Strathavon Resort Pty Ltd v Wyong Shire Council

[2014] NSWLEC 65

Land and Environment Court

New South Wales

Medium Neutral Citation:	Strathavon Resort Pty Ltd v Wyong Shire Council [2014] NSWLEC 65
Hearing dates:	27 May 2014
Decision date:	27 May 2014
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	The Applicant's amended Notice of Motion of 9 May is dismissed with costs
Catchwords:	PRACTICE AND PROCEDURE: Application to set aside consent orders made but not entered following a conciliation conference
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005
Cases Cited:	Halley v The Minister Administering the Environmental Planning and Assessment Act 1979 (No. 4) [2011] NSWLEC 133 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 Wollondilly Shire Council v Foxman Environmental Development Services (No 6) [2013] NSWLEC 143
Category:	Procedural and other rulings
Parties:	Strathavon Resort Pty Ltd (Applicant) Wyong Shire Council (Respondent)
Representation:	Mr M Astill, barrister (Applicant) Mr P Larkin, SC (Respondent) Maddocks Lawyers (Applicant) Wyong Shire Council (Respondent)
File Number(s):	10058 of 2014

Judgment

1. This Class 1 matter is one of several proceedings involving the use and/or development of a significant site at 31 Boyce Ave, Wyong. Class 4 proceedings remain on foot (13/40530) and are being mediated, and two other class 1 matters (13/10458 and 14/10057) have been discontinued.

1. The present matter (14/10058) was commenced on 7 February 2014. It was successfully resolved between the parties at a Land and Environment Court Act 1979 s 34 conciliation conference, and consequential orders, signed by their solicitors, were made by Pearson C on 10 April 2014, in accordance with the terms of the agreement reached. Those orders are yet to be entered.

1. The applicant company has subsequently changed its mind about the terms of that agreement. It appointed a new solicitor on 2 May, and put on two Notices of Motion ("NOM"), dated respectively 2 and 8 May 2014.

1. The earlier NOM was amended on 9 May, and seeks to set aside the orders of 10 April.

1. The NOM dated 8 May seeks a one year extension to the lapsing period in consent DA/528/2013, pursuant to s 95A of the Environmental Planning and Assessment Act 1979.

1. The parties have argued only the "set aside" motion today, on the basis that its determination will dictate whether there is any remaining utility in the "extension" motion.

1. I agree with Mr Larkin, Senior Counsel for the Council, that the 28 day period in Condition A of the deferred commencement conditions in the consent orders will not commence to run until the Council issues some notice of determination, once the s 34 orders are entered.

1. I also accept his submission that the mandatory terms of s 34(3), and the principles in this Court's decisions in Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192, Halley v The Minister Administering the Environmental Planning and Assessment Act 1979 (No. 4) [2011] NSWLEC 133, and Wollondilly Shire Council v Foxman Environmental Development Services (No 6) [2013] NSWLEC 143 indicate that the s 34 agreement should be honoured, and that the amended NOM seeking to set aside the consequential orders should be dismissed.

1. While each of those three decisions, and each of the others to which they refer, turns on its own facts, and they come within the various rules in Uniform Civil Procedure Rule 36, the public interest is best served by upholding the finality of litigation, concluded as in this case. The principles stated in those authorities have broad application.

1. The learned and experienced Commissioner involved in the conciliation process in this case had to be satisfied that she could and should make the orders which she made, and, contrary to the applicant's submissions on the NOM, those orders have, and must be given, the same force as any reasoned judgment of a Judge or the Court, following a full adversarial trial.

1. The "real issues in the proceedings" (the concept in s 56(1) of the Civil Procedure Act 2005) - including the question of existing use rights - were ventilated between the parties over a long period, and were then clearly before the Court at the s 34 conference, where a compromise was reached, with the benefit of competent legal and expert advice.

1. Other than a change of mind, and a decision to retain new advisors, no cause has been shown for the Court to set the orders aside. Those factors do not amount to "sufficient cause".

1. The amended NOM of 9 May 2014 is dismissed with costs. The NOM of 8 May 2014, and the further disposition of these and the class 4 proceedings, is referred to the Registrar. Exhibit W1 will be retained at this stage.

**********

Decision last updated: 28 May 2014