McKenzie v Blue Mountains City Council

[2021] NSWLEC 1174

Land and Environment Court

New South Wales

Medium Neutral Citation:

McKenzie V Blue Mountains City Council [2021] NSWLEC 1174

Hearing dates:

26 March 2021

Date of orders:

12 April 2021

Decision date:

12 April 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1)   Pursuant to Uniform Civil Procedure Rule Part 36 Rule 17 Annexure A to the Order made on 27 September 2019 be amended.

(2)   The Site and Landscape Plan (as amended in red) in the table to condition 1 of Annexure A is to be Drawing No. 0401.30-020 Revision A dated 10 August 2018 as identified in Annexure A hereto.

Catchwords:

DEVELOPMENT APPLICATION – new shed – conciliation conference – agreement between the parties – orders

NOTICE OF MOTION – application to amend the Court’s orders to correct plan reference in condition of consent – amend landscape plan Uniform Civil Procedure Rules – rule 36.17

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, and 8.7

Land and Environment Court Act 1979, s34

Uniform Civil Procedure Rules 2005, r36.17

Category:

Procedural rulings

Parties:

David McKenzie (First Applicant)
Lynn McKenzie (Second Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
P Crennan (Applicant)
J Corradini-Bird (Respondent)

Solicitors:
Crennan Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/14178

Publication restriction:

No

Judgment

1. COMMISSIONER: On 27 September 2019, I delivered a judgment and made final orders disposing of these proceedings in accordance with the parties’ executed s34 agreement (the Judgment).

2. I have been asked to vary the Judgment, this time referencing the correct (site and landscape) plan and amending conditions of consent, specifically condition 1, in Annexure A.

Background to the 27 September orders

3. The proceedings concern a Class 1 appeal in relation to partial refusal of Development Application (DA) X/851/2018 by Blue Mountains City Council (hereafter the Council) for an entertainment wall, enclosed bathroom, and three car garage with attached carport on Lot 2 DP 856635, also known as 18-20 Bathurst Road, Woodford (hereafter the site).

4. The Class 1 appeal to the Land and Environment Court (the Court) was made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 September 2019. I presided over the conciliation conference.

6. At the conciliation conference, the applicant sought to amend the DA and associated plans to reduce the height and size of the garage and amend the landscaping.

7. Based on the amended DA and plans, together with the agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision was to uphold the appeal and grant consent to DA X/851/2018 with conditions. The terms of the decision as agreed by the parties are as follows:

1. The Applicant is granted leave to rely on the following amended plans and documentation:

DWG NO.	DESCRIPTION	PREPARED BY	REV	DATE
0401.30-020	Site Plan (As amended in red)	Plan it Out	A	10/08/2018
LP01	Shed Plans and Elevations	Moir Landscape Architecture	C	23/09/2019
LP00	Cover Sheet	Moir Landscape Architecture	B	18/09/2019
LP01	Revegetation Plan	Moir Landscape Architecture	B	18/09/2019
LP02	Details & Schedule	Moir Landscape Architecture	B	18/09/2019
LP03	Specification	Moir Landscape Architecture	B	18/09/2019

2. The appeal is upheld.

3. That part of Development Application No. X/851/2018 which relates to the construction of a garage/shed containing car parking spaces, a home gym, art studio, workbench, storage and an attached carport on the land at 18-20 Old Bathurst Road, Woodford is approved subject to the conditions of consent at Annexure “A”.

8. Under s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with the parties’ decision if the decision is one that the Court could have made in the proper exercise of its functions. At that time, I was told by the parties that the jurisdictional prerequisites had been satisfied and that the parties’ decision was one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

9. The parties’ decision involved the Court exercising its functions under s 4.15(1) of the EPA Act, to approve consent to the DA as set out in Annexure A of this judgment, and made pursuant to s 4.16(1)(a).

10. Therefore, under s 34(3) of the LEC Act, I disposed of the proceedings in accordance with the parties’ decision and on 27 September 2019 ordered as described in paragraph [13].

Notice of Motion dated 8 March 2021

11. After the publication of my judgment and the final orders being entered, the respondent’s solicitor, Mr Paul Laurence Crennan, filed a Notice of Motion (Motion) on 8 March 2021 to the plans and conditions relied upon.

12. During the hearing of the Motion made before me, it was noted that an error was made in proposed order 1 of the Motion. Therefore, Mr Crennan was requested to refile the Motion using the correct jurisdictional reference, which was subsequently filed on 26 March 2021.

13. The amended Motion seeks the amendment of the Judgment, pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR) which is set out as follows:

36.17 Correction of judgment or order (“slip rule”)(cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10)

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.

14. Ms Corradini-Bird did not oppose or make submission to the Motion as moved by Mr Crennan today with the Court. The Court hereby grants leave to rely on the Motion and amend the Judgment.

15. Put simply, the parties agree that the conditions of the DA consent and the attached ‘Site and landscape plan’ (0401.30.020 Rev A) relied on by the parties and the Court, did not reflect the intent of the signed s34 agreement as reached by the parties at the conciliation conference or as described in the Judgment. Annexure A, which was provided to the Court separately to the signed s34 agreement incorrectly detailed condition 1, because it referenced an incorrect plan; and the plan that should have been referenced and attached to the agreement was incorrect in showing a finished floor level for the shed.

16. Mr Crennan now seeks to vary the Judgment, namely to address the applicants error by: correcting condition 1 in Annexure A; and attaching the correct version of the Site and landscape plan, described as 0401.30.020 Rev A.

17. As the “mistake” in the orders and conditions was notified to the Court by way of the Motion after the Judgment was entered, although made consistent with the s34 agreement and the Judgement, the Judgment (of 27 September 2019) can be varied, pursuant to rule 36.17 of the UCPR.

18. As the Court has power to amend the Judgment, and based on Mr Crennan’s evidence, which is not disputed by Ms Corradini-Bird, I am now satisfied that I have jurisdiction to make the orders sought today as they reflect the agreement reached under s 34(3) of the LEC Act. I am also satisfied that the decision that I am being asked to make is one that the Court could have made in the proper exercise of its functions.

19. For those reasons and with the consent of the parties, I make the following orders:

1. Pursuant to Uniform Civil Procedure Rule Part 36 Rule 17 Annexure A to the Order made on 27 September 2019 be amended.

2. The Site and Landscape Plan (as amended in red) in the table to condition 1 of Annexure A is to be Drawing No. 0401.30-020 Revision A dated 10 August 2018 as identified in Annexure A hereto.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A (218290, pdf)

Plan (366324, pdf)

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Decision last updated: 12 April 2021