Welsh Property Consulting Pty Ltd v The Hills Shire Council

Land and Environment Court (NSW)|2015-12-18|Before: Sheahan J

Solicitors: Reid & Vesely Solicitors (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2016/150109 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2015] NSWLEC 1288 Date of Decision: 30 July 2015 Before: Dixon C File Number(s): 11090 of 2014 (now 2016/166969)

Introduction

Unusually, the competing parties in this case have made two joint applications to the Court - one in the determined Class 1 proceedings, and the other in the undetermined "s 56A" appeal, in which, after a hearing on 18 December 2015, I had reserved my decision.
The Council has changed its position in respect of the subject development, and, after refusing it, and defending both the Class 1 and "s56A" appeal, now supports it.
On 6 July 2016, the parties placed before the Court the following documents: 1. A Notice of Motion ("NOM") in matter 2016/166969 (formerly 14/11090 - the Class 1 appeal) seeking the following orders by consent: 1 The Orders made on 30 July 2015 by Dixon C in Welsh Property Consulting Pty Ltd v The Hills Shire Council [2015] NSWLEC 1288 are set aside. 2 Development consent is granted for the relocation of the Mt Carmel Road and associated works as detailed in Development Application DA 1328/2014Z (sic - 1328/2014/ZB) lodged with the Hills Shire Council on 2 May 2014 subject to the conditions in Annexure A to these orders. 3 The Applicant is to pay the Respondent's costs of the proceedings before Dixon C in the agreed amount of $48,000.00. 1. A NOM in matter 2016/150109 (formerly 15/10750 - the s 56A appeal) seeking the following orders by consent: 1 The proceedings are discontinued. 2 The Applicant is to pay the Respondent's costs in the agreed amount of $32,000.00. 1. A form of signed consent orders for me to make, covering both cases, correcting the number of the relevant Development Application ("DA") in NOM (a) above, and comprising the orders sought in both NOMs. 2. Joint written submissions by opposing counsel, dated 5 July 2016. 3. A "Combined Joint Report of Experts", prepared by the respective planning experts of the parties (Peter Lee for Welsh, and Benjamin Hawkins for Council), dated 1 July 2016.

Background

Despite Welsh having obtained approval from various other public authorities, Council had refused to grant its consent to Welsh's application to relocate, by 300 m to the west, a road identified in a precinct plan and a development control plan.
The DA was refused because the proposal was adjudged to be inconsistent with the road's location as identified in the current strategic framework for the precinct.
Welsh appealed to the Court against that refusal. The original objectors to the DA were notified of the s 34 conference and the Class 1 hearing, but the Court has been told that they lodged no communication, and did not seek to be heard, on either occasion.
The alleged inconsistency with the framework was the only contention which remained in the Class 1 appeal when it came on for hearing before Commissioner Dixon.
Welsh conceded the inconsistency, and proposed that the Commissioner grant consent subject to a deferred commencement condition.
Council argued before the Commissioner that the application was "premature", as the proposed amendments could not be held to be "certain or imminent" ([15] - [20]).
Commissioner Dixon dismissed the appeal on 30 July 2015: Welsh Property Consulting Pty Limited v The Hills Shire Council [2015] NSWLEC 1288.
The Commissioner held that Welsh's approach was "problematic" for a number of reasons ([23]ff). She concluded ([46]) that there were "too many unresolved matters to enable [her] to carry out any proper assessment of [Welsh's] application", and she refused consent, citing Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 181 (at [93]).
On 13 August 2015, Council filed a NOM seeking an order that the applicant pay the Council's costs of the Class 1 appeal.
On 27 August 2015, Welsh appealed, under s 56A of the Land and Environment Court Act 1979 (NSW) ("the Court Act"), against that decision.
The Council's costs motion was adjourned by the Registrar, on 24 September 2015 for mention at the commencement of the s 56A hearing on 18 December 2015, but it has never been heard.
The s 56A appeal was based on four grounds: 1. The Commissioner misconstrued the deferred commencement condition provision in s 80(3) of the Environmental Planning and Assessment Act 1979 ("the EPA Act") and so erred on a question of law. 2. The Commissioner erred in law in misapprehending or misconstruing the nature or limits of the Court's power under s 80(3) of the EPA Act in the circumstances of the case. 3. The Commissioner erred in law in misconstruing or misdirecting herself as to the matter to be considered under s 79C of the EPA Act for the purposes of imposing the proposed deferred commencement condition under s 80(3) of the EPA Act. 4. The Commissioner's finding (at [46]) that there were "too many unresolved issues" was a finding made without evidence.
I heard argument on that s 56A appeal on 18 December 2015, and reserved my decision.
At the time of the two hearings, an amendment to the framework was in train, and/or under consideration.
The proposed variation had not been placed on exhibition or formally endorsed by Council, let alone the Minister, at the time of the Class 1 hearing (see Dixon C at [10] - [12]).
The statutory documents were on exhibition at the time of the s 56A hearing (T18.12.15 p5, LL4 - 10).
However, there has clearly been progress regarding the strategic planning framework since the s 56A hearing on 18 December 2015.
Before me now, Counsel note (subs par 21) that "the strategic planning documents have been amended, after public exhibition, to reflect the DA for which consent is now sought".
However, the amendment has not yet been made by the Minister.

The Present Application(s)

As I was concluding the preparation of my judgment on the appeal, I received from Welsh's solicitor, Mr Carl Reid, the following letter dated 24 May 2016: We act for Welsh Property Consulting Pty Limited in this matter. In this matter our client appealed to the Court from a decision of Dixon C on the basis that approval should have been granted to our client's development application by the Court with a deferred commencement condition relating to the finalisation of a planning amendment. The issue was whether the planning amendment was imminent and certain and whether the Court should have granted approval on that basis. The Hills Shire Council has now informed the Department of Planning and Environment of its in principle support for the SEPP Amendment. As a result the Council has now agreed that the planning amendment is imminent and certain and that it is appropriate for the parties to, by consent, make application to the Court for the following: 1. Set aside the Judgment by Dixon C; 2. Discontinue the Appeal; 3. Approach His Honour for Consent Orders to approve the Application in accordance with the Court draft conditions. ...
My Associate responded to both parties on 24 May, saying: The judgment on this s.56A appeal is nearing completion, but His Honour has now stopped working on it, pending clarification of the parties' positions. His Honour suggests that the appeal be listed for mention as soon as convenient.
The reserved s 56A appeal was then relisted before me on 1 June 2016, and the parties were represented by the lead counsel who appeared at the hearing of the s 56A appeal (respectively Mr Ian Hemmings SC for Welsh, and Mr Michael Wright for Council).
They jointly argued and submitted that I could and should rely upon Rule 36.15(2) of the Uniform Civil Procedure Rules 2005 ("UCPR") to make the following orders (draft Short Minutes of Order 1 June 2016): 1 The s56A Appeal in proceedings 15/10750 is discontinued. 2 The Orders made on 30 July 2015 by Dixon C in Welsh Property Consulting Pty Ltd -v- The Hills Shire Council [2015] NSWLEC 1288 are set aside. 3 Development consent is granted for the relocation of the Mt Carmel Road and associated works as detailed in Development Application DA 1328/2014Z (sic - 1328/2014/ZB) lodged with The Hills Shire Council on 2 May 2014 subject to the conditions in Annexure A to these Orders. 4 The Applicant is to pay the Respondent's costs of the proceedings before Dixon C in the agreed amount of $ 5 The Applicant is to pay the Respondent's costs of the s56A appeal in the agreed amount of $
I confirmed that I had ceased preparation of my judgment, and I directed the parties to make joint written submissions to be dealt with in chambers.
The documents now before me ([3] above) were subsequently filed.

The Evidence

The only new evidence before me on the joint application is the latest planning report (document (e) in [3] above).
The planning experts agree (par 8) that the "imminent gazettal of the SEPP Amendment" resolves all the issues" in the case, and (par 9) that "there are no merit issues in respect of the appeal with the making of the SEPP Amendment subject to conditions".
They agree (par 10) that the 300 m westerly relocation of Mt Carmel Road "is an appropriate location for the main access road onto Windsor Road".
Lee ("PL") states (pars 11 to 15) that: 1. the SEPP Amendment has specifically been made to accommodate the proposed new location of Mt Carmel Road as shown in the Development Application before the Court, and subject of the s 56A appeal. 2. the amendments to the SEPP - The Hills Growth Centre Precincts Plan were exhibited from 30 November 2015 to the 7 February 2016. 3. the Department of Planning and Environment has consulted with all the relevant public authorities with the exhibition of the SEPP Amendment, and it is understood that there are no outstanding matters in respect of the making of the Amendment. 4. the Department of Planning and Environment Housing Land Release Team Leader Evelyn Ivinson by email dated 31st May 2016 states: "As discussed this afternoon, we are finalising the draft SEPP amendment package for Mt Carmel Road this week with a view to submitting to Bruce for approval, and progression to the Minister. I'm unable to provide a timeframe for approval other than to say I will track progress of the package as best I can". 1. the position of the Department of Planning with respect to the SEPP amendments is that the package of planning amendments are progressing through the Department to the Minister for Planning for gazettal.
Hawkins ("BH") states (pars 16 and 17) that: 16. ... relevant statutory provisions have been complied with, being the following (as originally listed in the statement of facts and contentions): a) SEPP (Sydney Region Growth Centres) 2006 Appendix 11 - The Hills Growth Centre Precinct Plan b) SEPP 55 Remediation of Land c) SEPP (Infrastructure) 2007 d) Box Hill and Box Hill Industrial Precincts Development Control Plan 2014 17. ... there were two submissions received in response to the advertising/ notification of the original development application. The first submission raised no objection and supported the development and the development of the precinct more broadly. The second submission raised concerns with the bridge crossing in the new location and the effect this may have on flood conditions (levels) upstream of the bridge. The bridge has been moved downstream, further away from the objector's property. Any changes to flood conditions (levels) are localised to the area around the relocated bridge and will have no effect on the objector's property with respect to both flooding and orderly development. The authors of the two submissions ought to be notified of the Court's decision.
The joint report goes on to note (pars 18 -24): 18. The authors of the two submissions were notified of both the Section 34 conference and the hearing and did not seek to be heard. They were therefore not notified of the Section 56A appeal, nor the current proposed course of action. 19. PL & BH are of the opinion that the amendments to the SEPP - The Hills Growth Centre Precincts Plan are certain to be made and gazettal is imminent. 20. PL & BH are of the opinion that as the SEPP Amendment is imminent and certain it is a relevant matter for consideration under Section 79C of the Environmental Planning and Assessment Act 1979 (as amended). 21. PL & BH state that as the SEPP Amendment is imminent and certain, Contention No. 1 of the appeal is no longer a reason for refusal. 22. PL and BH have agreed upon the draft conditions of consent issued by the Council for the proposed development. 23. PL and BH note that Contention 2 had been satisfied prior to the hearing of the matter before Commissioner Dixon. 24. PL and BH agree that having properly assessed the application and having regard to the requirements of s79C of the Environmental Planning and Assessment Act that there are no reasons why consent should not be granted.

Statutory provisions

Rule 36.15 of the UCPR provides: General power to set aside judgment or order (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. (2) 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.
Section 56A(2) of the Court Act, relied upon as an ancillary source of necessary power, provides: (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit.

The submissions

The parties agree (subs par 11) that the relevant circumstances in which the Court now finds itself are that there is: • a significant development facilitating the release of hundreds of hectares of residential land; • to which there was one objection, where the objectors did not seek to be heard at the s 34 conference or at the hearings and therefore no third party rights will be affected by these orders; • which has the approval of all relevant authorities; and • is now consistent with the imminent and certain strategic planning documents; where • those planning documents have been amended specifically to facilitate the development proposed in the DA. and that it is (par 12) "in the public interest for the Court to facilitate the just, quick and cheap disposition of these proceedings, by the grant of consent, if that course is available to the Court".
They then jointly submit that such a course is "available to the Court", which could order (par 13): (1) the discontinuance of the s 56A appeal, by consent (with consequential costs orders); (2) the setting aside of Commissioner Dixon's decision, by consent (with consequential costs orders); and (3) the making of consent orders - for the grant of development consent - in the merit appeal proceedings.
They submit (par 19) that: To set aside the judgment does not require the Court to find error in the Commissioner's decision, to the contrary, it merely reflects the change in circumstances since the Commissioner delivered judgment.
Once the Commissioner's judgment and orders are set aside, the (again) undetermined merit appeal is (par 20) "capable of being dealt with by the making of consent orders", relying upon the planners' revised evidence, and giving no notice to the original objectors to the DA (par 21) - the amendments to the Strategic documents were placed on public exhibition so there would be no denial of public participation, and both parties now seek consent.
The joint submissions continue (pars 25 and 26): 25. Having regard to (1) the detailed assessment of the matter by the Council (originally raising two Contentions); (2) the satisfaction of Contention 2 prior to the hearing before the Commissioner; (3) the change in circumstances such that Contention 1 no longer arises and (4) the development proposed clearly achieves the objects set out in s5 of the Environmental Planning and Assessment Act 1979, the Court can be satisfied that it is appropriate for consent to be granted. 26. Finally the parties have agreed upon the conditions pursuant to which consent should be granted.
The joint submissions then argue (pars 27 - 30) that s 56A(2) empowers the Court to do as requested by the parties.
Counsel submit (par 16) that Rule 36.15(2) lacks some of the complexity of other rules, save that it creates a discretionary power.
They rely (par 18, and footnote 6) on the decision of Barrett J in Vero Insurance Ltd v Nicejade Pty Ltd ("Vero") [2010] NSWSC 1407, as applied by Pepper J in this Court in Wollongong City Council v Frames & Trusses (NSW) Pty Limited ("Wollongong") [2014] NSWLEC 60.
I should make some brief observations about those two cases.

Consideration

In Vero, Barrett J, by consent, set aside an order His Honour had made directing reinstatement of the registration of a deregistered company. The relevant parties had "settled all disputes between them" ([6]), and "positively desired" ([12]) that the orders be set aside under Rule 36.15(2). Two non-parties (ASIC and a liquidator) were affected, and had not sought to be heard ([9]). His Honour found "no reason" in the circumstances of that case to decline to exercise his discretion.
In Wollongong, Pepper J was asked by the parties to vary consent orders Her Honour had made. Eventually the application came forward under Rule 36.15(2) ([12]). Her Honour referred to those parts of Vero ([12] - [14]) which discussed the advent, existence, and effect of that rule. No third party rights were affected ([16]). Her Honour found "no reason" to decline the application.
Under UCPR Rule 12(1)(a), the s 56A appeal may be discontinued, by consent.
Given such consent, and the recent agreement between the parties that the project should go ahead, and their agreement about the costs of the appeal, I am prepared to make the orders in NOM(b) ([3] above).
However, the Class 1 appeal had been determined by the making of final orders by Dixon C.
The s 56A appeal having now been discontinued, and no legal error having been found in Dixon C's reasoning, she may well have been correct to have agreed with the Council that the whole appeal was "premature" (T18.12.16 p23, L50).
Even now, the new planning regime still awaits the Minister's determination - the Minister is under no obligation to say a simple "yes" or "no", and may condition his/her decision on the requested Amendment.
In any event, the learned Commissioner's orders stand.
The parties argue that, despite granting leave to discontinue the s 56A appeal, I should make a further order under s 56A(2), effectively upholding the appeal, by consent, but giving no reasons.
Subsection (2) of s 56A is normally relied upon by the Court to make an exclusionary remitter, or amend some conditions, when an appeal is upheld: see, e.g., Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; 126 LGERA 339, at [17] and [23], and The Hills Shire Council v Sales Search Pty Ltd [2013] NSWLEC 103.
I note that Vero, and Wollongong, concerned revisitation, by consent, of some consent orders, made in more adversarial contexts than Class 1 appeals, and I can otherwise find no authority for doing what the parties now ask. I have serious reservations about the public policy implications of such an intervention.
In the present, changed circumstances, it seems to me that the parties have two options, both of which are more appropriate than what they have asked the Court to do: 1. They could ask Dixon C to reopen the Class 1 matter. However, there are well-established and serious limitations on the Court's exercise of any discretion to so intervene, as to which see, e.g. Teoh v Hunters Hill Council and Another (No. 3) [2009] NSWLEC 121, as subsequently reviewed by the Court of Appeal, and Young v King (No 4) [2012] NSWLEC 236, at [364] - [391]; OR 1. Welsh could submit to Council a new DA, whether before or after any decision is made by the Minister on the presently proposed amendments to the relevant planning regime. The community should and ought then be given the opportunity to consider the proposal in the environment of the proposed/implemented new regime.

Conclusion

I consider the proper response of the Court is to grant leave to discontinue the s 56A appeal, to make the costs order sought in that respect, and to dismiss the NOM brought in the Class 1 matter.
I make the following orders: 1. By consent, and with the leave of the Court, the appeal brought by the Applicant pursuant to s 56A of the Land and Environment Court Act 1979 (matter no. 2016/150109, formerly 15/10750) is discontinued. 2. The Applicant is to pay the Respondent's costs of that s 56A appeal in the agreed sum of $32,000. 3. The appeal books filed in the s 56A appeal may be returned. 4. The Notice of Motion recently filed jointly by the parties in the Applicant's Class 1 appeal (matter no. 2016/166969, formerly 14/11090) is dismissed, with each party to pay its own respective costs of it. 5. The Council's Notice of Motion of 13 August 2015, seeking its costs of the Class 1 appeal, is stood over to the Registrar's list on Thursday 28 July 2016.

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. Decision last updated: 14 July 2016

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