Hastings Point Progress Association Inc v Tweed Shire Council (No 2)

[2009] NSWCA 404

New South Wales

Court of Appeal

CITATION:	Hastings Point Progress Association Inc v Tweed Shire Council (No 2) [2009] NSWCA 404
HEARING DATE(S):	On the papers
JUDGMENT DATE:	10 December 2009
JUDGMENT OF:	McColl JA at 1; Young JA at 1; Basten JA at 13
DECISION:	1. Motion dismissed. 2. Costs of the motion reserved. 3. Appellant to file and serve written submissions and any evidence in support addressing the issue of the costs of the appeal and the motion on or before 18 December 2009. 4. Second respondent to file and serve written submissions addressing the issue of the costs of the appeal and the motion on or before 15 January 2010. 5. Appellant to file and serve any written submissions in reply on or before 22 January 2010.
CATCHWORDS:	PROCEDURE – judgments and orders – amending orders – application to amend orders from dismissing appeal to allowing appeal – inherent jurisdiction of Court to correct order – Uniform Civil Procedure Rules 2005 (NSW), 36.17
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW) State Environmental Planning Policy (Seniors Living) 2004 Tweed Local Environmental Plan 2000 Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Consequential orders
CASES CITED:	Brooker v Friend & Brooker Pty Ltd (No 2) [2008] NSWCA 129 Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285; (2009) 168 LGERA 99 Newmont Yandal Operations Pty Ltd v J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411
PARTIES:	Hastings Point Progress Association Inc - Appellant Tweed Shire Council - First Respondent Aeklig - Second Respondent
FILE NUMBER(S):	CA 40279 of 2008
COUNSEL:	P Greenwood SC/A Pickles – Appellant P J McEwen SC/Dr S Berveling – Second Respondent
SOLICITORS:	Environmental Defender’s Office, Lismore – Appellant Marsdens Law Group – First Respondent Stacks/Gray, Murwillumbah – Second Respondent
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40785/07
LOWER COURT JUDICIAL OFFICER:	Pain J
LOWER COURT DATE OF DECISION:	6 June 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	[2008] NSWLEC 180

CA No: 40279/08
LEC No: 40785/07

McColl JA
Basten JA
Young JA

10 December 2009

Hastings Point Progress Association Inc v Tweed Shire Council & Anor (No 2)

Judgment

1 McCOLL and YOUNG JJA: Judgment in this matter dismissing the appeal by majority (McColl and Young JJA, Basten JA dissenting) was delivered on 11 September 2009: Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285; (2009) 168 LGERA 99 (“Hastings 1”). By motion filed on 13 October 2009 the appellant sought orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 36.17 vacating the orders made on 11 September 2009, and in lieu allowing the appeal and requiring the second respondent to pay its costs of the appeal. In the alternative to the costs order it proposed, the appellant sought an order that the costs order be vacated with the parties being given the opportunity to be heard on costs. This was because if successful on its primary application that the appeal should be allowed, the respondent had not hitherto resisted an order that costs should follow the event.

2 The parties then exchanged written submissions pursuant to directions made by the Registrar of the Court of Appeal. In its submissions in reply, the appellant indicated its application was not limited to reliance on UCPR 36.17. This was wise as prima facie the application was outside the ambit of the slip rule. The appellant sought to amend its motion to indicate it also sought to invoke the inherent jurisdiction of the Court to correct an order which did not reflect the intent and meaning of the Court: Newmont Yandal Operations Pty Ltd v J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411.

3 The parties advised the Registrar that they were content for the Court to deal with the notice of motion on the basis of the written submissions, although in the event it became necessary for the question of costs to be argued (paragraph [12], second respondent's submissions), counsel sought the opportunity to make further written submissions in that respect.

4 Broadly speaking, the appeal concerned the interaction between cl 17 of the State Environmental Planning Policy (Seniors Living) 2004 (“SEPP – SL”) and cl 8 of the Tweed Local Environmental Plan 2000 (“TLEP 2000”) and the effect of s 36 of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”). The majority concluded that cl 8 mandated refusal of the application and was, therefore inconsistent with cl 17 of SEPP – SL: Hastings 1, per McColl JA (at [8]); per Young JA (at [94]); cf Basten JA (at [51] – [55]).

The order dismissing the appeal

5 The appellant contends the substituted order for which it contends is supported by reference to Basten JA’s statement that “[i]t was common ground between the parties that if the appellant were correct and cl 8(1) applied, the decision of the Land and Environment Court should be set aside and the matter remitted to that Court to determine whether in fact the Council had failed to be satisfied of the matters identified in cl 8(1)”: Hastings 1 (at [13]).

6 The respondent challenges the appellant’s reliance upon Basten JA’s observation, contending that it should be read literally, that is to say, to mean that the course there identified as common ground flowed if the appellant successfully challenged the proposition that there was inconsistency between cl 8 and the SEPP-SL.

7 In our view the appellant has not identified any matter which would attract the relief it seeks. The order that the appeal be dismissed reflected the appellant’s failure to sustain its central argument that cl 8 of the TLEP 2000 was not inconsistent with the SEPP – SL.

8 We should add that in dealing with the application on its merits, we are not to be taken as acknowledging that the inherent jurisdiction referred to in Newmont Yandal was attracted. There is public interest in the final disposal of appeals as soon as possible. The Court expects that if a party considered that there is some inadvertent error in the court’s reasons, the same will be raised when judgment is delivered or within 14 days thereafter. The Court would usually only intervene in the clearest case after that period.

Costs

9 At the close of submissions on the appeal, the appellant asked the Court to reserve liberty to apply on the issue of costs on the basis there may be public interest questions which would need to be addressed by evidence if necessary. This was overlooked when judgment was delivered and, regrettably, counsel who were present when judgment was delivered did not draw the Court’s attention to the oversight. The respondent does not object to that course being pursued now, notwithstanding that no application for costs relief was made until more than a month after judgment was delivered.

10 The appellant also asks that the existing costs order be vacated. It is not appropriate to do that at this stage. Whether or not that course should be taken will depend on the court’s consideration of the written submissions.

11 Save as to the issue of costs, the motion should be dismissed. Having regard to the fact the appellant is being given leave to address the issue of costs, it is appropriate to reserve the costs of the motion too with the intent that the written submissions to be filed as to the costs of the main appeal also address the issue of the costs of the motion.

Orders

12 The following orders should be made:

1. Motion dismissed.

2. Costs of the motion reserved.

3. Appellant to file and serve written submissions and any evidence in support addressing the issue of the costs of the appeal and the motion on or before 18 December 2009.

4. Second respondent to file and serve written submissions addressing the issue of the costs of the appeal and the motion on or before 15 January 2010.

5. Appellant to file and serve any written submissions in reply on or before 22 January 2010.

13 BASTEN JA: I agree that the parties should have an opportunity to provide written submissions (and evidence if appropriate) in relation to the issue of costs of the appeal. I agree with the directions proposed in the joint judgment giving effect to that conclusion.

14 So far as the motion filed on 13 October 2009 sought orders vacating the orders made on 11 September, and in place thereof allowing the appeal with costs, I express no view, as the orders proposed were those which I would have made in accordance with my judgment delivered on that date: see Brooker v Friend & Brooker Pty Ltd (No 2) [2008] NSWCA 129 at [94].

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