Santin v Lismore City Council

[2021] NSWLEC 119

Land and Environment Court

New South Wales

Medium Neutral Citation:

Santin v Lismore City Council [2021] NSWLEC 119

Hearing dates:

24 June 2021

Date of orders:

30 June 2021

Decision date:

30 June 2021

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [16]

Catchwords:

CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — Motion to amend Registrar’s decision on amendment of modification application — Motion granted

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 49.19

Cases Cited:

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112; (2021) 247 LGERA 318

Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260

Tomko v Palasty(No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:

Procedural rulings

Parties:

Michael Santin (Respondent on the Motion)
Lismore City Council (Applicant on the Motion)

Representation:

Counsel:
T To (Respondent on the Motion)
N Hammond (Applicant on the Motion)

Solicitors:
Fishburn Watson O’Brien (Respondent on the Motion)
Clayton Utz (Applicant on the Motion)

File Number(s):

2021/00026242

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. Before me as Duty Judge is a notice of motion filed 17 June 2021 whereby Lismore City Council (‘Council’), the respondent in these Class 1 appeal proceedings, seeks an order setting aside orders made by the Registrar on 27 May 2021 in accordance with r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).

2. As Michael Santin, the ‘applicant’ in these Class 1 proceedings, has agreed to the orders sought by Council, I indicated it is my intention to make those orders. Despite this, I have been requested to give reasons, which I now provide.

Background

3. The background is uncontentious. The applicant brought Class 1 appeal proceedings (‘proceedings’) resulting from Council’s refusal of a modification application on 8 December 2020, which sought to modify a development consent granted by Council for a hard rock quarry at Monaltrie in the local government area of Lismore by extending its operation until 12 May 2036.

4. As I indicated, Council refused the modification application on 8 December 2020, and these proceedings were commenced by the applicant in this Court on 29 January 2021.

5. By notice of motion filed 17 May 2021 and heard before the Registrar, the applicant sought to amend the modification application. The amendments sought to the modification application related to wording of a condition in relation to the lapse of the development consent (which was a contention of the proceedings), an amendment to the wording of a further condition in relation to truck movements, and the movement of what appeared to be noise barriers.

6. Council consented to the amendments sought by the applicant. On 27 May 2021, the Registrar, after receiving written and oral submissions, and having satisfied herself that it was appropriate to make orders, made orders by consent providing for the amendment of the modification application, as well as minor consequential orders in relation to procedural matters which would follow from the amendments she otherwise ordered.

7. On 3 June 2021, the Court of Appeal handed down its decision in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112; (2021) 247 LGERA 318 (‘Dartbrook’), in which a concern was raised in relation to whether there was a power to amend a modification application. Although the issue was not determinative to the result of that appeal, Preston CJ of LEC found that, in his view, there was no power to allow the amendment of a modification application.

8. As a result of a concern in relation to Dartbrook, Council filed the notice of motion before me on 17 June 2021, seeking to set aside the earlier orders (made by consent) of the Registrar allowing for the amendment of the modification application. The details of the judgment in Dartbrook do not require recitation, primarily because the parties agree that the orders sought in the motion filed 17 June 2021 should be made. That is, the parties agree that the orders made by the Registrar on 27 May 2021, otherwise providing for the amendment of the modification application, should be set aside.

Notice of Motion

9. The motion was listed before me as Duty Judge at 2.00pm on Thursday, 24 June 2021 for directions. At around 1.45pm, the Court received notice by email from the applicant’s solicitor that:

“…as a result of discussion the [m]otion… is expected to be dealt with by the [a]pplicant consenting to Prayer 1 of that motion. The parties have also agreed to seek no order as to costs in respect of that [m]otion.”

10. When the motion came before me at 2.00pm, or shortly thereafter, Mr T To of counsel appeared for the applicant and Ms N Hammond of counsel appeared for Council. The Court was informed that the parties had agreed that orders should be made setting aside the Registrar’s orders of 27 May 2021. However, despite this, Ms Hammond indicated that in accordance with her instructions Council requested that the Court indicate that it is appropriate to make the orders which had been agreed to by the parties. It is for that reason that I make the following comments.

Consideration

11. It is well-known that a court must satisfy itself of its jurisdiction to make any orders. Rule 49.19 of the UCPR clearly indicates that a court is entitled to make orders in relation to the setting aside of decisions of a registrar.

12. The principles governing the exercise of the Court’s power to review a registrar’s decision have been frequently stated. The references can be shortly cited, Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 at [12]-[13], which itself considered the earlier Court of Appeal judgment, Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [8]-[9]. Those principles, which I do not repeat, have been consistently applied by this Court in numerous decisions and are not in dispute.

13. Matters which the Court can take into account when deciding whether to exercise the power to review include either an error of law or a material change in circumstances. I am satisfied that, in relation to the motion before me, there has been a material change in circumstances, on one view being first, that the parties have now agreed that the amendments to the modification application previously sought to be made by the applicant are no longer desired to be made and; second, my consideration of the commentary in Dartbrook regarding the power residing with the Court to amend a modification application.

14. In those circumstances, I am satisfied that the Court has jurisdiction to make the orders sought in the present motion. The authorities make it clear that the Court has a wide discretion when deciding whether to exercise the power to review. I have no doubt that in the present motion before me it is appropriate that the orders be made for the reasons I have stated.

15. Finally, there is no suggestion, in the submissions made to me by the parties or the material I have considered when deciding this motion, that the Registrar’s decision and the orders made 27 May 2021 were not properly made at the time they were made, and there is no criticism in this judgment of the careful consideration given by the Registrar to the matters that were then before her.

Orders

16. The Court orders that:

1. In accordance with rule 49.19 of the Uniform Civil Procedures Rules 2005 (NSW) the Court sets aside the orders made by the Registrar on 27 May 2021.

2. No order as to costs.

**********

Decision last updated: 04 November 2021