Mars City Pty Ltd v Burwood Council

[2020] NSWLEC 1683

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1683

Hearing dates:

21 December 2020

Date of orders:

24 December 2020

Decision date:

24 December 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The notice of motion filed on 9 December 2020 is dismissed.

Catchwords:

PROCEDURE – Notice of Motion – Uniform Civil Procedure Rules – Rule 36.16

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979
Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

Mars City Pty Ltd (Applicant)
Burwood Council (Respondent)

Representation:

Counsel::
A Gadiel (Solicitor) (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2019/337884

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings came before me on a Notice of Motion (Motion) filed on 9 December 2020 that was listed for hearing on 21 December 2020. The Motion seeks to amend the orders made in my judgment in the substantive proceedings: Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1585 (the Judgment), pursuant to the Court’s power at rule 36.16 of the Uniform Civil Procedure Rules 2005 (UCPR).

2. The Judgment upheld the Applicant’s appeal against the deemed refusal by the Burwood Council (the Respondent) of Development Application No. DA/2019/68 for construction of a 20-storey boarding house with car parking, retention of the existing commercial building, and stratum subdivision at 4 Railway Parade, Burwood.

3. The amendment to the orders sought by the Applicant is described in the affidavit of Ms Adrienne McLoon, filed 9 December 2020 (First Affidavit) annexed to the Motion as follows:

“The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 forthwith.”

4. The Applicant submits that the Court is required, as far as possible, to completely and finally determine all matters in controversy between the parties in accordance with s 22 of the Land and Environment Court Act 1979 (LEC Act), and the Court has the power, under s 23 of the LEC Act, to make orders of such kinds as the Court thinks appropriate.

5. In this case, where the Court has made orders and delivered judgment, the Applicant relies on r 36.16 of the UCPR which relevantly provides:

36.16   Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

…

(3A)  If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

…

The Applicant’s position

6. According to the Applicant, the orders sought in [3] seek to give effect to s 4.20 of the Environmental Planning and Assessment Act 1979 (EPA Act) which provides that development consent has effect on and from the date of the registering of the consent on the NSW planning portal (the planning portal).

7. Following amendments to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) that commenced on 1 July 2020, cl 102(1)(a) of the EPA Regulation provides for the Respondent to register a notice of determination within 14 days after the date of determination.

8. It is submitted that the planning portal is now operational as is evident in screenshots appended at Annexure H of the First Affidavit, and Annexures A, B, D, E and F of Ms McLoon’s affidavit dated 18 December 2020 (the Second Affidavit).

9. The Judgment was delivered on 26 November 2020, and the 14 day period for the registering of the consent by the Respondent passed on 10 December 2020. As the 14 day period has now passed, the Applicant seeks the Court to order that the Respondent publish a notice of determination on the planning portal ‘forthwith’, in the first instance, or within a period of 2-3 days in the alternative.

10. The Applicant submits that the Court has made orders similar to those now sought in respect of development consent to be registered on the planning portal (Annexures J, K and L, First Affidavit).

11. Relevantly, the Respondent has registered two such notices of determination on the planning portal (Annexure H, First Affidavit).

The Respondent’s position

12. Mr Shneider, for the Respondent, read the affidavit of Mr Brian Olsen filed with the Court on 16 December 2020.

13. In summary, the Respondent submits that its use of the planning portal commenced in January 2020 at which time, an applicant seeking to lodge a development application with the Respondent was directed to lodge the development application using the planning portal.

14. Applications that predated this direction and which had been lodged directly with the Council, as was the case here, were not allocated an identification number on or by the planning portal and so such an identification number does not exist against which a notice of determination can be registered by the Respondent.

15. While the Respondent accepts the circumstances summarised above are not ideal, it has attempted to resolve this aspect of the planning portal by seeking assistance from the Department of Planning, a response to which is still pending.

16. To this end, the Respondent does not oppose the amending of the orders in the Judgment, on the proviso that the wording in respect of timing is not ‘forthwith’, which has the flavour of a mandatory injunction. Instead, wording such as ‘as soon as practicable’ would be acceptable to Respondent.

Conclusion   

17. I am satisfied that notice of motion was filed with the Court within the period of 14 days after the Judgment was delivered, and so the Court may, by operation of r 36.16(3A) of the UCPR, determine the application to set aside the judgment and orders “as if the judgment or order had not been entered”. This enlivens the power found at r 36.16(1) for the Court to set aside a judgment or order before entry of the judgment or order.

18. However, while it is open to the Court to do so, I find there is no justification to set aside the Judgment, or vary the orders contained therein under r 36.16(1) of the UCPR for the following reasons:

1. Firstly, I am satisfied that the Judgment the Applicant now seeks the Court to vary, completely and finally determines those matters that were principally in dispute between the parties, at the time Judgment was delivered in the substantive proceedings. There is a general rule in favour of the finality of final judgments and orders. That there may now be administrative functions to be exercised subsequent to the delivery of Judgment, which were not evident during the substantive proceedings is not, in my view, a reason to set aside or vary the orders contained in the Judgment.

2. Secondly, while the Court’s power to determine the development application the subject of the substantive proceedings derives from s 4.16(1) of the EPA Act, I am not convinced that that power includes the power to direct the Respondent to register that consent on the planning portal. To the extent the Court may exercise all the functions and discretions of a consent authority under s 8.14 of the EPA Act, this power is for the purpose of hearing and disposing of an appeal, which does not appear to me to extend to the administrative functions that follow the determination of an appeal, such as the registering of the consent on the planning portal.

3. Finally, while I have some sympathy for the plight of applicant’s who may well expect the planning portal to function in a consistent and streamlined manner in all local government areas, I am doubtful that the impediment to the Respondent’s operation of the planning portal is a matter that can or should be cured by varying the orders made in the Judgment in the substantive proceedings.

19. The Court orders:

1. The notice of motion filed on 9 December 2020 is dismissed.

……………………

T Horton

Commissioner of the Court

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Decision last updated: 24 December 2020