Lilac Pty Ltd v City of Ryde Council (No 2)

[2021] NSWLEC 1280

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lilac Pty Ltd v City of Ryde Council (No 2) [2021] NSWLEC 1280

Hearing dates:

5 and 13 May 2021

Date of orders:

24 May 2021

Decision date:

24 May 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The orders sought in the Notice of Motion dated 26 April 2021 are made.

(2) Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the orders made in Lilac Pty Ltd v City of Ryde Council [2021] NSWLEC 1135 are amended to substitute Annexure A and B with those annexures attached.

Catchwords:

PROCEDURE – Notice of Motion – Uniform Civil Procedure Rules – Rule 36.17 - Registration of consent on NSW planning portal

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.18, 4.20, 8.13
Environmental Planning and Assessment Regulation 2000, cll 100, 296

Uniform Civil Procedures Rules 2005, r 36.17

Cases Cited:

El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) [2013] NSWLEC 25

Lilac Pty Ltd v City of Ryde Council [2021] NSWLEC 1135

Category:

Procedural rulings

Parties:

Lilac Pty Ltd (Applicant)
City of Ryde Council (Respondent)

Representation:

Solicitors:
J Reid (Applicant)
C Reed (Solicitor) (Respondent)

File Number(s):

2019/25398; 2019/254350

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings came before me on a Notice of Motion (Motion) filed on 26 April 2021 that was listed for hearing on 5 May 2021. The Motion seeks to amend the orders made in my judgment in the substantive proceedings: Lilac Pty Ltd v City of Ryde Council [2021] NSWLEC 1135 (the Judgment), pursuant to the Court’s power at rule 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR).

2. The Judgment upheld the Applicant’s appeal against the refusal by the City of Ryde Council (the Respondent) of Development Application No. LDA/2019/0172 for the part demolition of an existing boatshed and ancillary structures on the site, the removal of trees and remediation works at 20 Waterview Street, Putney, subject to the conditions of consent.

3. The amendment now sought by the Applicant, unopposed by the Respondent, is described in the affidavit of Mr Joshua Palmer, filed 26 April 2021 (the Affidavit) annexed to the Motion as follows:

“That Pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 the clerical formatting error made by the parties to Annexures ‘A’ and ‘B’ to the orders in the judgment of the Court of 23 March 2021 are corrected by re-engrossing the Orders at pages 117 to 145 of the Exhibit marked ‘JRP-1’.

4. The Applicant submits that the conditions of consent prepared by the parties in the proceedings were not provided to the Court in the correct form. Most relevantly, as the conditions were not prepared in the form of the Court’s template, the date of determination and date from which consent takes effect were not stipulated.

5. The parties jointly submit that uncertainty arises from the form of conditions relied on by the Court, because the conditions of consent filed in the proceedings and marked as exhibits during the hearing, were prepared prior to the development of the Court’s template published on 25 February 2021, and failure to provide those conditions in the form of the Court’s template may be regarded as an administrative and clerical error or omission of the parties.

6. The parties jointly submit that as the relevant development applications were lodged prior to the planning portal being operational, the Respondent is now unable to upload the development consent to the planning portal, resulting in uncertainty as to the date on from which the consent takes effect.

7. Section 4.20 of the Environmental Planning and Assessment Act 1979 (EPA Act) states that development consent takes effect from the date of the registering of the consent on the NSW planning portal (the planning portal).

8. Similarly, s 8.13(3) of the EPA Act regards the date from which development consent resulting from a decision of the Court on appeal takes effect to be that date on which the decision of the Court is registered on the planning portal.

9. That said, cl 296 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) has the effect, at subcl (1)(a), of saving the requirement for a development application to be lodged on the planning portal for any development application lodged in respect of land in a relevant local government area before 31 December 2020.

10. This circumstance was succinctly put in the form of a notice posted on the website of the Land and Environment Court on 25 February 2021 which relevantly states:

“Under s 8.13(3) of the Environmental Planning and Assessment Act 1979, a development consent granted as a result of a decision on appeal by the Court takes effect when the decision is registered on the NSW Planning Portal. If, however, the development application was made before this provision came into effect, it might not have been registered on the NSW Planning Portal, preventing the consent authority from being able to upload the Court’s decision.

To address this problem, cl 296 of the Environmental Planning and Assessment Regulation 2000 provides that applications lodged before a certain date need not be registered on the NSW Planning Portal in order to take effect.

…”

11. Development Application No. LDA/2018/0223 was lodged by the Applicant on 4 June 2018 and was the subject of proceedings no. 2019/25398.

12. Development Application No. LDA/2019/0172 was lodged by the Applicant on 30 May 2019, and was the subject of proceedings no. 2019/254350.

13. Both development applications were lodged by the Applicant in respect of land in a relevant local government area prior to 31 December 2020, and cl 296 of the EPA Regulation saves the requirement for an application for development consent to be registered with the planning portal. It follows, in my view, that the requirement to register a notice of determination in respect of the saved application for development consent is likewise saved.

14. That said, once a determination is made, s 4.18 of the EPA Act requires notification of the decision to be made in accordance with the EPA Regulations. Clause 100 of the EPA Regulation includes, at subcl (1)(e), a requirement for the date from which any development consent that is granted takes effect to be included in the notification.

15. I am of the view that the date from which the grant of consent takes effect is on, and from the date fixed by, the Court’s grant of development consent in accordance with s 8.13(5) of the EPA Act. As the judgment was delivered on 23 March 2021, the date from which the development consent takes effect is, in my reading of the provisions, 23 March 2021.

16. Notwithstanding this view, the parties submit, and I accept, that correction of the error or omission described at [5] by the re-engrossing of conditions of consent now annexed to the Affidavit does not prejudice the parties, and does not impact the substance of the consents granted, nor the substance of the orders made in the judgment.

17. The Applicant relies on r 36.17 of the UCPR which relevantly provides:

36.17   Correction of judgment or order (“slip rule”)

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

18. In my view, the exercise of r 36.17 of the UCPR in the circumstances of this case, is consistent with the general application of the rule as set out by Pepper J, at [12] of El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) [2013] NSWLEC 25, to the effect that “the rule generally applies to the correction of clerical errors or accidental omissions or slips, that is to say, mistakes upon which no real difference of opinion can exist and upon which no further exercise of a court's discretion is required.”

19. I accept that the uncertainty now claimed by the parties to be an obstacle in giving effect to the grant of consent on 23 March 2021 arises from a clerical formatting error made by the parties to Annexures ‘A’ and ‘B’ to the orders in the judgment of the Court of 23 March 2021 that is cured by re-engrossing the orders at pages 117 to 145 of the Exhibit marked ‘JRP-1’.

20. The Court orders:

1. The orders sought in the Notice of Motion dated 26 April 2021 are made.

2. Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the orders made in Lilac Pty Ltd v City of Ryde Council [2021] NSWLEC 1135 are amended to substitute Annexure A and B with those annexures attached.

……………………

T Horton

Commissioner of the Court

Annexure A (230844, pdf)

Annexure B (225402, pdf)

**********

Decision last updated: 24 May 2021