Karmel Property Trust trading as Karmel and Co Pty Ltd v Inner West Council

[2022] NSWLEC 30

Land and Environment Court

New South Wales

Medium Neutral Citation:

Karmel Property Trust trading as Karmel & Co Pty Ltd v Inner West Council [2022] NSWLEC 30

Hearing dates:

24 March 2022

Date of orders:

24 March 2022

Decision date:

24 March 2022

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders that the applicant's notice of motion filed 17 March 2022 is dismissed.

Catchwords:

PRACTICE AND PROCEDURE – discontinuance of proceedings – appeal against development control order – discontinuance by consent on terms – terms unrelated to proceedings – terms that discontinuing party comply with later development control order not the subject of the appeal – application to vary terms of later development control order – no application to set aside discontinuance – no power to vary terms of later development control order until discontinuance set aside – no power to vary terms of later development control order not the subject of the appeal – no utility in setting aside discontinuance

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979 s 34

Uniform Civil Procedure Rules 2005 r 12.1

Category:

Procedural rulings

Parties:

Karmel Property Trust trading as Karmel & Co Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
Mr A Urbanski (litigant in person as agent for Karmel Property Trust trading as Karmel & Co Pty Ltd) (Applicant)
Mr S Turner (solicitor) (Respondent)

Solicitors:
Self-represented (Applicant)
Inner West Council (Respondent)

File Number(s):

2019/93504

Publication restriction:

Nil

Judgment

1. The applicant by notice of motion filed on 17 March 2022 seeks orders in relation to building work it is undertaking at premises at 673–677 Darling Street, Rozelle. The orders sought in the notice of motion are in these terms:

"1. That the closed-off section of the building be opened to allow occupancy.

2. That the ground floor be closed off and progressively opened as works are completed on a room-by-room basis in that area. Time for completion be extended to 12 months from the date of this order.

3. That work required be reviewed and audited as agreed between the parties."

2. The applicant is the owner of the premises.

3. The prompt for the applicant applying for these orders was the notice of discontinuance that was filed in these proceedings in court. The applicant had brought proceedings appealing against a development control order issued by Inner West Council on 25 February 2019. The development control order required the applicant to carry out an audit of the building's compliance with the Building Code of Australia (BCA) and undertake specified fire safety works. The appeal against the development control order was filed on 25 March 2019.

4. The appeal progressed through the Court, including holding a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979, and fixing the appeal for hearing on 7 and 10 August 2020. Meanwhile, however, the applicant carried out the BCA audit and fire safety works required by the development control order.

5. On 5 August 2020, the Court was informed by the applicant and the Council that the development control order, the subject of the appeal, had been complied with. As a consequence, there was no utility in continuing to a hearing of the proceedings and the Court vacated the hearing. The applicant foreshadowed that it would discontinue the proceedings. The Court stood the matter over until 12 August 2020 to allow the applicant to file a notice of discontinuance and to seek the consent of the Council to that discontinuance.

6. On 12 August 2020, the applicant filed in court a notice of discontinuance to which the Council consented. The Council purported to consent to the proceedings being discontinued on terms which were incorporated in the notice of discontinuance. The terms were as follows:

"1. The Council consents to the discontinuance of these proceedings upon the undertaking of the applicant to comply with the Development Control Order dated 5 August 2020 attached as annexure A hereto (the Order).

2. The Council acknowledges in its consent to the discontinuance that the undertaking of the applicant to comply with the Order will be revoked if the property known as 673-677 Darling Street, Rozelle (the Premises) ceases to be used by the applicant as residential premises identified as Class 3 under the Building Code of Australia."

7. The reference to "Development Control Order dated 5 August 2020" was a reference to a different and later development control order to the development control order issued on 25 February 2019 (which I will now refer to as the 2019 DCO). The development control order dated 5 August 2020 (which I will now refer to as the 2020 DCO) required the applicant to undertake different work to the work which had been required by the 2019 DCO and which the applicant had by this time carried out. The 2020 DCO required the applicant to carry out other building rectification works, fire safety upgrade works, and access works. The date by which the applicant was required to carry out these works was 12 March 2021.

8. The applicant had a right of appeal against the 2020 DCO to the Court, but it has not exercised that right. The proceedings before the Court only involved an appeal against the 2019 DCO. Hence, the discontinuance of the proceedings involved discontinuance of the appeal against the 2019 DCO only.

9. This fact is why the Council's purported term of consent to the proceedings being discontinued was irregular. Whilst the Council could consent to the discontinuance on terms under r 12.1 of the Uniform Civil Procedure Rules 2005, those terms had to relate to the proceedings and the subject matter of the proceedings and operate against the discontinuing party. Commonly, the terms will be that the discontinuing party pay the costs of the other party to the proceedings or undertake not to bring subsequent proceedings raising the same claim as was raised in the discontinued proceedings. The Council did not impose any such terms on its consent to the discontinuance. Instead, the Council sought to impose as a term of its consent to the discontinuance of the proceedings involving an appeal against the 2019 DCO, that the applicant undertake to comply with the 2020 DCO, which was not the subject of the appeal in the proceedings. That term of consent did not relate to the proceedings or the subject matter of the proceedings.

10. Moreover, the 2020 DCO already had the force of law - the applicant was required by the Environmental Planning and Assessment Act 1979, to comply with the 2020 DCO. The applicant could only be relieved from the statutory obligation to comply with the 2020 DCO by exercising its right to appeal against it and the Court on appeal revoking or varying the 2020 DCO. As I have said, such an appeal has never been brought by the applicant.

11. The notice of discontinuance consented to by the Council took effect upon it being filed with the Court on 12 August 2018. At that time, the proceedings were at an end. The applicant, by its notice of motion filed on 17 March 2022, seeks nevertheless to obtain orders as if the proceedings have not been discontinued and are still on foot. But the proceedings are no longer on foot.

12. Before the Court can make any orders in the proceedings which have been discontinued, including the orders sought in the applicant's notice of motion, the applicant must apply to revive the proceedings by setting aside the discontinuance of the proceedings. Such application should be by notice of motion seeking an order that the Court set aside the discontinuance of the proceedings. The notice of motion may need to be supported by affidavits explaining the circumstances and the reasons justifying the Court setting aside the discontinuance of the proceedings.

13. Whilst the Court may have power to set aside the discontinuance, if such an application were to be made by the applicant, there may be no utility in the Court doing so. There are two main reasons. First, the orders sought in the applicant's notice of motion seek, in effect, to vary the terms and operation of the 2020 DCO, including allowing the applicant more time to carry out the works required by the 2020 DCO. As I have observed, the prompt for the applicant seeking to vary the terms and operation of the 2020 DCO may well be the terms on which the Council purported to give consent to the applicant discontinuing the proceedings appealing against the 2019 DCO, which was that the applicant undertake to comply with the 2020 DCO. That term was irregular and not able to be imposed as a term of the Council consenting to the applicant discontinuing the appeal against the 2019 DCO.

14. Nevertheless, even if the Court were to set aside the discontinuance of the appeal against the 2019 DCO, any term on which the Council consented to the discontinuance would also be set aside. There would then be no extant undertaking by the applicant to comply with the 2020 DCO, in respect of which the Court could make any order varying the undertaking by, for example, allowing the applicant more time to comply with the 2020 DCO.

15. The setting aside of the discontinuance, and any term on which the Council purported to consent to the discontinuance, would revive the proceedings, but the subject matter of the appeal would remain the 2019 DCO. The applicant has never appealed against the 2020 DCO. Any determination by the Court of the revived appeal could therefore only concern the 2019 DCO and whether it should be revoked or varied or confirmed, not the terms of the 2020 DCO.

16. The second reason why there is no utility in setting aside the discontinuance of the proceedings is that the reason for the discontinuance of the proceedings will still remain. The reason the applicant discontinued the proceedings was that, by the time of the discontinuance, the applicant had already complied with the 2019 DCO so that there no longer was any utility in the applicant seeking for the 2019 DCO to be revoked or varied. This position still pertains. There is no utility in the Court determining the applicant's appeal against the 2019 DCO, even if the Court were to set aside the discontinuance so as to revive the appeal.

17. Accordingly, even if the discontinuance of the proceedings were to be set aside, the Court would have no power in the revived proceedings to make any order in relation to the 2020 DCO or the applicant's undertaking to comply with the 2020 DCO, including the orders sought in the applicant's notice of motion. There is no utility in these circumstances in setting aside the discontinuance.

18. The Court would only have power to rescind or vary the terms of the 2020 DCO in fresh proceedings by the applicant appealing against the 2020 DCO. However, any such proceedings appealing the 2020 DCO may be out of time. The applicant would need to check whether the time to appeal against the 2020 DCO has expired and, if so, whether the Court has power to extend the time to appeal. Any such appeal and any such application for leave to appeal will need to be made in different proceedings to these proceedings. The Court has no power in these proceedings to allow the applicant to appeal the 2020 DCO.

19. For these reasons, the applicant's notice of motion must be dismissed. The Court has no power to determine the notice of motion unless and until application is made and granted to set aside the discontinuance of the proceedings. Even if the discontinuance were to be set aside, however, the Court would have no power to make the orders sought in the notice of motion to, in effect, vary the terms and operation of a development control order, the 2020 DCO, that is not the subject of the appeal in these proceedings.

20. The Court orders that the applicant's notice of motion filed 17 March 2022 is dismissed.

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Decision last updated: 29 March 2022