Carramatta Holdings Pty Ltd v The Coast Protection Board - [2014] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CARRAMATTA HOLDINGS PTY LTD AND ORS v THE COAST PROTECTION BOARD AND ORS
[2014] SASC 24
Judgment of The Honourable Justice Blue
3 March 2014
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - VARIATION AND SETTING ASIDE OF CONSENT JUDGMENT
In April 1998, the appellants allegedly breached the Development Act 1993 (SA) by clearing sand dunes in a coastal conservation zone without development approval. In March 2010, a Commissioner of the Environment, Resources and Development Court made a consent order under subsection 85(6) of the Development Act 1993 (SA) requiring the appellants to remedy the breach in terms of a rehabilitation plan prepared by Mr Bebbington.
In March 2013, the appellants applied to the Environment, Resources and Development Court to vary the consent order in light of a report by Mr Bebbington expressing the opinion that, due to revegetation and other changes since his original report, a complete revision of the rehabilitation plan was required.
A Judge of the Environment, Resources and Development Court upheld a contention by the respondents in the nature of a demurrer and refused to reopen the proceedings. The Judge held that the Court had no power to vary the consent order in the absence of a fact or circumstance vitiating the underlying agreement which led to the consent order. The Judge held that, in any event, a discretion to vary would not be exercised due to delay by the appellants.
Held by Blue J (allowing the appeal):
1. The Environment, Resources and Development Court has power pursuant to subsection 85(17) of the Development Act 1993 (SA) to vary or revoke any order made under section 85, the only requirement being that the Court considers it appropriate to do so ([46] and [57]).
2. The appellants identified a ground arguably capable of justifying a variation to the consent order, namely a material change in circumstances at the site ([70]).
3. The Judge did not have before him sufficient material to determine that the discretion under subsection 85(17) should be exercised to refuse the application due to delay ([72]-[74]).
4. Matter remitted to the Environment, Resources and Development Court for hearing and determination on the merits of the application to vary the consent order ([79]).
Development Act 1993 (SA) ss 32, 33, 85(17); Development Regulations 2008 (SA) sch 2 cl 5, referred to.
Harvey v Phillips (1956) 95 CLR 235; ICI Australia Operations Pty v Trade Practices Commission (1992) 38 FCR 248; Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2005] SASC 135; (2005) 239 LSJS 187; Players Pty Ltd (in liq) (recs apptd) v Clone Pty Ltd [2013] SASCFC 25; (2013) 115 SASR 547, discussed.

CARRAMATTA HOLDINGS PTY LTD AND ORS v THE COAST PROTECTION BOARD AND ORS
[2014] SASC 24
LVD Appeal.
BLUE J:

This is an appeal against an order of a Judge of the Environment, Resources and Development Court made in July 2013 refusing an application to reopen proceedings and to revoke or vary a consent order which had been made by the Court in March 2010.
The original proceedings were brought by the Coast Protection Board, the applicant in the original proceedings and the respondent on appeal, against Carramatta Holdings Pty Ltd and Scott Rowlands, the respondents in the original proceedings and appellants on appeal. For ease of expression, I refer to Carramatta Holdings Pty Ltd and Mr Rowlands collectively as “Carramatta”. The original proceedings were brought under section 85 of the Development Act 1993 (SA) (“the Act”) seeking an order that Carramatta remedy a breach of the Act. The alleged breach was unapproved development by excavating and levelling sand dunes at Ceduna Waters.
On 31 March 2010, a Commissioner of the Environment Court made an order by consent in the original proceedings that Carramatta had breached the Act and was consequently required to rehabilitate the sand dunes in accordance with a plan prepared by Mr Bebbington.
On 22 March 2013, Carramatta applied to the Environment Court to reopen the matter so as to revoke or vary the consent order. The application was made on various grounds. One of the grounds was that there had been a material change of circumstances at the site necessarily requiring an alteration to the rehabilitation plan the subject of the consent order.
The Judge of the Environment Court held that he had no power to revoke or vary the consent order on the ground of changed circumstances and in any event would have exercised his discretion against reopening the matter.
The appeal raises the following issues:
1.Does the Environment Court have power under subsection 85(17) of the Act or alternatively rule 4(1) of the Environment, Resources & Development Court Rules (SA) (“the Rules”) to vary a consent order on the ground of changed circumstances?
2.If so, did Carramatta’s application disclose a ground arguably capable of justifying a variation order?
3.If so, was Carramatta bound to fail on the exercise of discretion whether to make a variation order?
Background
Mr Rowlands is the managing director and sole shareholder of Carramatta Holdings Pty Ltd. The company owns 831 hectares of land alongside cliffs at Bosanquet Bay, approximately 5 kilometres from Ceduna in a locality known as Ceduna Waters. In 2008, the land was owned by the third respondent Peter Betts. Carramatta Holdings Pty Ltd purchased the land from Mr Betts, becoming the registered proprietor of the land in August 2009.
In due course Carramatta divided the land into two components. The first component comprised 192 hectares and abutted the cliff tops (“the Coastal Land”).[1] The Coastal Land was zoned Coastal Conservation under the District Council of Ceduna Development Plan. The balance of the land comprised 639 hectares (“the Subdivision Land”). The Subdivision Land was zoned Rural Living under the Development Plan. Carramatta intended to subdivide the Subdivision Land into 384 allotments.
[1] This land was ultimately comprised in Certificate of Title volume 6046 folio 833.
In April 2008, Carramatta cleared and levelled 5.5 hectares of sand dunes and spread the sand over approximately 13 hectares forming part of the Coastal Land. Upon intervention by the District Council of Ceduna (“the Council”) and the Coast Protection Board (“the Board”), Carramatta ceased these works. In May 2008, Mr Rowlands informed officers of the Council and the Board that he was not aware that he required development approval to undertake the excavation or approval to clear native vegetation.
It is common ground that the works undertaken in April 2008 comprised “development” within the meaning of the Act because they involved excavation and/or filling within coastal land of more than 9 cubic metres[2] and that they required approval by the relevant authority being the Council.[3]
[2] Development Regulations 2008 (SA) sch 2 cl 5.
[3] Development Act 1993 (SA) ss 32-33.
In about April 2008, the Native Vegetation Council via the Department of Water, Land and Biodiversity Conservation served upon Carramatta a direction under section 31E of the Native Vegetation Act 1991 (SA) requiring the cessation of all earthworks.
In July 2008, the Council issued an enforcement notice under subsection 84(2) of the Act requiring that Carramatta remedy the breach of the Act.
On 16 October 2008, the Board instituted proceedings in the Environment Court under section 85 seeking, inter alia, an order under section 85(6)(d) that Carramatta make good the breach of section 32 of the Act by restoring the impacted land. The Board joined as respondents Mr Betts as the registered proprietor of the Coastal Land and the Council as the relevant authority for the approval of development under the Act.
The Board’s application was supported by an affidavit by Ms Detmar, a Scientific Officer at the Department of Environment and Heritage, who provided support to the Board. In that affidavit and by other documents, the Board identified the extent of the sand dunes which it considered were impacted by the works undertaken in April 2008 and interim work needed to preserve the position on the Coastal Land.
On 7 November 2008, the Environment Court made interim orders to require Carramatta to collect sand which had originated from the levelled sand dunes and move it to designated stockpile areas. On 10 and 11 November 2008, Carramatta undertook sand removal work. Later in November 2008, the parties agreed on further defined sand removal works.
In September 2009, having been commissioned by the Council, Mr Bebbington prepared a report (“the 2009 Bebbington report”) setting out an assessment and rehabilitation plan (“the Rehabilitation Plan”), which involved the construction of three large sand dunes on the impacted land. They were designated A, B and C from north to south and comprised approximately 0.7 hectares, 0.4 hectares and 1.6 hectares respectively. Construction of the dunes would require approximately 13,500 cubic metres of sand, to be overlayed by approximately 7,500 cubic metres of clay to bind the sand. There would then be revegetation of the reconstructed sand dunes and surrounding areas with native plants.
On 31 March 2010, a Commissioner made the consent order under section 85 of the Act. Terms of the consent order included the following:
1.     The First and Second Respondents shall revegetate, rehabilitate and preserve        vegetation on the “impacted land” … in accordance with the [2009 Bebbington    Report] (The Plan).
2.     The Plan may be amended where such amendment is agreed in writing by the       Applicant and the First, Second and Fourth Respondents.
3.     The project as described in the Plan is to be managed by Mr Larry Bebbington or another suitably qualified consultant as agreed in writing by the Applicant and the      Fourth Respondent.
4.     The First and Second Respondents must implement any recommendations that may       be made from time to time by the consultant managing the project.
5.     The project is to commence at a time recommended by the consultant managing the       project.
The implementation of the Rehabilitation Plan necessarily entailed the removal of native vegetation in the area the subject of rehabilitation, including regrowth since April 2008.
Before the making of the consent order, Carramatta had applied on 27 January and again on 24 March 2010 to the Native Vegetation Council for consent under the Native Vegetation Act 1991 (SA) to clear native vegetation for the purpose of the Rehabilitation Plan. For reasons unexplained, the Native Vegetation Council did not grant consent to the clearance until 24 April 2012. For the purpose of the present appeal, it is not suggested that the delay was the fault of Carramatta.
In 2010, Mr Bebbington was commissioned by the Council to provide another report in connection with the proposed clearance and regeneration of native vegetation. He produced a report in December 2010 which he revised in February 2011. That report was not tendered on the current application.
In 2011, the Council commissioned Mr Bebbington to review the Rehabilitation Plan in light of subsequent changes to the site and in February 2012 Mr Bebbington produced an updated report (“the 2012 Bebbington report”). He expressed the opinion that, due to regeneration and other changes since September 2009, a complete revision of the Rehabilitation Plan was required.
In March 2012, the 2012 Bebbington report was provided to Carramatta and the Board. On 28 March 2012, the Crown Solicitor on behalf of the Board and the Native Vegetation Council wrote to Carramatta’s solicitors rejecting Mr Bebbington’s suggestion that the Rehabilitation Plan needed to be completely revised and insisting upon immediate implementation of the Rehabilitation Plan.
On 10 April 2012, Carramatta’s solicitors wrote to the Crown Solicitor referring to the 2012 Bebbington report and reiterating their view that the original Rehabilitation Plan needed to be revised.
In June 2012, the Residents of Ceduna Waters Incorporated made submissions to the Board, to which the Board replied in July 2012. The residents apparently supported a variation to the Rehabilitation Plan.
In July 2012, Carramatta engaged Mr Bebbington on the basis of an hourly rate to provide advice in respect of the rehabilitation works. There is no evidence that Mr Bebbington has performed any work pursuant to that engagement.
In July and August 2012, the Crown Solicitor wrote to Carramatta stating that the Board expected immediate implementation of the Rehabilitation Plan.
By October 2012, the Council decided to engage Mr Bebbington to provide a status report relating to the natural environment of Ceduna Waters. In October 2012, the Board wrote to the Council. The Board expressed disappointment that the Council had commissioned the 2012 Bebbington report and expressed the view that there was no need to commission a further status report.
In November 2012, the Council wrote to the Board supporting the submissions of the Residents of Ceduna Waters Incorporated. The Council said that it did not support the Rehabilitation Plan given the changed circumstances and recommended that the Board take a more practical approach in dealing with the issue.
In March 2013, Carramatta filed in the Environment Court an application to reopen the original proceedings and sought an order revoking or in the alternative varying the consent order. The application to revoke[4] the consent order was made on the following grounds:
1.the Board lacked jurisdiction to bring the original proceedings and induced Carramatta to consent to the order on the basis of a mistake or non-disclosure concerning the Board’s powers in respect of land more than 100 metres from the coast;
2.as a result of erroneous calculations on the part of Ms Detmar, the Board in November 2008 misrepresented to Carramatta the volume of sand required to be removed and stockpiled on an interim basis and this induced Carramatta to undertake further sand removal works in November 2008 at a substantial extra cost;
3.Ms Detmar required additional removal of sand and stockpiling which was undertaken in late November 2008 without any authority to do so;
4.the Board misrepresented to Carramatta the shape and size of the original sand dunes to be restored and this induced Carramatta to consent to the March 2010 orders.
[4] It appears that Carramatta sought revocation and in the alternative variation on some or all of these grounds.
The application to vary the consent order was made in the alternative to the revocation application and was made on the ground that changed circumstances at the site required a variation to the Rehabilitation Plan along the lines of the 2012 Bebbington report.
Carramatta’s application was listed for hearing on 11 July 2013. There was a lack of clarity on the part of counsel for the parties as to precisely what was listed for hearing. Counsel for Carramatta in particular treated the hearing as only the first stage, involving the question whether Carramatta should have permission to reopen the proceedings, with the question whether there should be an order for revocation or variation to be considered at a second stage. This is reflected in the ultimate reasons for judgment of the Judge where he described the application as being one “to reopen the proceedings” and made an order that “the application to reopen is refused”. This confusion is relevant for reasons which later appear.
In any event, at the commencement of the hearing, it was suggested by the Judge and agreed by both parties that the hearing should be confined to a demurrer by the Board that, accepting Carramatta’s evidence and case at its highest, there was no basis in law to reopen the proceedings.
The reasons of the Judge
The Judge identified “common law rules” applying to a court of record and rule 4(1)(d) of the Rules as sources of power for the Environment Court to set aside or vary the consent order. The Judge held that each of these powers was limited where a consent judgment embodies an underlying compromise agreement between the parties, such that a consent judgment will only be set aside on grounds sufficient to render the underlying contract void or voidable.[5]
[5] [2013] SAERDC 37 at [18]-[26].
The Judge turned to the grounds relied upon by Carramatta to set aside the order summarised at [29] above. The Judge concluded that each ground was untenable.[6] There is no challenge on appeal to those conclusions by the Judge. No question of revoking the order therefore arises on appeal.
[6] [2013] SAERSC 37 at [28]-[32], [33]-[34] and [40]-[43].
The Judge turned to the changed circumstances ground relied upon to vary the order. The Judge accepted that there had been changes to the local topography and the state of the vegetation of the land and accepted that there may be other ways to restore the land. However, he characterised the evidence as rising no higher than, in Mr Bebbington’s opinion, the Rehabilitation Plan could still be implemented and alternative options were only equally meritorious to the Rehabilitation Plan. He concluded that the fact that there may be other (possibly better) options did not mean that the Rehabilitation Plan could not be implemented or that the order should be set aside.[7]
[7] [2013] SAERDC 37 at [35]-[39].
Finally, the Judge said that, if he had been persuaded that the Court had power in the circumstances to reopen the proceedings, he would not have exercised his discretion to do so. He considered that, bearing in mind the public interest in the timely finalisation of proceedings, it was not in the interests of justice to reopen proceedings nearly three and half years after the consent order had been made.[8]
[8] [2013] SAERDC 37 at [44]-[46].
Power to set aside or vary an order
On appeal, both parties made submissions on the power of the Environment Court to revoke or vary a judgment which differed significantly from the submissions they made to the Judge below. On their part, Carramatta rely principally on subsection 85(17) of the Act and only in the alternative upon rule (4)1)(d) of the Rules. On its part, the Board does not contend that the power of the Environment Court to set aside or vary a judgment under rule 4(1)(d) is limited or fettered as such, but contends that the proper exercise of that discretion will always require a consent order based upon a compromise agreement being set aside only if the underlying agreement itself should be set aside.
Section 85 of the Act relevantly provides:
(1)Any person may apply to the Court for an order to remedy or restrain a breach of this Act or a repealed Act (whether or not any right of that person has been or may be infringed by or as a consequence of that breach).
...
(5)An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993.
(6)     If—
(a)     after hearing—
(i)    the applicant and the respondent; and
(ii)any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,
the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act or a repealed Act; or
(b)     the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard,
the Court may, by order, exercise any of the following powers:
(c)     require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach;
(d)     require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court;
(e)     cancel or vary any development authorisation (other than an authorisation granted by the Governor);
(f)     require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses;
(g)     if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages—
(i)if the applicant is a council and the Crown has not become a party to the proceedings—to the council;
(ii)     in any other case—into the General Revenue of the State.
...
(9)A relevant authority, and any person with a legal or equitable interest in land to which an application under this section relates, is entitled to appear, before a final order is made, and be heard in proceedings based on the application.
(10)If, on an application under this section or before the determination of the proceedings commenced by the application, the Court is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make an interim order under this section, the Court may make such an order.
...
(15)   The Court may order an applicant in proceedings under this section—
(a)     to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed;
(b)     to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (16).
...
(17)The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.
...

Carramatta contend that subsection 85(17) confers upon the Environment Court a plenary discretionary power to vary or revoke an order made under subsection 85(6), the only requirement being that the Court considers it appropriate to do so[9] and exercises the power in the public interest having regard to the objects of the Act.
[9] Development Act 1993 (SA) s 85(17).
The Board contends that, on its proper construction, the power conferred by subsection 85(17) is confined to the variation or revocation of an interim order made under subsection 85(10) or subsection 85(15). In the alternative, the Board contends that, where a consent order is made, particularly where an order is made by a member of the Court presiding over a conciliation conference, it will never be appropriate to revoke or vary the order unless the underlying agreement should be set aside under common law or equitable principles.
Scope of subsection 85(17)
Subsection 85(17) is expressed to confer a power to “vary or revoke an order previously made under this section.”
The wording of subsection 85(17) is apt to encompass an order made under subsection 85(6). Indeed, the primary purpose of section 85 is to confer jurisdiction upon the Environment Court to make a restraining, remedial, or compensatory order under subsection 85(6) in respect of breaches of the Act. Orders authorised under subsections 85(10) or 85(15) are purely ancillary to the principal relief sought by the applicant under subsection 85(6). It is an unlikely construction of the phrase “an order previously made under this section” that it does not refer to the primary order which the section empowers but only to secondary orders. This is reinforced by subsection 85(1) which identifies the primary purpose of the section as being to provide for applications for orders to remedy or restrain a breach of the Act.
In addition, powers to make interim and ancillary orders such as those conferred by subsections 85(10) or 85(15) would normally be construed as carrying with them the power to vary or revoke any such interim or ancillary order previously made. The position is analogous to section 37 of the Acts Interpretation Act 1915 (SA) which provides that a power to do an act is capable of being exercised from time to time as occasion requires. It is unlikely that the legislature considered it necessary to insert subsection 85(17) solely to empower the Court to revoke or vary orders which are only interim or ancillary of their nature.
Most importantly, section 85 covers a broad front of addressing the remedying or restraint of any breach of the Act. There are diverse types of breaches of the Act. Remedying a breach of the Act will sometimes involve taking a single, simple and final step. More often, remedying a breach will involve the Environment Court ordering the contravener to take a complex and dynamic set of actions over an extended time. This is exemplified by the present case, in which the 2010 consent order required Carramatta to take a complex series of successive steps, with later steps being dependent upon successful completion of earlier steps. When the Environment Court makes an order for remedial action, the purpose of subsection 85(6) would often be frustrated if the Court could exercise the power to identify and order the remedial action once only and were then functus officio, powerless to make further orders as circumstances evolved. Similarly when the Environment Court makes a restraining order, the purpose of subsection 85(6) would often be frustrated if the Court could not vary the restraining order as circumstances evolve. There is an obvious mischief addressed by subsection 85(17) in conferring upon the Environment Court an ongoing power to vary or revoke an order previously made under subsection 85(6) to achieve the very purpose of section 85.
In Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc,[10] Besanko J considered section 104 of the Environment Protection Act 1993 (SA). Section 104 confers upon the Environment Court power to make orders for remedying or restraining breaches of that Act in very similar terms and under a very similar structure to section 85 of the Act. Subsections 104(13) and 104(17) empower the Court to make interim and ancillary orders in identical terms to subsections 85(10) and 85(15) of the Act. Subsection 104(19) empowers the Court to revoke or vary an order previously made under section 104 in identical terms to subsection 85(17) of the Act. Besanko J expressed the obiter view that subsection 104(19) extended to final orders. He said:
I think the subsection is wide enough to embrace all orders made under s 104 including final orders, although the circumstances in which a final order will be set aside are likely to be quite limited.[11]
[10] [2005] SASC 135; (2005) 239 LSJS 187.
[11] (2005) 239 LSJS 187 at [16].
I reject the Board’s first contention that subsection 85(17) is confined in its application to interim and ancillary orders.
Confinement to setting aside underlying agreement
The Board’s second contention is that the discretion conferred by subsection 85(17) to revoke or vary an order will only be properly exercised, in the case of a consent order founded on an underlying agreement, when there are grounds to set aside the underlying agreement itself.
Subsection 85(5) requires an application under subsection 85(1) to be referred in the first instance to a conciliation conference under section 16 of the Environment, Resources and Development Court Act 1993 (SA). Section 16 relevantly provides:
(1)A relevant Act, or the rules, may provide that proceedings of a specified class must at first instance be referred to a conference under this section.
(2)The purpose of a conference is to enable the member of the Court presiding at the conference (appointed by the Senior Judge of the Court or selected in accordance with the rules) to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing.
...
(6)Any settlement to which counsel or any other representative appearing on behalf of the party to the proceedings agrees at the conference is binding on the party.
(7)     The member of the Court presiding at a conference may—
...
(d)     subject to subsection (9), record any settlement reached at a conference and make any determination or order (including an order under, or for the purposes of, a relevant Act) necessary to give effect to a settlement;
...
(9)     The member of the Court presiding at a conference—
(a)     must not accept a settlement that appears to be inconsistent with a relevant Act (but he or she may adjourn the proceedings to enable the parties to explore the possibility of varying the settlement to comply with a relevant Act); and
(b)     may decline to accept a settlement on the basis that the settlement may materially prejudice any person who was not represented at the conference but who has a direct or material interest in the matter.
...
In the present case, the consent order was made by the Commissioner as the presiding member at a conciliation conference between the parties pursuant to subsection 16(7)(d) of the Environment, Resources and Development Court Act. The Board contends that, in these circumstances, the consent order can or should only be revoked or varied if the underlying agreement should be set aside.
I reject the Board’s contention. In respect of the power conferred by subsection 85(17) to revoke an order, ordinarily it might be expected that a Court would not make a revocation order where the original order was made by consent founded on an underlying agreement without being persuaded that the underlying agreement should be set aside. Nevertheless it is theoretically possible that there might be circumstances in which it is appropriate to revoke the consent order even though there are no grounds to set aside the underlying agreement. Conversely, if an underlying agreement is set aside, it would ordinarily be appropriate to revoke the order and not merely to vary it.
The Board relies upon the decision of the High Court in Harvey v Phillips[12] and contends that the principle referred to in that case relating to the inherent jurisdiction of a superior court to set aside a judgment is applicable to the power conferred by subsection 85(17) of the Act. In Harvey v Phillips, Ms Harvey sued the estate of a surgeon for damages. Ms Harvey, albeit reluctantly, instructed her counsel to settle the claim for £4,000 and judgment was entered by consent for that amount. Ms Harvey applied to set aside the judgment on the ground that her counsel was not authorised to agree to the compromise. The Full Court found that her counsel acted within the scope of his actual authority and declined to set aside the judgment. The High Court affirmed the Full Court’s decision. Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ said:
But the difficulty which confronts the plaintiff is that her counsel when he signed the terms of settlement acted in accordance with the authority which she gave … in the circumstances of this case it does not appear to us that the Court possesses a discretion to set aside the compromise or to intercept the formal entry of judgment. … It is not a case where the assistance of the Court is sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it. In such a case assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract … in the case of the compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.[13]
[12] (1956) 95 CLR 235.
[13] (1956) 95 CLR 235 at 242-243 and 243-244.
The principle referred to in Harvey v Phillips does not preclude the Environment Court exercising discretion under subsection 85(17) of the Act to vary a consent order in circumstances in which the consent order was based on a compromise agreement and there is no basis to set aside that agreement. Harvey v Phillips deals with the inherent jurisdiction of a superior court and not a statutory power such as that conferred by section 85(17). The principle in Harvey v Phillips relates to an application to set aside a consent monetary judgment which is quite different to an application to vary a complex remedial order. In Harvey v Phillips, the High Court distinguished a situation in which the assistance of the Court is invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it. In the case of an order made under subsection 85(6), the position is analogous: the applicant for the remedial order is seeking the assistance of the Environment Court for the very reason that an order of the Court is fundamentally different to a mere contract. In many circumstances, such as the present, in which the Environment Court makes an order under section 85(6), the action required to be taken under the order will be complex, dynamic and extend over a lengthy time period. It cannot be said that, if there is a material change in circumstances, either party to the consent order would be acting in breach of the underlying agreement by making an application to the Court to exercise its discretion and vary the order due to changed circumstances.
Orders made by the Environment Court under subsection 85(6) cannot be compared to simple monetary judgments in favour of a plaintiff against a defendant in an ordinary civil action. The Act imposes restraints upon development in the wider public interest. An order restraining or requiring rectification of a breach is necessarily also made in the public interest notwithstanding that it might be made on the application of a private citizen or a public authority. It is inappropriate to transpose attitudes to monetary or other judgments in ordinary civil actions to orders made under section 85 of the Act.
In addition, subsection 85(1) confers standing on any person to apply to the Court for an order to remedy or restrain a breach of the Act. The Court might make an order under subsection 85(6) on the application of a private citizen and later a public authority or another private citizen might seek a variation of that order. It would be contrary to the purposes of section 85 if subsection 85(17) were construed in a manner such that the Environment Court could not exercise a discretion to vary such an order if that were appropriate. Moreover, the power conferred by subsections 85(1) and 85(6) is of such a nature that it is not necessarily exercisable once only for all time. For instance, there is no reason why the Environment Court could not make an order under subsection 85(6) restraining a breach of the Act and then subsequently on a fresh application (perhaps by a different applicant) make an order to remedy that breach.
In ICI Australia Operations Pty Ltd v Trade Practices Commission,[14] the Full Court of the Federal Court addressed the exercise of discretion in granting an injunction under subsection 80(1) of the Trade Practices Act 1974 (Cth). No question of a variation to an injunction arose on the appeal. Subsection 80(3) empowered a court to vary an interlocutory or final injunction and was similar in effect to subsection 85(17) of the Act on the construction which I have accepted at [46] above. Like section 85, section 80 potentially applied in diverse circumstances and potentially authorised injunctions requiring complex actions in dynamic circumstances. Gummow J and French J made obiter observations on the purpose of such a power to vary a final injunction. Gummow J said:
...s 80(3) authorises the court to rescind or vary not only an interim injunction but a final injunction. Such an order may become spent by reason of the temporal or other criteria specified in it for its operation (eg the duration of a patent). A subsequent change in the law in aid of which the injunction was granted or supervening impossibility of performance required by mandatory order, may provide special cases. But in other respects it remains a question under the general law as to when a final injunction may be discharged otherwise than by consent. However, the generality of the circumstances in which an injunction may be granted under s 80, made it highly expedient for the Parliament to place beyond doubt the power of the court to rescind or vary both interim or final injunctions.[15]
(Emphasis added)
and French J said:
There is room within the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. The possibility remains open, by virtue of s 80(3), that after a suitable period unmarked by further contravention the party restrained may apply to the court to rescind the order.
The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act.[16]
[14] (1992) 38 FCR 248.
[15] (1992) 38 FCR 248 at 266.
[16] (1992) 38 FCR 248 at 268.
Subsection 85(17) is not confined to conferring a power of revocation. It also confers upon the Court a power to vary a previous order. Changing circumstances of the type identified at [44] above are just as likely to apply in the case of consent orders as they are to orders made after a contested hearing. Indeed they are inherently less likely to have been anticipated in advance in the absence of a full hearing leading to the order. There is no reason to confine the broad power conferred by subsection 85(17) to vary a previous order as applying only to previous orders made after a contested hearing and against the opposition of the respondent to the proceedings.
I reject the Board’s second contention that, in the case of a consent order founded on an underlying agreement, the consent order should only be revoked or varied pursuant to subsection 85(17) if the underlying agreement should itself be set aside.
Power under rule 4(1)(d) of the Rules
Given my conclusion that subsection 85(17) was an available source of power, it is unnecessary to consider the availability of rule 4(1)(d) of the Rules.
However, I make some brief observations concerning the Board’s contentions as to the ambit of the rule.
Rule 4.1 provides:
The Court has power generally to give effect to the purpose of these Rules and, in particular may:
(d) ...correct, revoke or vary any order by a subsequent order; ...
The Board accepts that this rule empowers the Environment Court to revoke or vary a final judgment, but puts a similar contention to that put in respect of subsection 85(17) of the Act, namely that the discretion can only be properly exercised to revoke or vary a consent order based on an underlying agreement when the underlying agreement itself should be set aside.
In Players Pty Ltd (in liq) (rec apptd) v Clone Pty Ltd,[17] the Full Court considered the scope of rule 242(2) of the Supreme Court Civil Rules 2006 (SA). That rule is in similar terms to rule 4(1)(d) of the Rules. The Full Court took a broad view of the scope of the power conferred by rule 242(2) and said:
The Court’s discretion is only fettered by the words “if satisfied that the justice of the case so requires”. Insofar as the Judge further qualified or limited the discretion, we respectfully disagree.[18]
[17] [2013] SASCFC 25; (2013) 115 SASR 547.
[18] (2013) 115 SASR 547 at [69] per Gray, Blue and Stanley JJ.
Similar observations apply to rule 4(1)(d) of the Rules. In an ordinary case, it may be expected that a simple consent judgment for a monetary sum will only be set aside in the exercise of the discretion where the underlying agreement should be set aside. By contrast, in circumstances involving a consent order of the complexity and in the dynamic circumstances involved in the present case, the discretion under rule 4(1)(d) to vary a consent order is not confined to circumstances in which the underlying agreement should be set aside. When materially changed circumstances render it appropriate, the order may be varied.
Identification of a relevant ground
While the power conferred by subsection 85(17) is not confined or fettered in the manner contended by the Board, nevertheless it is incumbent upon an applicant seeking variation to identify a ground capable of rendering it appropriate for the Environment Court to vary the original order. This flows from the terms of subsection 85(17) which provide that the Court can only exercise the power of variation or revocation if it is appropriate to do so.
The reasons of the Judge on this question were as follows:
It is not in the least bit surprising to me that, given the passage of time, there would be changes to the local topography and the state of the revegetation of the land.
I will accept for present purposes that there may be other ways to restore the land. However, I note, from one of the affidavits of Rowlands, the following comments on this issue which he attributes to Mr Bebbington namely:
Mr Bebbington also made comment that given the effluxion of time, the original report/plan was only one option in dealing with the land especially as Ceduna had experienced two good growing seasons since 2010 when the order was made. (my emphasis)
And:
Mr Bebbington concluded our discussion by saying that he would need to visit the site prior to making any determination regarding the appropriateness of the original remediation plan but he viewed the site being left to re-occur naturally, as referred to in the second Bebbington report, as being equally meritorious. (my emphasis)
I also note that Ms Detmar, in her affidavit, summarised Mr Bebbington’s position as being that the Plan identified in the Consent Order could still be implemented.
The fact that there may now be other (possibly better) options does not mean that the Plan cannot be implemented and that the Order should now be set aside to explore other possible alternatives.[19]
(Footnotes omitted)
[19] [2003] SAERDC 37 at [35]-[39].

In his 2012 report, Mr Bebbington identified changes which had occurred since the Rehabilitation Plan was prepared. Those changes included sand loss from some areas in the vicinity of each of dunes A, B and C, sand accretion in other areas, extensive plant colonisation due to favourable weather and increased native fauna utilisation of the site.
Mr Bebbington expressed the opinion that construction of dune A per the original approved design was still possible with minimal disturbance to regenerating vegetation. However, he considered that it was necessary to modify the design for the rehabilitation of dunes B and C due to the changes. He said:
Sand accretion and Aeolian erosion has continued across the disturbed site with erosion through wind scour occurring predominantly at exposed areas surrounding Dune A and B and accretion occurring to the south east of all sections below Dune B. ... In excess of 50mm of sand has eroded from areas to the south and east of Dune B and has now been deposited at the base of Nitre Bush Shrublands to the east of Dune C. Whilst the accretion of sands at the base of shrubs in this area has enabled more seedlings to establish and has stopped the migration of sand off site to the south it has created extensive areas of small vegetated dune “knobs” between 60cm to 1m high. Whilst the creation of the vegetated knobs or hummocks is part of the natural cycles on coastlines it creates problems with on‑site vegetation clearance associated with dune construction. As previously stated the initial recommendation for clearance of regenerating sparse vegetation was to slash plants with a tractor mounted slasher. This is no longer possible in the majority of areas due to the presence of the vegetated sand hummocks which disallow the use of a slasher due to uneven terrain. The only alternative to slashing to produce the necessary working platform for dune reconstruction would be to clear vegetation and to level sand hummocks with a dozer. This technique will impact on adjacent vegetation and wildlife habitat and will potentially set back vegetation / habitat establishment adjacent to the dune footprints 3 years.
Alternative construction techniques involving minimal damage to revegetated areas may be possible for Dune B and potentially northern sections of Dune C which are more accessible via non‑vegetated scour points. However, altered dune design would require on‑site discussion with CMB staff for approvals as the footprint and height profiles of the constructed dunes would not match the dune profiles deemed acceptable by the CMB.
...
Due to the dynamic nature of the site and the extended time frames involved in progressing the rehabilitation the author believes that a complete revision of the dune re‑construction and site rehabilitation plan is required based on the identified points listed above. It is recommended that key personnel from the Coastal Management Board and the consultant organise a site meeting to address the identified issues and ratify any authorised alterations (if any) to the rehabilitation plan via the agencies involved in the compliance orders.
(Emphasis added)
The Judge did not refer to the 2012 Bebbington report specifically, but rather referred to conversations that Mr Bebbington had with Mr Rowlands and Ms Detmar which they summarised in their affidavits. The 2012 Bebbington report is unequivocal that it was impractical to undertake the original rehabilitation design and the Rehabilitation Plan required a complete revision due to the evolution of the site over the previous two and half years.
The statements made by Mr Bebbington to Mr Rowlands and Ms Detmar do not involve any retraction by Mr Bebbington of that opinion. He was reported as saying that the original plan could still be implemented. That is also the effect of the 2012 Bebbington report in that physically the same work could still be undertaken, but that does not detract from his opinion expressed in the report that it would have substantial detrimental effects and would not be appropriate. The same applies to Mr Bebbington’s reported comment that the Rehabilitation Plan was “only one option”. Mr Bebbington’s reported comment that taking no action at all and leaving the site to re‑occur naturally was “equally meritorious” does not detract from the opinion expressed in the 2012 Bebbington report because his report simply addressed the need for a revision of the Rehabilitation Plan. The revised plan could, in theory, involve leaving the site to re‑occur naturally.
The Judge heard the matter on the basis of a demurrer by the Board. Mr Bebbington was not cross‑examined on his report. No other expert evidence was adduced. It was not possible for the Judge to reach conclusion on a demurrer basis whether Carramatta had demonstrated that it was appropriate to vary the consent order. However, the clear opinions expressed by Mr Bebbington in his report were capable of supporting an ultimate conclusion that some variation to the Rehabilitation Plan and hence to the 2010 consent order was appropriate. The Judge erred in his conclusion that no arguable ground was demonstrated by the 2012 Bebbington report.
Discretion
The Judge expressed the view that, if he had been persuaded that the Court had power in the circumstances to reopen the proceedings, he would not have exercised his discretion to reopen the matter. He said:
The Order was made nearly three and a half years ago. Carramatta and Rowlands were legally represented throughout the proceedings leading up to the Consent Order being made. They instructed new and current solicitors (whom I observe were the solicitors for the council in these proceedings between 2008 and 2010) some nine months prior to bringing the proceedings and, even as recently as this week, sought to vacate the hearing to pursue other avenues with a view to keeping their options open to agitate a reopening of the case should those avenues not bear fruit.
In my judgment it would not now be in the interests of justice, bearing in mind the public interest in the timely finalisation of proceedings, to now permit these proceedings to be reopened to effectively conduct a fresh hearing on the merits. The application to reopen is refused.[20]
[20] [2013] SAERDC 37 at [45]-[46].
In relation to the exercise of discretion, the Judge referred only to a single factor, namely delay by Carramatta. It is clear that, when approaching the exercise of the discretion, the Judge was influenced by the fact that he had already concluded that Carramatta had not demonstrated any ground to justify a variation of the original order. Proper exercise of the discretion required the Judge to have regard to all relevant factors and not just the factor of delay.
Given my conclusion that the Judge erred in holding on a demurrer basis that there was no arguable ground for varying the consent order, his exercise of discretion was vitiated.
Upon the ultimate exercise of discretion under subsection 85(17), it will be necessary for the Court to weigh delay caused by Carramatta against all other relevant factors. On the material presently available, it appears that the delay for the first two years until April 2012 was due to the time spent by the Native Vegetation Council assessing Carramatta’s application to clear native vegetation and no suggestion has been made that Carramatta is responsible for that delay. The delay over the next six months has been explained (whether satisfactorily or otherwise) by Mr Rowlands in his affidavits. The delay since then has not been explained. On the face of the materials, Carramatta appears to be responsible for delay between around September 2012 and March 2013 and might be responsible for delays before and after that period. However, no final conclusion can be drawn on the present materials. In any event all factors, including differing reasons for delay, will need to be considered in the exercise of the discretion under subsection 85(17) if Carramatta demonstrates that it is otherwise appropriate to vary the consent order.
An alternative contention by the Board
The Board contends that, if the appeal were otherwise to be allowed, the Court should not exercise its discretion to vary the consent order because of the failure of Carramatta to formulate a proposed variation. However, that is not the way in which the parties conducted the matter before the Judge at first instance. The Board did not rely upon any failure by Carramatta to formulate a variation as a ground for its demurrer. The Judge did not address this question. In addition, as observed above, there was some confusion during the hearing before the Judge concerning the nature of the application being made. Carramatta at least appears to have treated the application as comprising a two stage process, with the first stage involving the question whether Carramatta should have permission to reopen the original proceedings and the second stage involving the question whether an order for revocation or variation should be made. The hearing was also complicated by the fact that, at that time, the primary order sought by Carramatta was to revoke the consent order on the grounds identified at [29] above and it was only in the alternative that Carramatta sought a variation of the consent order on the basis of changed circumstances. On appeal, Carramatta has abandoned those other grounds and relies only upon changed circumstances.
There is no need to adopt a two stage process insofar as Carramatta seeks a variation to the consent order on the ground of changed circumstances. The single issue is whether it is appropriate, within the meaning of subsection 85(17), to vary the consent order due to changed circumstances. No anterior issue of Carramatta having permission to reopen the proceedings arises.
I observed during the hearing of the appeal that Carramatta has not identified a proposed variation to the consent order and to the Rehabilitation Plan which it seeks and that it is incumbent on a party applying under subsection 85(17) to formulate the variation sought.
In the circumstances, it would be inappropriate to dismiss the appeal on the ground that Carramatta has failed to formulate a proposed variation of the consent order. As I have concluded that the appeal should be allowed, Carramatta will need to formulate the variation which it seeks upon the return of the matter to the Environment Court.
Conclusion
I allow the appeal. I set aside the order made by the Judge. I remit the matter to the Environment Court for hearing and determination of Carramatta’s application to vary the consent order under subsection 85(17) of the Act. I will hear the parties as to consequential orders.