scope of the design changes, was self-evident. 18 I have taken some trouble to set out the factual matrix, in as neutral a fashion as I am able, in order that there can be a proper understanding of the conclusion which I have reached concerning this re-opening application. 19 Whilst it was the position of the applicant that that parking redesign was technically appropriate, this was not conceded by the council and, therefore, was not matter upon which I could or would consider forming an opinion until after the matter had been subject to technical scrutiny. It is certainly not agreed by the council that such an amended parking scheme would inevitability succeed.

20 This is a matter of some importance in considering the policy of the Court in Class 1 merit appeals as they are presently conducted. 21 In Class 1 merit appeals, the Court has now adopted the policy of what might be described as adding the third colour to the traffic lights. Until McClellan J became the Chief Judge of the Court, the attitude that was taken in a merit appeal was that it succeeded or that it failed - that is, the appeal was either upheld or it was dismissed. The practice now followed is, if the appeal was not capable of being upheld in the form that comes to the Court, the (usually) Commissioner will deal with the notionally posed question: "If it is not capable of approval as it is, is it capable of approval with minor modifications?" This policy is what might now be regarded as the yellow light approach.

22 The consequences of reaching a "yellow light conclusion" is that the (usually) Commissioner will be asked to give a preliminary determination and, if necessary, give guidance about subsidiary, non-determinative issues that might be of concern. Only in light of a "yellow light conclusion" will applicants be permitted to go away and amend their plans to reflect the nature of what was determined.

23 Such a "yellow light conclusion" enables the council to have control over the process of plan amendment. The beauty for applicants is that they are not being told to start again. They are going to get an approval in a fashion that would save them up to 12 or 14 months than if they had to go back to the beginning.

24 In this case, as noted in (19), I could not have reached a "yellow light conclusion" on the parking issue - particularly (but not solely0because of the council's position.

25 Mr Robson SC, senior counsel for the respondent, conceded that I do have jurisdiction to grant the application pursuant to Part 15 rule 9(b) of the Rules. However, he submitted that, as it is a matter of discretion, it would be inappropriate, under all the circumstances, for me to do so. 26 He put, in summary, that it was in the public interest that Class 1 proceedings have certainty in the finality of a hearing (subject only to s 56A appeal proceedings). He also put that it was in the public interest that the future carriage of considering alternative development proposals for the site should lie with the council. He also put that to grant this application would "open the floodgates". 27 I reject this latter argument as my decision in this application is made solely on the facts and circumstances of this case.

28 Mr P McEwen SC, senior counsel for the applicant, has put the applicant's case on the basis that, first, the discretion to permit reopening is not as confined as is put on behalf of the respondent; and, second, that to permit reopening would be entirely consistent with the policies now pursued by the Court in seeking what are described as communally acceptable outcomes in Class 1 merit appeals.

29 In this latter regard, it is put that this policy approach adopted in this Court sets it apart from the general policy considerations, which might otherwise apply in other jurisdictions. It is submitted on behalf of the applicant that, even if I were to accept the propositions flowing from the respondent's position on the circumstances which ordinarily apply in other jurisdictions for reopening at this point in the determination process, the nature of the processes of this Court in this class of proceedings is such that a greater degree of flexibility is warranted.

30 The applicant provided me with a lengthy list of authorities where the exercise of discretion to reopen had been exercised in favour of a reopening being permitted. I do not propose to canvass any of them as they have, in my assessment, a single factor in common. 31 It is this - in all or virtually all instances, these cases had in common the position that the matter subsequently sought to be put in evidence or agitated was not the subject of a deliberate forensic decision by a party, on advice from a competent a legal advisor, that such materials should not be put in or such points should not be agitated.

32 In contradistinction, in this instance, the decision not to seek to amend, in this case, was a deliberate decision taken, for admitted commercial reasons, upon advice from the applicant's solicitor. 33 The respondent's submissions, in effect, although other authorities were cited, are based on the decision of the High Court in Autodesk Inc and another v Dyason and others (1993) 176 CLR 300. Brennan J said, at 308: This Court has undoubted jurisdiction to recall a judgment which it has pronounced, at least prior to the formal entry of the judgment, if the judgment has been pronounced against a person who, without fault on the part of that person, has not had an opportunity to be heard as to why that judgment should not be pronounced. The jurisdiction is exercised sparingly for it is important to bring litigation to finality in this Court. The approach of Courts from which an appeal lies is not so strict, for it may be preferable to recall an unperfected but erroneous judgment rather than allow it to stand until it is quashed on appeal. Nevertheless, natural justice would be denied if, in a case in which the stated conditions are satisfied, the judgment were not vacated.

34 In Autodesk, Deane J said: Whilst the Court has jurisdiction to entertain an application to vacate orders which it has made, at all events before those orders have been perfected by the entry of judgment (that not having occurred in this case), it is a jurisdiction to be exercised cautiously, bearing in mind the public interest in the finality of litigation. In Wentworth v Woollahra Municipal Council, the Court said: "(T)he circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard." 35 As noted at (5) to (7) above, I am not considering any aspects of the on-site hearing which might, in the eyes of the applicant or its advisors, constitute grounds for an appeal pursuant to s 56A of the Court Act. Rather, I am merely considering an application to reopen the factual matrix founding the decision on the merits. 36 The fundamental proposition which must guide me comes, in my view, from the words of Brennan J - encapsulating the circumstances when re-opening ought be permitted - judgment has been pronounced against a person who, without fault on the part of that person, has not had an opportunity to be heard as to why that judgment should not be pronounced. 37 The quoted extract from the reasons of Deane J reinforces this position. 38 In this Court, Autodesk has been applied. 39 Indeed, in Carriage v Stockland Development Pty Limited (No 5) [2004] NSWLEC 674, Cowdroy J permitted re-opening after judgment but did so for reasons entirely consistent with the words of Brennan J extracted in (36). 40 In Wollong Pty Limited v Shoalhaven City Council (No 2) 122 LGERA 178, Talbot J, although not citing Autodesk, dealt with the discretion by saying: In circumstances where a fully reasoned reserved judgment has been delivered in respect of the substantive issues in the case and without being convinced that the interest of justice will be better served by allowing the applicant to re-open, the Court is not prepared to exercise its discretion in favour of the applicant. The situation is akin to the position relied upon by the High Court in Bailey v Marinoff when it was decided that it would not promote the due administration of the law or the promotion of justice to re-instate (what in this case is a part) proceedings of which the Court has finally disposed.

41 Faced, as I now am, with circumstances where the reasons for decision have been given and a positive forensic decision made by the applicant not to pursue, prior to that decision, the matter now sought to be agitated (despite being provided with the opportunity to do so), there is an overwhelming public interest in the finality of the decision-making process. 42 As a consequence, I am satisfied that, despite the less formal peculiarities in Class 1 proceedings in this jurisdiction, it would not be appropriate to exercise the discretion to reopen. 43 For that reason, this application is dismissed.

44 Mr Robson foreshadowed that an application for costs in this application would be made in the event that I reached this conclusion. I will deal with the process for consideration of such an application in my directions at the conclusion of this decision. 45 At this point, it is appropriate to note that this decision has been given with a degree of swiftness as a consequence of the respondent indicating that it did not object to me being aware of what were the commercial imperatives of the applicant at the present time. 46 This was a matter relevant to the timing of my giving of this decision as, had I reserved for a significantly longer period and concluded otherwise than I have done, such alternative conclusion, if reached, could have been rendered nugatory by an excessive effluxion of time. 47 I therefore note that I have, in the preparation of these reasons and determination of my conclusion, been influenced, solely as the timing of my decision, by the commercial imperatives of the applicant. .

48 During the course of closing submissions, Mr Robson submitted that, in addition to the application presently before me, the applicant also had the opportunity to have the council's position reviewed pursuant to s 82A of the Environmental Planning and Assessment Act 1979 (the Planning Act) and that this option remained open to it. 49 In a limited and technical sense, this may be correct in that, pursuant to s 82A(2A)(b) of the Planning Act, that opportunity remains alive until these proceedings are disposed of - that is until orders dismissing the appeal are perfected pursuant to Part 4 of the Rules. 50 S 82A(2A)(b) of the Planning Act reads: (2A) A determination cannot be reviewed: (a) ……….., or (b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination. 51 Had the council not raised the question of such a review, I would not have considered doing so myself as, as can be seen from these reasons, I am of the view that my role, in anything other than a purely formal fashion, should be regarded as concluded. 52 However, the council itself has raised the possibility of a review. I am satisfied that it would not be unreasonable to permit the applicant an opportunity to consider whether it wished to take advantage of this opportunity. 53 I have only so concluded because the council held out that such a review option was still available to the applicant.

54 In addition, the Registrar need not perfect orders in these proceedings until after I have heard and determined submissions about costs. As a consequence, such a review need not unduly delay finalization of orders in these proceedings. 55 The virtue of the review process is that it is undertaken by the council and is a process entirely consistent with the council's desire to have further consideration of any development proposed for the site be done through the council's planning processes and under the council's control, in the public interest.

56 As a consequence, I propose to set the matter down toward the end of September, for a short hearing on costs. 57 As a further consequence, the applicant can consider whether or not it wishes to apply to the council for a review pursuant to s 82A of the Planning Act as the proceedings will not be disposed of during the period prior to the costs hearing if it does so. 58 If the applicant does apply for such a review in compliance with direction (3) below, I will defer having the Registrar enter final orders to enable such a review to be completed.If the applicant does apply for such a review, I would hope that the review can be determined by the council prior to my making a decision at the costs hearing.

59 I therefore give the following directions: 1. The matter is set down for 1 hour at 9 a.m. on 27 September 2005 for the purposes of considering an application by the respondent for its costs in this application to reopen; 2. The respondent is to file and serve, by 4 pm on 14 September, a schedule of the costs it claims - which schedule is to be is sufficiently itemised and quantified to enable the applicant to respond to any matters contained in it; 3. If the applicant wishes to make an application pursuant to s 82A of the Planning Act for a review of the council's determination, such application is to be made to the council by 4 pm on Monday 12 September 2005; and 4. If the applicant does not apply for such a review in compliance with direction (3), the respondent is to advise the Registrar of this, in writing, by 4 pm on Tuesday 13 September 2005, and orders will be entered forthwith in terms of the orders proposed in paragraph 66 of my decision of 5 July 2005.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.