Silverwater Estate Pty Ltd v Auburn Council

[2001] NSWLEC 80

Land and Environment Court

of New South Wales

CITATION:

Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 80

PARTIES:

APPLICANT:
Silverwater Estate Pty Ltd

RESPONDENT:
Auburn Council

FILE NUMBER(S):

10657 of 2000

CORAM:

Talbot J

KEY ISSUES:

Development Consent - Practice & Procedure :-
Development Consent :- deferred commencement condition
Practice & Procedure :- slip rule

LEGISLATION CITED:

Land and Environment Court Rules 1996 Pt 10 r 7
Environmental Planning and Assessment Act 1979 s 80(3)

CASES CITED:

DATES OF HEARING:

27/04/2001

DATE OF JUDGMENT:

05/01/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M H Tobias QC with Mr P R Clay (Barrister)
SOLICITORS:
Blake Dawson Waldron

RESPONDENT:
Mrs L R Finn (Solicitor)
SOLICITORS:
Abbott Tout

CORPORATION:
Mr P C Tomasetti (Barrister)
SOLICITORS:
Department of Land and Water Conservation

JUDGMENT:

IN THE LAND AND Matter No. 10657 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 1 May, 2001

Silverwater Estate Pty Ltd
Applicant

v
Auburn Council

Respondent

FURTHER REASONS ON MAKING OF FORMAL ORDERS

1. Pursuant to Pt 10 r 7 of the Land and Environment Court Rules 1996 the Court has corrected the following clerical mistakes in the judgment published 4 April 2001:-

(1) Par 9 amended to read as follows:-

The corporation has been heard as if a party to the proceedings under s 97(5) of the EP&A Act.

(2) Par 36:-
Omit the word “knoll”.
(3) Par 45:-
Delete the word “Representations” in the first line and insert “Representatives”.

(4) Par 95:-
Delete the word “applicant” in the first line and insert “corporation”.

(5) Par 105:-
Delete the word “tradition” in the second line and insert “transition”.

(6) Par 133:-
Delete the word “fenced”.


2. During the course of submissions made in relation to the form of final orders and in particular the final form of conditions of development consent, the corporation requested that the Court defer commencement of the consent under s 80(3) of the Environmental Planning and Assessment Act 1979 such that the consent is not to operate until the Court has finally determined the issues raised by the corporation in proceedings No 40055 of 2000.

3. The class 4 proceedings relate to the grant of an earlier development consent in respect of the same land. Sheahan J has made an interlocutory order preventing further work pursuant to the earlier development consent until further order.

4. Section 80(3) operates in circumstances where there is an outstanding matter about which the applicant needs to satisfy the consent authority. The submissions by the corporation do not go to any question of satisfaction about any aspect of the development. The Court has not left the question of validity of the earlier development consent open for further consideration in these class 1 proceedings. It has proceeded on the basis of its validity. If the present applicant cannot act on the development consent so granted as a consequence of a subsequent declaration of invalidity of the earlier consent then so be it. It is not a matter about which the Court is presently concerned or needs to be satisfied.

5. Furthermore, the Court has not been placed in the position where it would exercise any discretion to impose such a condition even if it was satisfied it is within power.

6. The submission by the corporation is rejected.

7. Otherwise, the parties have informed the Court they are now satisfied that the orders made and the conditions applied to the consent are a proper reflection of the reasons for judgment.

8. The corporation also formally made application for a stay of the orders granting consent to afford an opportunity for the corporation to consider an appeal from the Court’s decision. Having regard to the formal response by the parties, the Court foreshadowed that there would be extensive argument, including whether there was any right of appeal in the circumstances, and therefore declined to make an order for stay immediately but without foreclosing on the opportunity for the corporation to move the Court at an early date if it decided to proceed.