McMillan v Taylor

Case [2023] NSWCA 183


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: McMillan v Taylor [2023] NSWCA 183
Hearing dates: 28 July 2023
Date of orders: 9 August 2023
Decision date: 09 August 2023
Before: Payne JA at [1];
Kirk JA at [2];
Basten AJA at [9]
Decision:

(1)   Dismiss the summons for review filed 28 February 2023.

(2)   Order that the applicants pay the respondents’ costs in this Court.

Catchwords:

JUDICIAL REVIEW – class 1 decision of Land and Environment Court – application for review by non-party – procedural unfairness – failure to consider merit of objections – whether duty to consider terminating conciliation conference to allow Court to determine appeal on merits – jurisdictional constraint on power of Court to make agreed orders

ENVIRONMENT AND PLANNING – refusal of development application – class 1 appeal to Land and Environment Court – mandatory conciliation conference – agreement to grant of consent on terms and conditions – Court to make orders to give effect to agreed decision if “one that the Court could have made in the proper exercise of its functions”: Land and Environment Court Act 1979 (NSW), s 34(3) – whether Court required to consider merits of decision

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Civil Procedure Act 2005 (NSW), Pt 6

Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 4.15, 4.16, 8.7, 8.8, 8.14

Land and Environment Court Act 1979, ss 5, 17, 34, 34AA

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; 233 AGERA 170

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112

Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319; [1930] HCA 52

Campbell Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 96

Campbell Taylor v Council of the Municipality of Woollahra (No 2) [2022] NSWLEC 106

El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78

Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; 159 LGERA 361

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379

The Queen v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163; [1984] HCA 9

Thomson Australian…

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Details
AGLC
McMillan v Taylor [2023] NSWCA 183
Case
[2023] NSWCA 183
Decision Date

CaseChat Overview and Summary

McMillan and Ors (applicants) sought judicial review of a decision made by the Land and Environment Court of New South Wales. The dispute arose from a development application that had proceeded to a mandatory conciliation conference in the Land and Environment Court. Following this conference, an agreement was reached between the parties to grant consent for the development, subject to certain terms and conditions. The applicants, who were non-parties to the original development application proceedings, contended that the Court had failed to consider the merit of their objections and that this constituted procedural unfairness.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court had a duty to consider the merits of the applicants' objections, even after an agreement had been reached in conciliation, and whether the Court was obliged to consider terminating the conciliation conference to allow the appeal to be determined on its merits. Central to this was the interpretation of section 34(3) of the *Land and Environment Court Act 1979* (NSW), which governs the Court's power to make orders giving effect to an agreed decision arising from conciliation, stipulating that such orders must be ones the Court could have made in the proper exercise of its functions.

The Court of Appeal held that section 34(3) of the *Land and Environment Court Act 1979* (NSW) did not impose a duty on the Court to consider the merits of objections raised by non-parties once an agreement had been reached in conciliation. The Court reasoned that the statutory scheme contemplated that the conciliation process could lead to an agreed outcome, and the Court's role under section 34(3) was to give effect to such agreements, provided they were within the Court's jurisdictional powers. The Court found no error in the Land and Environment Court's approach, concluding that there was no requirement to terminate the conciliation conference or to embark on a merits assessment of the objections in the circumstances.

The summons for review was dismissed, and the applicants were ordered to pay the respondents' costs in the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the summons for review filed 28 February 2023.

(2) Order that the applicants pay the respondents’ costs in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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