HEADNOTE
[This headnote is not to be read as part of the judgment]
On 6 October 1998, the predecessor of the first respondent, Central Coast Council (Council), granted development consent to the predecessor of the first appellant, Verde Terra Pty Ltd (Verde Terra), to remodel and expand a nine-hole golf course at Mangrove Mountain by excavating part of the land upon which the golf course was situated, and backfilling it with waste materials. At the time development approval was granted, on 14 October 1998, the development was classified as a "designated development", within the meaning of section 77A of the Environmental Planning and Assessment Act 1979 (NSW). The grant of development consent was predicated on the provision both of an environmental impact statement and of an opportunity to members of the public to object to the grant of any such consent.
In 2012, the Council's predecessor instituted proceedings in the Land and Environment Court against Verde Terra to remedy what it considered to be breaches of terms of the development consent regulating the extractive industry and waste facility on the subject land. Those proceedings were settled by consent orders in August 2014. In a number of respects the works the subject of the consent orders differed from the works authorised by the development consent. It was common ground on appeal that although such works were not authorised by the development consent, the orders were lawfully made and both authorised and mandated the carrying out of the works.
On 21 December 2018, Verde Terra, by a new development application, sought to alter aspects of its prior development consent. Following a deemed refusal by the Council, on 1 July 2019, Verde Terra commenced both Class 1 and Class 4 proceedings in the Land and Environment Court. In the latter, Verde Terra sought, first, a declaration that it did not need further development consent to carry out the development of the landfill and golf course, and, secondly, a declaration that the landfill and golf course constituted an "existing or approved" development within the meaning of cl 35 of Pt 2 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation). The primary judge made the first declaration but declined to make the second, the practical utility of which was suggested by Verde Terra to be excusal from the need to comply with requirements for consent to designated development as the amendments did not increase the total environmental impacts of the development the subject of the 2014 orders. Part of the primary judge's reasons for not so declaring were stated to be that, while the subject of consent orders, the development had not been approved by a consent authority. Her Honour also held that the 2014 consent orders operate as a judgment in rem in relation to the development that may now be carried out on the land pursuant to the 1998 consent, as they define the activity permitted to be carried out under that consent.
On appeal, the issues before the Court were:
(i) whether the primary judge erred in not holding that a development the subject of consent orders amounts to an "approved" development for the purposes of cl 35 of Pt 2 of Sch 3 to the EPA Regulation; and
(ii) whether the primary judge erred in not finding that the consent orders entered in August 2014 merged in the original development consent, so as to amount to an "approved development".
The Court (per White JA, Ward P and Kirk JA agreeing), dismissing the appeal with costs, held:
As to both issues:
(1) While consent orders and judgments by consent might give rise to a res judicata estoppel enforceable as between the participants in litigation, they do not give rise to a judgment in rem binding third parties: [37]-[43].
PE Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437, considered.
The Duchess of Kingston's Case (1776) 1 Leach 146; 168 ER 175; Goucher v Clayton (1865) 11 LT 732; Wytcherley v Andrews (1871) LR 2 P&D 327, cited.
(2) An "approved development" within the meaning of cl 35 of Pt 2 of Sch 3 to the EPA Regulation does not necessarily require approval from a consent authority but can include development authorised by court orders. That is not because the orders merge in the development consent but because the development approved by the orders would be binding on the world. As cl 35 affects third parties' rights, the "approved development" against which the environmental impact of the total development is to be assessed, is a development whose approval is binding on third parties. Here, because the 2014 orders were obtained by consent and thus were not binding on third parties, the development sought to be altered by Verde Terra does not answer the description of an "approved" development: [44]-[47].