Weston Investment Group Pty Ltd v City of Parramatta Council

36.16 Further power to set aside or vary judgment or order: (cf SCR Part 40, rule 9) (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. …… (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. …… (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

1. The Applicant sought the following Orders in its Class 1 Application: "1 Modification application PAN-183032 to correct minor errors and misdescriptions in condition 1 of Schedule 1 of development consent DA/267/2018 is approved. "2 The appeal is upheld. "3 Deferred commencement conditions 1 and 2 of schedule 1 of development consent DA/267/2018 granted by the Respondent on 15 October 2019."
2. In par [57] of the Judgment I noted that on 21 February 2022 the Respondent approved Modification Application PAN -182032 to correct minor errors and misdescriptions in deferred commencement condition 1 of Schedule 1 of DA/267/2018 now DA/267/2018B.
3. The Applicant's Order No. 1 was no longer pressed. Order No. 2 became Order No. 1 in the Judgment.
4. The parties, by consent, request the following amendment to Order No. 2 in the Judgment: "In accordance with s 39(2) of the Land and Environment Court Act 1979, Deferred Commencement Condition No. 1 and 2 of Schedule 1 in DA/267/2018B is satisfied conditional upon the Applicant carrying out the following works:" ……
5. Relevantly, deferred commencement condition No 1 provided - "Submission to Council of suitable easement(s) registered with the NSW Land Registry Service that benefit the land comprising the newly created lot resulting from the consolidation (known as 15-19 Weston Street) of existing lots: Lot 1 in DP 128283, Lot 1 in DP 727953 and Lot 2 in DP 128283 allowing the drainage of water within an area 1.2 metres wide over a downstream property (Lot 200 in DP 1205703)." And, deferred commencement condition No 2 (i) provided - "(i) Relocation of the OSD facility."
6. In Ex 1 the Respondent raised 2 contentions: 1. Contention 1: that the modification application should be refused. This contention was satisfied by the Respondent granting consent to the modification on 21 February 2022. 2. Contention 2: …."the Applicant has not met the requirements of deferred commencement Condition 2 of Schedule 1…."
7. The compliance with deferred commencement condition 1 is found in Ex 2 tabs 4, 5, 6, 7, 8 and 9.
8. In par [16] of the Judgment I noted that the drainage engineers (Mr S Haddad for the Applicants and Mr G Gavel for the Council) agreed that subpar (i) of deferred commencement condition 2 of Schedule 1 of the DA had been met.
9. Both deferred commencement conditions 1 and 2(i) of Schedule 1 to the DA had been met prior to the commencement of the hearing.
10. Clearly, the Applicant has satisfied deferred commencement conditions 1 and 2(i) in Schedule 1 of DA/267/2018B.
11. The Applicant filed a supporting affidavit to its Notice of Motion by Mr T Nesbitt-Foster sworn on 21 June 2022. Paragraph 18 of Mr Nesbitt-Foster's affidavit states: "I have reviewed the judgment and the Court's orders and believe that the Court has not dealt with deferred commencement condition 1 or 2(i) or deferred commencement as is required under section 76(4) of the Environmental Planning and Assessment Regulation 2021. I believe that the Court's decision is that the Applicant's have not been given the benefit of - or a clear pathway to obtaining - an operational consent."

Environmental Planning and Assessment Regulation 2021 76 Deferred commencement consent (1) A development consent with a deferred commencement, as referred to in the Act, section 4.16(3), must be clearly identified as a "deferred commencement" consent, whether by using the expression, referring to that section or otherwise. (2) A deferred commencement consent must clearly distinguish between - (a) conditions that relate to matters about which the consent authority must be satisfied before the consent can operate (the relevant matters), and (b) other conditions. (3) A consent authority may specify the period within which the applicant must produce sufficient evidence to the consent authority to enable it to be satisfied about the relevant matters. (4) If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether it is satisfied about the relevant matters. (5) If the consent authority does not notify the applicant within 28 days after the applicant produces the evidence, the consent authority is taken to have notified the applicant, on the day on which the period expires, that it is not satisfied about the relevant matters. (6) Subsection (5) applies for the purposes of the Act, section 8.7 only.

1. The Applicant has moved a motion to amend the Orders pursuant to r 36.16(1) and (3A) of the UCPR on the basis that it was not heard on the decision of the Court not to deal with deferred commencement conditions 1 and 2(i). The Applicant submits that it was denied the ability to inform the Court that, in the absence of an order covering all deferred commencement consent conditions, there would be no clear way for the development consent to become operational. The Applicant requests the court to exercise its discretion to correct this 'readily identifiable error' as it is within the scope of r 36.16(1) and (3A).
2. In determining the appropriateness of exercising its discretion, the Applicant relies on the judgment of the Court of Appeal in Owlstara v State of New South Wales (No. 2) [2017] NSWCA 334 (Owlstara).
3. The relevant paragraphs of Owlstara are as follows: "[5] The notice of motion was filed within the Uniform Civil Procedure Rules 2005, r 36.16(3A), and r 36.16(1) applies. That rule, which is to be understood by reference to the overriding object in the Civil Procedure Act 2005 (NSW), s 56 has "a serious but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal……: Majak v Rose (No 5) [2017] NSWCA at [12] (Leeming and Simpson JJA, Emmett AJA). "[6] Rule 36.16(1) is subject to the same limitations as the Court's inherent power to set aside or vary a judgment or order that has been made but not entered: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No. 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [10]. Accordingly, as Mason CJ explained in Austodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6: "What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts of the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
4. Whilst I accept the reasoning in Owlstara, I do not accept that the Applicant was not heard in relation to the evidence on compliance with deferred commencement condition 1 and 2(i) of Schedule 1 of the DA. However, I note the motion has been made by the Applicant with the consent of the Respondent, and I accept the proposed amendment as it was an accidental omission. I shall amend the Order 2 in accordance with r 36.17 as the relevant omission is an 'accidental omission'.

Orders

1. The Court Orders that Order No (2) in the judgment in Weston Investment Group Pty Ltd v City of Parramatta Council [2022] NSWLEC 1304 is amended as follows: 1. Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 Order No (2) made on 15 June 2022 be amended as follows: "(2) In accordance with s 39(2) of the Land and Environment Court Act 1979, Deferred Commencement Condition No. 1 and 2 in DA/267/2018B is satisfied conditional upon the Applicant carrying out the following works: 1. Replace the timber mulch on the easement flow path in 9-11 Weston Street with pebbles or like material. 2. Raise the timber edge adjacent to the rear fence by 40mm within the easement at 9-11 Weston Street. 3. Construct a 120mm concrete kerb in accordance with Ex D and the plans in Ex 3 (SW300 Rev F and SW204 Rev F) within the easement at the rear of 12-16 Hope Street, Rosehill." ……………………… M Peatman Acting Commissioner of the Court 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: 20 July 2022