Karmel and Co Pty Limited v Sydney City Council

[2000] NSWLEC 262

Land and Environment Court

of New South Wales

CITATION:	Karmel & Co Pty Limited v Sydney City Council [2000] NSWLEC 262
PARTIES:	APPLICANT: Karmel & Co Pty Limited RESPONDENT: Sydney City Council
FILE NUMBER(S):	10914 of 2000
CORAM:	Lloyd J
KEY ISSUES:	Practice & Procedure :- application for time extension after time-limited consent had expired - procedural defect cured nunc pro tunc - consent orders
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96 Sydney Regional Environmental Plan 26 - City West cl 22
CASES CITED:	Emmanuel v Australian Securities Commission (1997) 188 CLR 114
DATES OF HEARING:	31/10/2000
DATE OF JUDGMENT:	10/31/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr N D Howie (Solicitor) SOLICITORS: Wilshire Webb RESPONDENT: Mr D T Miller (Barrister) SOLICITORS: PricewaterhouseCoopers Legal

JUDGMENT:

2

THE LAND AND Matter No: 10914 of 2000

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 31 October 2000

Karmel & Co Pty Limited

Applicant

v

Sydney City Council

Respondent

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The question in this case is whether there is a valid application before the Court. The facts may be briefly described.

2. On 31 August 1999 Commissioner Murrell gave judgment in proceedings in class 1 of the Court’s jurisdiction in which the Commissioner granted consent to a development application for the use of premises as a boarding house but limited to a period of twelve months, pursuant to clause 22 of Sydney Regional Environmental Plan 26 - City West. That clause enables a temporary use of premises for such limited time as is stipulated by the consent authority. The consent granted by Commissioner Murrell expired, therefore, on 31 August this year.

3. On 14 August this year the applicant lodged a development application with the council to continue the court-approved temporary use as a boarding house for between one and three months. On 6 September this year the council issued a formal notice of determination of that application, which it refused. On 18 September the applicant appealed to this Court against that determination.

4. The primary submission of the respondent is that what is sought is in effect an application under section 96 of the Environmental Planning and Assessment Act 1979 seeking a modification of the consent granted by the Court. The respondent further submits that the development application that was lodged on 14 August this year was not a proper development application; that the application should properly have been made to the Court; that the application now made to the Court should be viewed as an application under section 96; that the application made to the Court was made after the consent granted by Commissioner Murrell had expired; and, therefore, the Court has no jurisdiction. As I understand the final submission, the Court has no jurisdiction to entertain an application lodged after the expiry of a time-limited consent.

5. The position, I think, can be cured by way of enrolling the application to the Court nunc pro tunc to cure what is in effect a procedural defect or irregularity in this case. I refer in particular to the High Court case of Emmanuel v Australian Securities Commission (1997) 188 CLR 114, which explains the circumstances in which procedural defects can be cured nunc pro tunc . That can be cured simply by enrolling the application to the Court so as to have the same legal force and effect as if it had been enrolled on the earlier day of 31 August instead of 18 September. That would then validate what has been done and the Court would then be possessed of jurisdiction to entertain the application for modification.

6. The respondent has indicated that, provided the Court is satisfied that it has jurisdiction, it does not oppose the applicant’s application for a three month extension of time to the consent granted on 31 August 1999 and which expired on 31 August 2000. That being so, it would seem that the matter can be simply resolved by consent.

7. The formal order is that pursuant to section 96 of the Environmental Planning and Assessment Act the consent granted by the Court on 31 August 1999 is extended by a further three months so as to expire on 30 November 2000.