The Coast Protection Board v Carramatta Holdings Pty Ltd - [2015] SASCFC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE COAST PROTECTION BOARD v CARRAMATTA HOLDINGS PTY LTD
[2015] SASCFC 64
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
4 May 2015
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - GENERAL MATTERS
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - VARIATION AND SETTING ASIDE OF CONSENT JUDGMENT
The first respondent owns 831 hectares of land alongside cliffs at Bosanquet Bay, the land had been purchased from the third respondent in August 2009. The first respondent divided the land into two components, 192 hectares of coastal land which was zoned coastal conservation under the District Council of Ceduna Development Plan, the remaining land was zoned rural living under the same Development Plan.
In April 2008 the first respondent cleared and levelled 5.5 hectares of sand dunes and spread the sand over approximately 13 hectares forming part of the coastal land. The first respondent ceased this work on intervention from the fourth respondent and the appellant. A notice to cease work was further issued under the Native Vegetation Act 1991 (SA).
In July 2008 the fourth respondent issued an enforcement notice under the Development Act 1993 (SA) to remedy the breach of that Act. The first respondent appealed that enforcement notice to the Environment, Resources and Development Court. The appellant commenced proceedings in the same court in October 2008 seeking orders against the first, second and third respondents.
The parties attended a settlement conference and agreed to a resolution of the matters in dispute in the Environment, Resources and Development Court. The member of the Court pursuant to s 16(7) of the Environment, Resources and Development Court 1993 (SA) made consent orders to give effect to the settlement reached at the conference.
A Commissioner made a consent order for the revegetation, rehabilitation and preservation of vegetation on the coastal land. Attached to that order was a report that makes reference to conditions of rehabilitation provided by the appellant.
Applications where made in January and March 2010 by the first respondent to the Native Vegetation Council, the Council forwarded the applications to the Assessment Panel in January 2011. In April 2012 those applications were granted, for the purposes of implementing the Commissioner's orders, with certain conditions attaching.
Further reports, by the same author, were prepared outlining that the delay had significantly increased the complexity of site rehabilitation. The previously recommended methods were now considered to have a negative impact on native fauna that had since developed.
The first and second respondents applied to the Environment, Resources and Development Court to reopen and revoke or vary the consent orders of the Court. The Judge refused to do so. The first and second respondents successfully appealed that decision to a single Judge of this Court.
Held (per Kourakis CJ):
1. The Environment, Resources and Development Court has the power under s 85(17) to vary or revoke any remedial order made by the Court. (at [2]).
2. An order made pursuant to s 16 of the Environment, Resources and Development Court Act 1993 (SA) is an order made pursuant to s 85 of the Development Act 1993 (SA). (at [19]).
3. The Environment, Resources and Development Court Act regulates the procedure by which the court may make an order pursuant to the power in the Development Act. (at [19]).
4. Agreements of the kind embodied by orders made by the Environment, Resources and Development Court are of a very different kind to the kind of agreement found in Harvey v Phillips. The agreement and orders made by the Court are likely to affect the interests of many persons who are not parties to the settlement. (at [28]).
5. Section 85(17) of the Development Act is not to be read down by reference to Harvey v Phillips. (at [30]).
6. Appeal dismissed.
Held (per Gray J):
1. The decision in Harvey v Phillips does apply to the agreement the subject of the consent order of a member of the Environment, Resources and Development Court.
2. However, due to the delay of the Native Vegetation Council there are major impediments to the enforcement of the order. The obligations of the First and Second Respondents were specifically subject to the further recommendations of Mr Bebbington and Mr Bebbington no longer considered the agreed scope of work to be practical, achievable or appropriate.
3. In such circumstances the proceedings should be remitted to the Environment, Resources and Development Court for rehearing.
4. Appeal dismissed.
Held (per Stanley J):
1. The power conferred on the Environment, Resources and Development Court by s 85(17) of the Development Act 1993 (SA) permits the Court to vary or revoke a remedial order made by the Court with the consent of the parties pursuant to s 85(6) (at [122]).
2. The plain meaning of the words of s 85(17) should not be read down by reason of the principle in Harvey v Phillips (at [126]).
3. Appeal dismissed (at [127]).
Development Act 1993 (SA) s 3, s 32, s 33, s 35, s 38, s 84, s 85; Development Regulations 2008 (SA) Sch 2; Environment, Resources and Development Court Act 1993 (SA) s 16, s 33; Native Vegetation Act 1991 (SA) s 31E; Environment Resources and Development Court Rules 2003 (SA) r 4.1, r 15.11, referred to.
Harvey v Phillips (1956) 95 CLR 235, distinguished.
Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1936) 28 FLR 195; Players Pty Ltd (in liq) (receivers appointed) & Ors v Clone Pty Ltd (2003) 115 SASR 547; Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273; Paino v Hofbauer (1988) 13 NSWLR 193; Longwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; Varley v Attorney-General (NSW) (1987) 8 NSWLR 30; Eastman v The Honourable Jeffrey Miles & Ors [2004] ACTSC 32; Hudspeth v Scholastic Cleaning and Consulting Services Pty Ltd (No 4) [2013] VSC 14; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114; Mohtar v Mohtar (1984) 146 LSJS 377; Redland Bricks Ltd v Morris [1970] AC 652; Kennard v Cory Bros & Co Ltd [1922] 1 Ch 265; Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Variation, vary or revoke, order, Environment, Resources and Development Court power, Environment, Resources and Development Court orders, Development Plan, consent orders, variation of consent order."

THE COAST PROTECTION BOARD v CARRAMATTA HOLDINGS PTY LTD
[2015] SASCFC 64
Full Court: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: I gratefully adopt the factual summary of the subject matter of the dispute and the litigation history set out in the judgment of Gray J.
Section 85 of the Development Act 1993 (SA) (the Development Act) confers a jurisdiction on the Environment Resources and Development Court (the ERD Court) to remedy or restrain a breach of the Development Act. If the ERD Court is satisfied on the balance of probabilities that a person has breached the Act it is empowered by s 85(6) of the Development Act to require that person to refrain from an act or course of action that constitutes the breach, to require that person to make good the breach in a manner specified by the Court or to cancel or vary any applicable development authorisation. I will refer to orders made pursuant to that power as remedial orders. The subject matter of this appeal is the scope of the power conferred on the ERD Court by s 85(17) of the Development Act to vary or revoke a remedial order previously made under s 85(6) of the Development Act.
Section 85(17) of the Development Act provides:
(17)The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.
It should immediately be observed that this subsection replaces the general common law rule, that a court cannot recall or vary a perfected judgment, with a widely expressed power.[1]
[1] Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1936) 28 FLR 195 at 198 per Brennan J. See also Players Pty Ltd (in Liq) (receivers appointed) & Ors v Clone Pty Ltd [2013] SASCFC 25 at [56] to [69].
The Coast Protection Board contends that s 85(17) of the Development Act does not empower the ERD Court to vary or revoke an order which embodies the terms of an agreement compromising an enforcement action made by the parties to that action. For the reasons which follow, I reject that contention and hold that s 85(17) of the Development Act extends to any remedial order made by the ERD Court. If contrary, to its submission, the power extends to orders reflecting a settlement agreement, the Coast Protection Board does not impugn the Judge’s decision to remit the question of whether to exercise that power in the circumstances of this case to the ERD Court.
The Development Act
The objects of the Development Act include the establishment of an orderly planning system:
(i)     to enhance the proper conservation, use, development and management of land and buildings; and
(ii)    to facilitate sustainable development and the protection of the environment; and
(iia) to encourage the management of the natural and constructed environment in an ecologically sustainable manner; and
(iii)   to advance the social and economic interests and goals of the community;[2]
[2]    Development Act 1993 (SA) s 3(c).
The primary control mechanism of the Development Act to achieve those objects is to prohibit development unless approved by the applicable planning authorities in the manner it prescribes.[3] Section 85 of the Development Act provides for the effective enforcement of that prohibition by restraining unauthorised development and by requiring remediation of any development work that has already been undertaken without approval or by reinstatement of land to its previous condition. The proper construction of s 85(17) must be informed by an understanding of the effect of the orders which the Court may make pursuant to s 85(6) in the context of the planning regime established by the Development Act.
[3] Development Act 1993 (SA) s 32.
First it must be understood that the removal or remediation of development which has been undertaken without approval may, in itself, constitute development because development is defined to include, not only the construction of a building, but also the demolition or removal of a building, including the associated excavation or filling of land.[4] Moreover, certain earthworks in themselves constitute development. In particular, in certain zones any excavation or filling of land which involves a volume of material of more than nine cubic metres may be development.[5]
[4] Section 3, see definitions of development and building work.
[5] Development Regulations 2008 (SA), Schedule 2.
Secondly, because s 32 of the Development Act is subject to the remainder of the Development Act, and because of the nature and purpose of the jurisdiction conferred on the Court by s 85, it follows that any removal or remedial work ordered by the Court pursuant to s 85(6) does not, unless the Court order is so conditioned, require approval in accordance with the procedures prescribed by the Development Act.
It is therefore important to refer briefly to the approval regime enacted by Part 4 of the Development Act. Section 34 provides that the relevant authority for granting development approval is generally the local government council of the area in which the development is to be undertaken. For certain classes of development the relevant authority is the Development Assessment Commission and the Minister may, acting at the request of a council, constitute the Development Assessment Commission as the relevant authority in relation to a proposed development. For prescribed developments of a special nature, the Development Assessment Commission is also made the relevant authority. Section 33 of the Development Act requires the relevant authority to assess the proposed development against the provisions of the Development Plan for the geographical area in which the development is proposed and against certain other prescribed instruments, depending on the nature of the development.
Developments are assessed on their merits save for those developments which are classified as either complying or non-complying by the applicable Development Plan.[6] Complying developments must be approved. A development that is non-complying must not be granted development approval by a council unless the Development Assessment Commission concurs in the granting of consent. The Development Assessment Commission must not grant consent to a non-complying development in respect of which it is the prescribed authority unless both the Minister and the council in which the development is to be undertaken concur in the granting of consent.[7]
[6] Development Act 1993 (SA), s 35.
[7] Development Act 1993 (SA), s 35.
Section 38 of the Development Act provides for the categorisation of kinds of development each of which is subject to a different assessment process. The Development Plan or the Regulations may assign developments to category 1 or category 2. The Regulations alone may assign developments to category 2A. In the case of inconsistency of assignment, the Regulations prevail. Any development not assigned a category by either the Regulations or the Development Plan is taken to be a category 3 development.[8]
[8] Development Act 1993 (SA), s 38(2).
The relevant planning authority must not seek the views of owners or occupiers of adjacent land with respect to category 1 developments. In the case of category 2 and 2A developments, the relevant authority must, subject to any exclusion prescribed by the Regulations for category 2A developments, give the owner or occupier of each piece of adjoining land and any other person of a prescribed class, notice of the application and must consider any representations made in response to that notice.[9]
[9] Development Act 1993 (SA) s 38(3)(4).
With respect to category 3 developments, notice must be given to all persons who would have received a notification if the development was a category 2 development, and to any other owner or occupier of land, which the relevant authority determines would be directly affected to a significant degree by the development if it were to proceed, and to the public generally.[10]
[10] Development Act 1993 (SA) s 38(5).
The notices referred to in the preceding paragraph and the representations sought by them must be limited to what the decision of the relevant authority as to development plan consent should be, or to the conditions on which development consent should be given. The representations received must be forwarded to the applicant and the applicant given an opportunity to respond. Persons who have made submissions after being given notice may be given an opportunity to appear personally before the relevant authority in the case of category 2 developments and in the case of category 3 developments must be allowed to make a representation personally.
Finally s 37 of the Development Act provides that with respect to certain classes of development prescribed by the Regulations, the relevant authority must refer the application to another body prescribed by the Regulations.
With that statutory context in mind, I return to s 85 of the Development Act. It provides that any person may apply to the Court for an order to remedy or restrain a breach of the Act. Counsel for the Coast Protection Board accepted that provision should not be read down in a way which requires the applicant for a remedial order to have an interest which would satisfy the common law standing requirements. On that construction, and indeed even if the subsection was qualified by reference to the common law rules of standing, persons who would not be entitled to notice of a development pursuant to Part 4 of the Development Act may bring an application for enforcement and may later become a party to an agreement by which the action is compromised. However, in this respect, it must be remembered that any orders made by the Court pursuant to s 85 of the Development Act will bind only the parties to the enforcement action. If a person other than a relevant authority, as defined, brings the enforcement proceedings, the proceedings must also be served on the relevant authority. Section 84 defines a relevant authority to include the Development Assessment Commission or a council or any prescribed body under s 37 of the Development Act that is brought within the ambit of the definition by regulation made for the purposes of this section. The Coast Protection Board is an authority pursuant to s 37 of the Development Act for development on coastal land[11] but is not prescribed pursuant to s 84 of the Development Act. Pursuant to s 84 of the Development Act a relevant authority may give a direction to a person who has undertaken development without approval to remedy it. The person affected by that notice may appeal to the ERD Court. The application may be made in the first instance ex parte but the Court may grant permission to the applicant for the enforcement order to serve a summons on the respondent if the Court is satisfied that the respondent has a case to answer.
[11] Development Regulations 2008 Reg 24 and schedule 8.
Pursuant to s 85(5) of the Development Act, an application must in the first instance be referred to a conference under s 16 of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Court Act). Section 16 of the ERD Court Act recognises that another Act may provide for a compulsory conference. Pursuant to s 16 of the ERD Court Act the ERD Court may dispense with a conference if it is of the opinion that it will not serve any useful purpose or there is some other reason to do so.[12] Section 16(7) of the ERD Court Act provides that the member of the Court presiding at the conference may, subject to s 16(9) of that Act, record any settlement reached at a conference and make any determination or order necessary to give effect to that settlement. The qualification found in s 16(9) of the ERD Court Act is that the presiding member must not accept a settlement that appears to be inconsistent with a relevant Act and may decline to accept a settlement on the ground that the settlement may materially prejudice any person who was not represented at the conference but who has a direct or material interest in the matter.
[12] Environment, Resources and Development Court Act 1993 (SA) s 16(3).
I hold that an order made pursuant to s 16 of the ERD Court Act is an order made pursuant to s 85 of the Development Act. The jurisdiction and power to make the order is to be found in s 85 of the Development Act. The ERD Court Act merely regulates the procedure by which the ERD Court may make an order in the exercise of the power given by s 85 of the Development Act if the parties to that action resolve their dispute at the s 16 conference.
If the matter is not resolved in the settlement conference s 85(6) of the Development Act provides that the Court may, if it is satisfied on the balance of probabilities that the respondent has breached the Act, make remedial orders.

Section 85(9) of the Development Act provides that a relevant authority, and any person with a legal or equitable interest in land to which an application relates, is entitled to appear before a final order is made and may be heard in proceedings based on the application. However, there is no requirement that notice of the proceedings be given to those persons. Nor, importantly, is there a requirement that notice be given to those persons who would receive a notice pursuant to the provisions of Part 4 of the Development Act if approval under that part had been sought for the development subject to the enforcement action, or if approval were sought for any development undertaken in accordance with a remedial order made by the ERD Court. Of course the Judge presiding over a contested hearing pursuant to s 85 of the Development Act, or the member of the ERD Court presiding at a conference, may order that notice be given to some or all of those persons. A party to an enforcement might also give notice to others on his or her own initiative. Nonetheless it may often be the case that a person, who would have received notice of the remedial work if an application for development had been made, will not receive notice of the enforcement action.
The Coast Protection Board accepts that s 85(17) empowers the ERD Court to set aside orders made after a contested hearing. The Coast Protection Board correctly submits that the exercise of the power in those circumstances would call for a weighing of the public interest in the finality of judicial proceedings against the substantive merits of varying or revoking the order to optimise the remediation orders having regard to any additional material put before the ERD Court. It can be accepted, as the Coast Protection Board contends, that the finality of litigation commands much weight in that evaluative exercise. However for present purposes what is important is that the concession of the Coast Protection Board, which is plainly right, allows the Court, in an appropriate case, to vary or revoke its orders made after a contested hearing to optimise the planning outcome. It is difficult to see why that obvious advantage should be denied the public in the case of an order which embodies the terms of a settlement reached by the parties to an enforcement action. Indeed, as will shortly be seen, power may be even more useful in the case of remedial orders made by consent. Nonetheless, the Coast Protection Board submits that the decision of the High Court in Harvey v Phillips[13] demands that result.
[13] (1956) 95 CLR 235.
The potential of the construction urged by the Coast Protection Board to frustrate the objects of the Development Act can readily be appreciated when it is remembered that any person may bring an enforcement action. A person prosecuting a private enforcement action may be motivated to secure an order which remediates the unauthorised development only to the extent, or in a way, that advantages his or her private interests. An order calculated to achieve his or her private interests may not optimise the planning outcome for other persons with interests in affected land or the public generally. Should it come to the attention of the Court, in a proper way, that the remedial order protecting the prosecutor’s narrow interests is not reasonably adapted to the interest of all affected persons, it is difficult to see why s 85(17) of the Development Act should be construed so as to deny the ERD Court the power to adjust its remedial orders to better reflect the objects of the Development Act and the applicable development plan. That is all the more so given the absence of any comprehensive regime for the provision of notice of the enforcement action, or the proposed remedial orders, to other affected persons.
The importance of a power to vary settlement orders in furthering the objects of the Development Act can also be appreciated when one considers that part of the order in this case which allows the parties to agree on a variation of the orders between themselves. As I earlier observed the remedial work may well include development. It cannot be that the parties by agreement between themselves can proceed to undertake further development pursuant to that term without first obtaining approvals under Part 4 of the Development Act or without obtaining an amendment of the order sanctioning their agreement. That would be to delegate the judicial power of the ERD Court to the parties.
If that be accepted, it must follow that the ERD Court could refuse to amend a consent remedial order to accord with the parties’ agreed variation even though their agreement was sanctioned by a clause of the original settlement and embodied in the remedial order. It would be odd then to preclude the ERD Court from amending its orders more generally in the public interest even though they reflect a settlement reached by the parties.
It is also useful to consider the situation which would arise if one of the parties to an agreement compromising an enforcement action refuses to give his or her assent to a proposal for a variation agreed by the others. That may happen if the prosecution was brought by a private party to protect his or her private interests, or even by a person with no direct interest at all. A relevant authority such as a council, the Environment Planning Authority or the Coast Protection Board may have been joined as a party to that action and have been a party to a compromise reached at a s 16 ERD Court Act settlement conference and embodied in an ERD Court order. Let it be supposed that, later, the respondent to the action agrees on a variation with the relevant authority which better advances the objects of the Development Act and the applicable development plan, but that they fail to obtain the assent of the prosecutor because of his or her unreasonable obstinacy or because the variation adversely affects the prosecutor’s private interests. On the submission put by the Coast Protection Board s 85(17) of the Development Act would not extend to allow the Court to amend the remedial order whether in the way sought by the defendant and the relevant planning authority, or in some other way, which optimises the planning outcome.
The matters I have raised show that the application of the principle in Harvey v Phillips Ltd to s 85(17) of the Development Act will lead to results which are plainly contrary to that Act’s purposes and the public interest. There is good reason therefore not to read down the words of s 85(17) of the Development Act to deny the ERD Court the power to amend its orders made on the basis of a s 16 settlement conference. Agreements of the kind reached in compromise of enforcement proceedings are very different from the kind of agreement in contemplation in Harvey v Phillips. The subject matter of the settlement agreement in Harvey v Phillips was the personal action of the plaintiff for damages for medical negligence. Unlike personal actions of that kind, compromises of prosecutions brought pursuant to s 85 of the Development Act are likely to affect the interests of many persons who are not parties to the settlement. The prosecutor of an enforcement action may have no property right at all in the subject matter of the controversy. Moreover enforcement actions involve the property rights of the person who has undertaken unauthorised development on his or her land only in the sense that they require adherence to the Development Act in the exercise of those property rights. The property rights of the defendant to a prosecution do not include a right to develop the land without approval pursuant to the Development Act. The interest of all parties to an enforcement action is the proper enforcement of the Development Act which is an interest they share with the public as a whole.
It remains to consider whether there is any authority which requires the plain words of s 85(17) of the Development Act to be read down. The decision of the High Court in Harvey v Phillips[14] does not stop. The subject matter of the appeal in Harvey v Phillips was an application which had been made to the Supreme Court of New South Wales to set aside a judgment given in pursuance of a compromise of an action made between counsel. As I earlier observed the plaintiff’s claim was for damages against a surgeon defendant for medical negligence. The plaintiff was given strong advice by her counsel to settle. The Supreme Court found that the plaintiff was temporarily overborne by the pressure exerted upon her by her counsel and solicitor and instructed them to accept the proposed compromise of the action. The trial Judge authorised the entry of the judgment in accordance with the terms of settlement drawn up in a written document. However judgment had not in fact been signed or entered. The issue in Harvey v Phillips was therefore whether the Court’s power to refuse to enter the judgment was limited to those circumstances which would render a simple contract voidable, or subject to be set aside in equity, or whether there was a wider ground to refuse to do so in the broad interests of justice. The High Court held[15] that the Court could only refuse to enter judgment on the former grounds. In so holding the High Court applied the decision of Lindley LJ in Huddersfield Banking Co Ltd v Henry Lister & Son Ltd.[16] In Huddersfield Banking Co, Lindley LJ held that a perfected consent order could only be impeached on the ground of fraud, or any other ground which would invalidate the agreement, but not otherwise.
[14] (1956) 95 CLR 235.
[15] Harvey v Phillips (1956) 95 CLR 243, 244.
[16] [1895] 2 CH. 273, at page 280.
The decision in Huddersfield Banking Co Ltd v Henry Lister & Son Ltd[17] was argued on the basis of the inherent power of the High Court of England. Many of the authorities referred to and discussed were pre Judicature Act authorities. There is no reference to any rule made under the rule making power conferred by the Judicature Act extending the inherent jurisdiction of the Court.
[17] (1895) 2 CH. 273.
It is plain then that Harvey v Phillips considered only the inherent or implied powers of a Court and did not concern the scope of any specific power granted directly by statute or by the statutory power commonly given to courts to make rules concerning their practice and procedure.
In Paino v Hofbauer[18] the power of the Supreme Court of New South Wales to vary a consent order based on an agreement as to the terms of settlement of an action in accordance with a rule of that court was considered. The judgment was for a money sum payable by instalments in accordance with an agreed timetable. The question before the Supreme Court was whether its rule which empowered it to “extend or abridge any time fixed by the rules or by any judgment or order” extended to a time stipulation in an order based on an agreement compromising proceedings. McHugh JA, with whom Samuels JA agreed, held that the rule did extend to varying a time stipulation in an order embodying a consent agreement. McHugh JA distinguished Harvey v Phillips on the basis that the Supreme Court of New South Wales had an expressly conferred discretionary power under its rules to vary a time stipulation in an order. Nonetheless, McHugh JA accepted that a consent order based on a contract should not be set aside or varied unless the circumstances were exceptional.
[18] (1988) 13 NSWLR 193.
The decision of the New South Wales Court of Appeal in Longwon Pty Ltd v Warringah Shire Council[19] concerns the power of the New South Wales Land and Environment Court to set aside prohibitory and mandatory orders in respect of clearing and other works which Longwon Pty Ltd had undertaken without consent under the Environment Planning and Assessment Act (NSW) 1979. Longwon Pty Ltd made an application to set aside the consent orders on the ground that it had entered into them under a mistake of fact concerning the conditions of the consent pursuant to which development was being undertaken on adjacent land. The Court of Appeal proceeded on the basis that the orders being consent orders it was necessary for Longwon to show the existence of a ground which would suffice to render a simple contract void or voidable or liable to be set aside in equity. The Court relied on Harvey v Phillips. The Court of Appeal held that the Judge of the Land and Environment Court was right to find that there was no mistake vitiating the agreement and refused to set aside the orders.
[19] (1993) 33 NSWLR 13.
However in Longwon there was no statutory provision or rule pursuant to which the application was made. The Land and Environment Court of New South Wales was established as a superior court of record. The power to set aside consent orders was limited to such power as might have as part of its implied (from its constituting statue) or powers, inherent (in its statutory status as a superior court of record) powers. Longwon is therefore not authority for the Coast Protection Board’s contention that the specific statutory power found in s 85(17) of the Development Act should be read down to exclude consent orders. In fact, to the contrary, Longwon is an example of the mischief to which the express power conferred by s 85(17) of the Development Act may well have been directed.
The width of the power conferred by s 85(17) of the Development Act is emphasised by the inclusion of an express power for the Court to act on its own motion. When a power is conferred on a Court to act on its own motion the legislature must have in its contemplation, because Courts in the common law tradition are not inquisitorial, that the Court will act because of information placed before it, formally or informally by persons who are not parties.[20] Moreover a Court that is empowered to act in its own motion may well act on its own initiative even when it is open to a party to civil proceedings to move for appropriate relief.[21]
[20] Varley v Attorney General (NSW) (1987) 8 NSWLR 30; Eastman v The Honourable Jeffrey Miles & Ors [2004] ACTSC 32.
[21] Hudspeth v Scholastic Cleaning and Consulting Services Pty Ltd (No 4) [2013] VSC 14.
In Varley Hope JA said:
the phrase ‘of his (or its) own motion’ has long been known to the law. It means that the body or person who’s empowered to do something in this way acts without a formal application to or before it or him that the act be done. Of course someone may suggest or request the doing of the act, or may bring to notice facts or matters relevant to a decision whether or how to act, but such a person is not an applicant in the formal sense; and if following such a suggestion or request or the receipt of such information, the act is done, it is done upon the bodies or person’s own motion in the light of the information so received, and not upon the basis of any application.[22]
[22] Varley v Attorney General (NSW) (1987) 8 NSWLR 30, pages 46-47.
The inclusion in s 85(17) of the Development Act of a discretion to act on its own motion is a recognition by the legislature that there are persons, other than the parties in the proceedings, which led to the remedial order of the Court who may have an interest in its review and ultimately its variation or revocation. It is those persons who may put information, formally or informally, before a Court which will move it to review a previously made remedial order after giving the parties and other interested persons an opportunity to be heard.
It is not necessary on this appeal to decide whether s 85(17) of the Development Act requires a formal application. That is an issue on which the Court of Appeal of New South Wales split in Varley’s case. The subject matter of the application in Varley tended to suggest that a formal application was not necessary. The same conclusion might not be reached given the nature and subject matter of the power conferred by s 85(17) of the Development Act.
Either way the importance of the inclusion of the discretion given to the ERD Court to act on its own motion is in the recognition that there may be good reason for the ERD Court to review a remedial order and act even in the absence of any application by the parties to the enforcement action. That consideration, together with the purposes of the Development Act more generally to which I earlier referred, strongly militates against reading down the plain words of the power conferred by s 85(17) of the Development Act so as to deny the ERD Court a power to amend orders made pursuant to an agreed compromise of an enforcement action.
Conclusion
I would dismiss the appeal.
GRAY J.
This is an appeal from an order of a Judge of this Court allowing an appeal from the Environment, Resources and Development Court.
Carramatta Holdings Pty Ltd sought to reopen proceedings in the Environment, Resources and Development Court with a view to revoking or varying the terms of a consent order. The Judge of that Court dismissed the application on the basis that the Court’s jurisdiction had not been enlivened because of a binding agreement between the parties that led to the consent order. The Judge relied on the High Court decision in Harvey v Phillips. [23]
[23] Harvey v Phillips (1956) 95 CLR 235.
The Judge of this Court allowed the appeal and directed the matter be reheard in the Environment, Resources and Development Court. The Judge reasoned that, notwithstanding the underlying agreement between the parties, it was still open to the Court to exercise its jurisdiction to revoke or vary the consent order. The Judge considered that the decision of Harvey v Phillips did not apply.
I have reached the conclusion, for reasons that differ from those of the Judge under appeal, that it is appropriate for the application to be reheard in the Environment, Resources and Development Court. I respectfully disagree with the Judge under appeal as to the applicability of the decision in Harvey v Phillips. However, I have reached the view that there are many impediments to the enforceability of the binding agreement such that this Court does have jurisdiction to entertain the application to revoke or vary the consent order. I consider that the principle in Harvey v Phillips has prima facie application but that the facts and circumstances of the matter dictate that the Court may entertain the application. My reasons follow.
The matter has a long and complicated history. In reaching my conclusions I have had regard to the history. I have drawn on the detailed summary provided by the Judge of this Court in his reasons in the paragraphs that follow.
Background
Scott Thomas Rowlands is a director and shareholder of Carramatta. The company owns 831 hectares of land alongside cliffs at Bosanquet Bay, approximately five kilometres from Ceduna in a locality known as Ceduna Waters. In 2008, the land was owned by the third respondent Peter Norman Betts. Carramatta purchased the land from Mr Betts in August 2009.
Carramatta divided the land into two components and new titles were issued. The first, the coastal land, comprised 192 hectares and abutted the cliff tops. The majority of the coastal land was zoned coastal conservation under the District Council of Ceduna Development Plan. The balance of the land, the subdivision land, was zoned rural living under the Development Plan. Carramatta intended to subdivide the subdivision land into 384 allotments.
Carramatta commenced development works on the land. The Coast Protection Board claimed that by April 2008 Carramatta had cleared and levelled 5.5 hectares of sand dunes and spread the sand over approximately 13 hectares forming part of the coastal land. Upon intervention by the District Council of Ceduna, the Native Vegetation Council and the Board, Carramatta ceased these works. In May 2008, Dr Rowlands informed officers of the District Council and the Board that he was not aware that he required development approval to undertake the excavation or approval to clear native vegetation.

The works undertaken in April 2008 comprised “development” within the meaning of the Development Act 1993 (SA). The works involved excavation or filling within coastal land of more than 9 cubic metres,[24] and that they required approval by the relevant authority being the District Council.[25]
[24] Development Regulations 2008 (SA) schedule 2 clause 5.
[25] Development Act 1993 (SA) sections 32, 33.
In about April 2008, the Native Vegetation Council through the agency of the Department of Water, Land and Biodiversity Conservation served Carramatta with a direction under section 31E of the Native Vegetation Act 1991 (SA) requiring the cessation of all earthworks. That section relevantly provides:
(1)If an authorised officer who has been expressly authorised by the Minister to issue directions under this section has reasonable grounds on which to believe that a person has breached this Act, or is likely to breach this Act, the authorised officer may do such of the following as the officer considers necessary or appropriate in the circumstances:
(a)     direct the person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes, or would constitute, the breach;
(b)     if, in the opinion of the authorised officer, a breach has occurred and the breach is a minor breach—direct the person to make good the breach in a manner, and within a period, specified by the authorised officer;
(c)     take such urgent action as is required or is, in the opinion of the authorised officer, desirable because of any situation arising from the breach or likely breach (as the case may be).
…
(8)A person who contravenes or fails to comply with a direction under this section is guilty of an offence.
Maximum penalty: $10 000.
…
In July 2008, the District Council issued an enforcement notice under subsection 84(2) of the Development Act requiring Carramatta to remedy the breach of the Act. Section 84 relevantly provides:
(2)If a relevant authority has reason to believe on reasonable grounds that a person has breached this Act or a repealed Act, the relevant authority may do such of the following as the relevant authority considers necessary or appropriate in the circumstances:
(a)     direct a person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes the breach;
(b)     direct a person to make good any breach in a manner, and within a period, specified by the relevant authority;
(c)     take such urgent action as is required because of any situation resulting from the breach.
…
(11)A person who contravenes or fails to comply with a direction under this section is guilty of an offence.
Maximum penalty: $20 000.
Default penalty: $500.
Expiation fee: $750.
…
Carramatta appealed to the Environment, Resources and Development Court in respect of the enforcement notice.
On 16 October 2008, the Board commenced proceedings against Carramatta and Dr Rowlands, in the Environment, Resources and Development Court under section 85 of the Development Act. Mr Betts was joined as the third respondent to the action, being the owner of the land at the time of development. Section 85 provides:
(1)Any person may apply to the Court for an order to remedy or restrain a breach of this Act or a repealed Act (whether or not any right of that person has been or may be infringed by or as a consequence of that breach).
(2)Proceedings under this section may be brought in a representative capacity (but, if so, the consent of all persons on whose behalf the proceedings are brought must be obtained).
(3)If proceedings under this section are brought by a person other than a relevant authority, the applicant must serve a copy of the application on the relevant authority within three days after filing the application with the Court.
(4)An application may be made without notice to any person and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant permission to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.
(5)An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993.
(6)     If—
(a)     after hearing—
(i)     the applicant and the respondent; and
(ii)any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,
the Court is satisfied, on the balance of probabilities, that the respondent to      the application has breached this Act or a repealed Act; or
(b)     the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard,
the Court may, by order, exercise any of the following powers:
(c)     require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach;
(d)     require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court;
(e)     cancel or vary any development authorisation (other than an authorisation granted by the Governor);
(f)    require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses;
(g)     if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages—
(i)if the applicant is a council and the Crown has not become a party to the proceedings—to the council;
(ii)    in any other case—into the General Revenue of the State.
(7)     In assessing damages under subsection (6)(g), the Court must have regard to—
(a)     any detriment to the public interest resulting from the breach; and
(b)     any financial or other benefit that the respondent sought to gain by committing the breach; and
(c)     any other matter it considers relevant.
(8)The power conferred under subsection (6)(g) can only be exercised by a Judge of the Court.
(9)A relevant authority, and any person with a legal or equitable interest in land to which an application under this section relates, is entitled to appear, before a final order is made, and be heard in proceedings based on the application.
(10)If, on an application under this section or before the determination of the proceedings commenced by the application, the Court is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make an interim order under this section, the Court may make such an order.
(11)    An interim order—
(a)     may be made on an application without notice to any person; and
(b)     may be made whether or not the proceedings have been referred to a conference under subsection (5); and
(c)     will be made subject to such conditions as the Court thinks fit; and
(d)     will not operate after the proceedings in which it is made are finally determined.
(12)Where the Court makes an order under subsection (6)(d) and the respondent fails to comply with the order within the period specified by the Court, a relevant authority may cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.
(13)Where an amount is recoverable from a person by a relevant authority under subsection (12)—
(a)     the relevant authority may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and
(b)     the amount together with any interest charge so payable is until paid a charge in favour of the relevant authority on any land owned by the person.
(14)The Court may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a development authorisation that should have been but was not made, or to remedy any other default.
(15)    The Court may order an applicant in proceedings under this section—
(a)     to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed;
(b)     to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (16).
(16)    If on an application under this section the Court is satisfied—
(a)     that the respondent has not breached this Act or a repealed Act; and
(b)     that the respondent has suffered loss or damage as a result of the actions of the applicant; and
(c)     that in the circumstances it is appropriate to make an order under this provision,
the Court may, on the application of the respondent (and in addition to any order as to costs), require the applicant to pay to the respondent an amount, determined by the Court, to compensate the respondent for the loss or damage which the respondent has suffered.
(17)The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.
(17a)The Court may make such orders in relation to costs of proceedings under this section as it thinks fit.
(18)Proceedings under this section may be commenced at any time within three years after the date of the alleged breach or, with the authorisation of the Attorney-General, at any later time.
(19) An apparently genuine document purporting to be under the hand of the Attorney-General and to authorise the commencement of proceedings under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation.
The Board sought orders against Carramatta, Dr Rowlands and Mr Betts on the basis that work had been undertaken on the land contrary to section 32 of the Development Act. The proceedings arose out of the destruction of coastal dunes in the course of a development undertaken by Carramatta without approval from the District Council. The Board contended that if an application for development approval had been made, the Board would have been a statutory referral agency under the Development Act and Development Regulations 2008. The District Council applied for leave to be joined as a party to the action as Carramatta were appealing the enforcement notice pursuant to section 84(2) of the Development Act and because the District Council was the relevant authority for approval of the development under the Act.
On 17 October 2008, interim restraining orders were made. On 7 November 2008, the Environment, Resources and Development Court made a further interim consent order requiring Carramatta and Dr Rowlands to undertake works on the land, including the creation of stockpiles of sand into fenced areas. The interim consent order provided:
1.   Orders 2, 3, 4, 5, 6 and 7 of the orders made by this Honourable Court on 17 October 2008 in this matter shall cease to have effect forthwith.
2. Pursuant to s 85(10) of the Act, the Court restrains until further order, the First, Second and Third Respondents, from entering any contract or other agreement with respect to the sale or disposition of any part of the “impacted land”, as described in the affidavit of Sharie Anne Detmar dated 16 October 2008 filed herein. For the purposes of this paragraph and subsequent paragraphs, the “impacted land” is noted to be substantially, if not entirely, a part of Allotment 26 Decres Bay Road Ceduna (Allotment 26 DP 45533 in the area named Ceduna Hundred of Bonython with a Certificate of Title reference Volume 5431 Folio 719). The “impacted land” is furthermore marked red on the map attached hereto.
3. Pursuant to s 85(10) of the said Act, the Court restrains until further order the First, Second and Third Respondents from causing, suffering or permitting the placement of any moveable or immoveable structure on the impacted land whether temporary or permanent without the Applicant’s permission;
4. Pursuant to s 85(10) of the said Act, and subject to paragraph 8, the Court restrains until further order the First, Second and Third Respondents from causing, suffering or permitting any development to occur on the impacted land.
5. Pursuant to s 85(10) of the said Act, the Court restrains until further order the First, Second and Third Respondents from dealing with any part of Allotment 26 other than the impacted land in a way that prevents or impairs effective access to the impacted land for the purposes of its restoration;
6.   The Applicant or any person engaged by the Applicant for these purposes shall be at liberty to enter Allotment 26 in order to place stakes or other markers in the soil of the impacted land so as to delineate effectively the boundaries of the impacted land, which markers shall not be removed or disturbed by any of the First, Second and Third Respondents.
7.   The Applicant shall provide as soon as is practicable to each of the four Respondents a map with co-ordinates that define the boundaries of the impacted land but, for the avoidance of doubt, it is noted that the earlier paragraphs of this Order are not suspended pending provision of the said map.
8.   Notwithstanding paragraph 4, the First and Second Respondents shall, within 14 days from the date of this order, collect the sand which originated from the formations on the impacted land, and which has been spread over the impacted land and is within the area zoned Rural Living in the District Council of Ceduna Development Plan consolidated 16 October 2008, and stockpile that sand in the following manner –
(i)In the case of sand in the vicinity of native vegetation and fauna, by use of a back hoe or similar equipment (so as to prevent the impact on any native vegetation and fauna) with a view to collecting that sand to a position on the seaward side of the vegetation and from there the sand shall be collected and delivered to the stockpile areas as specified in subparagraph (iii);
(ii)In the case of sand not falling within subparagraph (i), by use of such machinery and methods as are reasonably practicable to collect and then transport the sand expeditiously to the stockpile areas as specified in subparagraph (iii);
(iii)The stockpiles shall be located within the areas marked “a” and “b” on the map attached (“the stockpile areas”);
(iv)The First and Second Respondent shall appropriately fence the stockpiles until further order to prevent the drift of sand by wind from the stockpile areas or intrusion into the stockpiles.
9.   The District Council of Ceduna shall agree with the Applicant upon a consultant and, after agreement, shall engage that consultant to monitor the collection and stockpiling of sand in a manner that prevents adverse effects on native vegetation and fauna. The consultant is to supervise all sandmoving and stabilising work at all times.
10.   Each respondent shall provide to the consultant free access to the land that they control or occupy.
11.   The First and Second Respondents shall reimburse the District Council of Ceduna for its reasonable costs of engaging the consultant to undertake the monitoring referred to at paragraph 9.
12.   Upon the Applicant providing written notice to the Respondents that the sand collection process referred to at paragraph 8 has been satisfactorily completed, the First, Second and Third Respondents will no longer be restrained from the actions in paragraph 2, 3 and 4 of this order with respect only to that portion of the land, including the impacted land, which is zoned Rural Living in the District Council of Ceduna Development Plan consolidated 16 October 2008.
An addendum to the interim order was agreed in November 2008, which provided for the use of earthmoving vehicles to carry out the sand moving works on 20 and 21 November 2008. On 28 November 2008, the Board provided written advice to the parties and the Environment, Resources and Development Court stating that the collection or stockpiling of sand had been satisfactorily completed.
On 17 October 2008, the application under section 85 of the Development Act had been referred to, pursuant to subsection (5), a conference under section 16 of the Environment, Resources and Development Court Act 1993 (SA). Section 16 relevantly provides:
(1) A relevant Act, or the rules, may provide that proceedings of a specified class must at first instance be referred to a conference under this section.
(2)The purpose of a conference is to enable the member of the Court presiding at the conference (appointed by the Senior Judge of the Court or selected in accordance with the rules) to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing.
…
(4)A conference may, at the discretion of the member of the Court presiding at the conference, be adjourned or reconvened from time to time.
(5)Unless otherwise determined by the member of the Court presiding at the conference, a conference will be held in private.
(6)Any settlement to which counsel or any other representative appearing on behalf of the party to the proceedings agrees at the conference is binding on the party.
(7)The member of the Court presiding at a conference may—
(a)     if that member is a magistrate or commissioner—refer any question of law to a Judge of the Court for determination;
(b)     require a party to the proceedings to furnish particulars of his or her case;
(c)     determine who, apart from the parties to the proceedings (and their     representatives), may be present at the conference.
(d)     subject to subsection (9), record any settlement reached at a conference and make any determination or order (including an order under, or for the purposes of, a relevant Act) necessary to give effect to a settlement;
(e)     on his or her own initiative, close the conference at any time if, in his or her opinion, settlement cannot be reached;
(f)    advise the Court if the conference does not reach a settlement within a reasonable time;
(g)     permit a party to withdraw from the proceedings (and make any consequential order that is appropriate in the circumstances);
(h)     give summary judgment (with costs) against any party who obstructs or delays the conference, fails to attend the conference or fails to comply with a regulation, or a rule or order of the Court;
(i)    do such other things as the rules of the Court may provide.
(8)Evidence of anything said or done in the course of a conference under this section is inadmissible in proceedings before the Court except by consent of all parties to the proceedings.
(9)The member of the Court presiding at a conference—
(a)     must not accept a settlement that appears to be inconsistent with a relevant Act (but he or she may adjourn the proceedings to enable the parties to explore the possibility of varying the settlement to comply with a relevant Act); and
(b)     may decline to accept a settlement on the basis that the settlement may materially prejudice any person who was not represented at the conference but who has a direct or material interest in the matter.
(10)If the member of the Court presiding at a conference is unable to continue with the conference, another member of the Court may be appointed to continue and complete the conference.
(11)Unless all parties to the proceedings agree to his or her continued participation, the member of the Court who presided at the conference is disqualified from sitting as a member of the Court for the purpose of hearing and determining the matter.

The purpose of the section 16 conference was to enable a member of the Court presiding at the conference to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing. Carramatta, Dr Rowlands, the Board and the District Council were legally represented at the conference. The conference took place in numerous sessions over a period of about 18 months. The parties agreed to a resolution of the matters in dispute. The member of the Court presiding at the conference then acted pursuant to section 16(7)(d) of the Environment, Resources and Development Court Act to record the settlement reached at the conference and made an order necessary to give effect to the settlement. Carramatta subsequently withdrew their appeal against the District Council in respect of enforcement notice issued pursuant to section 84(2) of the Development Act, the matter having been heard sequentially with the proceedings brought by the Board.
On 27 January 2010, in anticipation of the consent order to be made, Carramatta made an application to the Native Vegetation Council for approval to clear vegetation. This application was forwarded to the Crown Solicitor’s Office as solicitors for the Native Vegetation Council.
On 31 March 2010, a Commissioner of the Environment, Resources and Development Court made the consent order pursuant to section 85 of the Development Act. The terms of the order were as follows:
Upon the parties in this matter reaching a settlement at a conference held pursuant to s16 of the Environment, Resources and Development Court Act 1993, the Court being satisfied that the First and Second Respondents have breached the Development Act in respect to certain land part of allotment 26 Decrees Bay Road Ceduna (allotment 1003 of DP 81988) and pursuant to the powers in s85(6)(d) of the Development Act 1993 the Court hereby makes the following orders by consent to make good the said breach:
1.The First and Second Respondents shall revegetate, rehabilitate and preserve vegetation on the “impacted land” substantially but not entirely, a part of Allotment 26 Decrees Bay Road Ceduna (allotment 1003 of DP 81988) in the area named Ceduna Hundred of Bonython with a Certificate of Title reference Volume 5431 Folio 719, the “impacted land” is furthermore marked red on the map annexed hereto and marked Attachment “1”, in accordance with the Coastal Site Assessment & Rehabilitation Plan for Ceduna Waters Development Ceduna Eyre Peninsula by Larry Bebbington and dated September 2009 (V6 March 11 2010) annexed hereto and marked Attachment “2” (The Plan).
2.The Plan may be amended where such amendment is agreed in writing by the Applicant and the First, Second and Fourth Respondents.
3.The project as described in the Plan is to be managed by Mr Larry Bebbington or another suitably qualified consultant as agreed in writing by the Applicant and the Fourth Respondent.
4.The First and Second Respondents must implement any recommendations that may be made from time to time by the consultant managing the project.
5.The project is to commence at a time recommended by the consultant managing the project.
6.The baseline survey to be used for determining the heights of the dunes is the survey undertaken in May 2009, annexed hereto and marked Attachment “3”.
7.The First and Second Respondent must provide to the Applicant, certification from a licensed surveyor that the dunes meet the specifications of height, extent and location as detailed in the Plan and as approved in writing by the consultant managing the project as being sufficient to allow for the settling of unconsolidated sand to at least the heights detailed in the Plan.
8.The certification and approval in writing by the consultant detailed, in order 7 above, must be provided to the Applicant prior to any further works in the nature of revegetation works of the type described in section 3.0 of the Plan being undertaken on the land.
9.The First and Second Respondent must provide confirmation of the completion of the civil and revegetation works as detailed in the Plan (and in particular the works summarised in Table 3 in the column entitled “Project Works”) to the Applicant within 30 days of the completion of the civil and revegetation works.
10.The First and Second Respondent must provide to the Applicant, within 30 days of the date of the completion of the project, as determined by the consultant managing the project, confirmation in writing from the consultant managing the project that the project has in the opinion of the consultant, reached completion.
11.The orders made by this Honourable Court on 17 October 2008 and 7 November 2008 are hereby discharged and shall cease to have effect forthwith.
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To understand the full terms of the order and of the agreement, it is necessary to have regard to the attachments to the order. In particular, attachment two, the September 2009 Bebbington report, requires careful study. The 2009 Bebbington report makes reference to conditions of rehabilitation provided by the Board and appearing as appendix A to the Bebbington report. It is also of particular relevance that Carramatta and Dr Rowlands were obliged to implement any recommendations that may be made from time to time by the consultant managing the project, Mr Bebbington. Further, the project was to commence at a time recommended by Mr Bebbington.
Mr Bebbington’s report of September 2009 makes no reference to the Native Vegetation Council or the earlier referred to direction pursuant to section 31E of the Native Vegetation Act. However, it is apparent that the requirement for approval and the statutory direction were known to the parties.
On 24 March 2010, Carramatta made a further application for approval to clear native vegetation. Reference in this application was made to the earlier application of 27 January 2010. Apparently, those documents had not been processed and advice was given to Carramatta to re-lodge the documents, hence the application of 24 March 2010.
The applications of 27 January and 24 March 2010 were not acknowledged by the Native Vegetation Council secretariat until many months later. On 20 January 2011, the Native Vegetation Council advised that the application would be forwarded to the Native Vegetation Assessment Panel for a decision. No explanation for the delay of almost 12 months was provided. An application fee was required. On 15 February 2011, the application fee was forwarded.
More than 12 months later, on 24 April 2012, the Native Vegetation Council granted consent to clear native vegetation from the land to the extent necessary for the purpose of implementing the orders of 31 March 2010. The grant of consent was subject to conditions, including the following:
1.The removal of native vegetation must be undertaken in accordance with the “Coastal Site Assessment and Rehabilitation Plan, Ceduna Waters Development 2009” complied by Larry Bebbington which forms Attachment 2 to the Court Order in 419 of 2008;
2.That the person appointed as the supervisor of the project under or in accordance with the 31 March 2010 Court Order in number 419 of 2008 shall determine the extent of clearance of native vegetation that is necessary for the purposes of implementing the “Coastal Site Assessment and Rehabilitation Plan, September 2009”;
3.In the vicinity of the vegetation to remain, no planting or soil disturbance (including deep ripping or ploughing) to occur below the canopy, or within three meters beyond the outer edge of the canopy or any tree.
...
Notes for the applicant included the following:
1.Any clearance authorised by a formal Notification must be completed within two (2) years of the date of the Notification, or a longer time as allowed by the Native Vegetation Council.
2.You will require a new consent before commencing or continuing the development if you are unable to satisfy the conditions of a consent.
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The District Council commissioned Mr Bebbington to review the rehabilitation plan and Mr Bebbington produced further reports in December 2010, February 2011, and a revision of those reports in December 2011. The second report was finalised in February 2012. The reports of December 2010 and February 2011 were not before the Court. In his second report, Mr Bebbington provided the following summary:
The assessment of alleged illegally cleared sections of Lot 26 Hundred of Bonython Ceduna was requested on behalf of the District Council of Ceduna to determine the current status and densities of regenerating vegetation across the site under court order.
This report is an update to the December 2010 NVC report (VA2079/210) and February 2011 (VA3023/211) revision produced by L. Bebbington.
Due to the lengthy time frames involved in obtaining clearance approval of what was sparse regrowth in 2010 the following constraints have currently been identified within the rehabilitation envelope:
1.Average rainfall and cooler summer temperatures in 2011 stimulated high plant growth rates (including flowering / seed set) and additional seedling germination across c.80% of the site.
2.Secondary plant colonisers are now established in the vicinity of Dune B, the perimeter of Dune A and sheltered coastal cliff top sections.
3.Native fauna utilisation of the site has increased due to high levels of disturbance within the adjacent housing estate and the availability of suitable habitat in the southern sections of the rehab site.
4.Sand accretion at the base of Nitre Bushes in the southern section has created small hummock mounds across most of the southern area.
5.Additional sand loss has occurred from the stockpiles at Dune B and C and from the elevated scour point at Dune A – most of which has deposited at the base of plants in the south eastern area.
6.An increasing number of houses are being built on allotments adjacent to the eastern boundary of the rehabilitation site which will create additional issues regarding fugitive dust emissions during dune reconstruction.
The identified rehabilitation constraints are discussed below with brief summarised recommendations.
[Emphasis added.]
Mr Bebbington formed the view that, because of the delay in obtaining compliance approvals, the plant densities and diversity had significantly increased the complexity of site rehabilitation in the vicinity of two of the dunes. Mr Bebbington was of the opinion that a revision of the rehabilitation procedures was required to avoid the complete clearance of intact successional plant communities directly adjacent to dune rebuilding sites. In his view, the extensive clearance previously recommended would have a negative impact on native fauna that had now developed. Mr Bebbington considered that the initial recommendation for the clearance of regenerating sparse vegetation by slashing was no longer possible in the majority of areas. The only alternative in his view was to clear vegetation and level sand hummocks with a bulldozer. Such a technique would impact adversely on adjacent vegetation and wildlife and would set back vegetation and habitat establishment by three years. In Mr Bebbington’s opinion, it was necessary to discuss potential alternative construction techniques involving minimal damage to revegetation areas with the Board. In particular, there was a need to discuss footprint and height profile of the constructed dunes. Mr Bebbington was concerned about issues arising from the proximity of new housing and, in particular, that dust emission and air quality problems would need to be ratified by local government and the Board prior to the commencement of works. Mr Bebbington concluded:
Due to the dynamic nature of the site and the extended time frames involved in progressing the rehabilitation the author believes that a complete revision of the dune re-construction and site rehabilitation plan is required based on the identified points listed above. It is recommended that key personnel from the Coastal Management Board and the consultant organise a site meeting to address the identified issues and ratify any authorised alterations (if any) to the rehabilitation plan via the agencies involved in the compliance orders.
The Environment, Resources and Development Court Decision
On 22 March 2013, Carramatta filed an application to reopen the original proceedings and sought an order revoking, or in the alternative, varying the consent order, in the Environment, Resources and Development Court. The application was in the following terms:
The First and Second Respondents apply under pursuant to [sic] section 33 of the Environment Resources and Development Court Act and Rule 4.1(d) of the Environment Resources and Development Court Rules for the Court to re-open matter number 419 of 2008 so as to revoke or vary the Order made by the Court on 31 March 2010.
1The First and Second Respondents seek the revocation of the Order made by the Court on 31 March 2010, pursuant to section 33 of the Environment Resources and Development Court Act and Rule 4.1(d) of the Environment Resources and Development Court Rules.
2In the alternative to paragraph 1, the First and Second Respondents seek a variation of the Order made by the Court on 31 March 2010 made in this matter by Commissioner Hodgson on 31 March 2010 pursuant to section 33 of the Environment Resources and Development Court Act and Rule 4.1(d) of the Environment Resources and Development Court Rules.
3The First and Second Respondents seek any such further and other orders as the Court sees fit.
Section 33(2) of the Environment Resources and Development Court Act provides:
If, in proceedings before the Court under this or any other Act, or on an appeal to the Supreme Court from a decision or order of the Court under this Act, it appears to the relevant Court that—
(a) the proceedings or appeal could be resolved in a manner that is fair to all parties if certain modifications to the proceedings or appeal were made; and
(b) it would be conducive to the expeditious administration of justice if the powers conferred by this subsection were exercised,
the relevant Court may, by order, amend the application or appeal accordingly.
Rule 4.1 of the Environment Resources and Development Court Rules 2003 (SA) relevantly provides that:
The Court has power generally to give effect to the purpose of these Rules and, in particular may:
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(d) correct, revoke or vary any order by a subsequent order;
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The application to vary the consent order was made in the alternative to the revocation application and was made on the ground that changed circumstances at the site required a variation to the rehabilitation plan along the lines of the 2012 Bebbington report. The affidavit in support identified the grounds as follows:
Carramatta and [Dr Rowlands] therefore seek an Order that the Court reopen this matter to determine whether the Order made on 31 March 2010 should be revoked in light of the information contained herein and in particular the failure to properly establish the land that was the subject of the Order sought is within the ‘jurisdiction’ of the Coastal Protection Board having regard to the provisions of the Development Act 1993 and the Development Regulations 2008, and the actions of others who played a significant and influential role in disturbing the area. In the alternative that there be a variation to the Order including the requirement to comply with the original Bebbington Report having regard to the observations that I have made in relation to the land, and more particularly the information set out in the second Bebbington Report.
On 12 July 2013, this application was refused on the basis that, inter alia, the Environment, Resources and Development Court could only set aside or reopen a consent judgment where there are grounds sufficient to render the underlying contract void or voidable, and that such grounds had not been made out.
The Judge of the Environment, Resources and Development Court reasoned:[26]
[26] Coast Protection Board v Carramatta Holdings Pty Ltd [2013] SAERDC 37, [18]-[27].
The provisions of the Environment Resources and Development Court Act 1993 (‘ERD Court Act’) make it apparent that this Court is a court of record. As such the common law rules, with respect to matters such as setting aside judgments or orders, apply to this Court.
I should add at this point that, in my view, these rules apply with equal force to the Court’s jurisdiction to vary an order, particularly in circumstances where, as here, the variation would involve something more than a mere cosmetic departure from the original order.
I am also satisfied that there is no particular magic in the Order under consideration here, being a Consent Order. It has long been accepted that a consent judgment or order is just as effective as a judgment obtained after the conclusion of litigation. A consent judgment, like the one entered here, is usually entered after the parties have reached a settlement. The Consent Order then gives effect to the settlement or agreement which the parties have reached. It is because the Order gives effect to an agreement reached by the parties that the courts have likened the grounds, for setting aside such an Order, to those involved in setting aside a contract.
In short, where a judgment entered by consent embodies an agreement between the parties, by which an action is compromised, it will only be set aside on grounds sufficient to render a simple contract void or voidable.
These grounds, as articulated by the High Court, in Harvey v Phillips, include illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake and undue influence. I pause here to observe that there is no allegation in these proceedings of fraud or misrepresentation on the part of the Board.
In this context I have also had regard to the following observations of French J (as he then was) in ACCC v Real Estate Institute Incorporated, where his Honour said:
As I observed in the reasons for judgment in Australian Competition Consumer Commission v Real Estate of Western Australia Incorporated (1999) 161 ALR 79, there is a general principle of judicial restraint in the scrutiny of proposed settlements which was enunciated early in the Trade Practices Act. It is not the function of the court to impede settlements between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the court’s jurisdiction and are otherwise unobjectionable. The court will not substitute its own views in the orders or undertakings which it would have made if those proffered or arranged an appropriate disposition in the case. (my emphasis)
This then is the position at common law. It remains to consider whether the ERD Court Act or the Court Rules (in particular rule 4 (1)(d)) invest the Court with any wider powers to set aside or vary a consent judgment or order.
I am not persuaded that they do. Section 33 of the Act, in particular subs (2) of that section (relied upon as it was by counsel for Carramatta and Rowlands) speaks of the Court’s power to amend an application or an appeal, not a judgment. In my view s 33 has no application to the circumstances under consideration here.
Furthermore, I would not construe rule 4(1)(d) as providing any wider power. In this respect I agree with and adopt the remarks of Von Doussa J in Mohtar v Mohtar, where his Honour, when dealing with a similarly worded Supreme Court Rule (3.04(f)), concluded that the long established rules referred to in Harvey v Phillips will still apply. I note, in this respect, that his Honour’s decision on this point was recently cited with approval by the Full Court in one of the Players decisions.
Against this background of legal principle, I now turn to consider the specific grounds relied upon by Carramatta and Rowlands in support of their application.
[Footnotes omitted.]
The Appeal to a Single Judge of the Supreme Court

The decision of the Judge of the Environment, Resources and Development Court was the subject of a successful appeal to a Judge of this Court. On appeal, Carramatta relied principally on subsection 85(17) of the Development Act, and in the alternative, upon rule 4.1(d) of the Environment Resources and Development Court Rules. The Environment, Resources and Development Court Judge had held that the grounds relied upon by Carramatta to revoke the order were untenable and this was not challenged on appeal. The appeal was advanced on the basis that the primary Judge erred in holding that he had no power to vary the consent order.
The Board did not contend that the Court’s power under rule 4.1(d) of the Environment Resources and Development Court Rules was limited or fettered, but rather submitted that the proper exercise of that discretion will always require a consent order based upon a compromise agreement being set aside only if the underlying agreement itself should be set aside. In respect of subsection 85(17) of the Development Act, the Board contended that the power is confined to the variation or revocation of an interim order, and in the alternative, submitted that for section 85(17) to operate, the Court should be persuaded that the underlying agreement should be set aside. As cited above, section 85(17) provides that:
The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.
The Judge concluded:[27]
... In respect of the power conferred by subsection 85(17) to revoke an order, ordinarily it might be expected that a Court would not make a revocation order where the original order was made by consent founded on an underlying agreement without being persuaded that the underlying agreement should be set aside. Nevertheless it is theoretically possible that there might be circumstances in which it is appropriate to revoke the consent order even though there are no grounds to set aside the underlying agreement. Conversely, if an underlying agreement is set aside, it would ordinarily be appropriate to revoke the order and not merely to vary it.
[27] Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [50].
The Judge distinguished the decision of the High Court in Harvey v Phillips:[28]
... Harvey v Phillips deals with the inherent jurisdiction of a superior court and not a statutory power such as that conferred by section 85(17). The principle in Harvey v Phillips relates to an application to set aside a consent monetary judgment which is quite different to an application to vary a complex remedial order. ...
The Judge held that the power under section 85(17) of the Development Act should be exercised where it is “appropriate for the Environment Court to vary the original order.”[29]
[28] Harvey v Phillips (1956) 95 CLR 235; Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [52].
[29] Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [64] (original emphasis).
The Judge found it strictly unnecessary to consider rule 4.1(d) of the Environment Resources and Development Court Rules, having concluded that section 85(17) of the Development Act was an available source of power. However, the Judge made some brief observations on that provision. The Judge relied on the decision of the Full Court in Players Pty Ltd (in liq) (rec apptd) v Clone Pty Ltd,[30] a decision on the scope of a similar provision in the Supreme Court Civil Rules 2006 (SA). In doing so, the Judge held that:[31]
... In an ordinary case, it may be expected that a simple consent judgment for a monetary sum will only be set aside in the exercise of the discretion where the underlying agreement should be set aside. By contrast, in circumstances involving a consent order of the complexity and in the dynamic circumstances involved in the present case, the discretion under rule 4(1)(d) to vary a consent order is not confined to circumstances in which the underling agreement should be set aside. When materially changed circumstances render it appropriate, the order may be varied.
The Judge of the Environment, Resources and Development Court had held that even if he had found the Court did have power to reopen the proceedings, he would not have exercised his discretion to reopen the matter. The Judge of this Court held that this exercise of discretion was vitiated on the basis that the Judge of the Environment, Resources and Development Court had erred in finding that there was no arguable ground for varying the consent order. His Honour held that the Judge of the Environment, Resources and Development Court had erred in his conclusion that no arguable ground was demonstrated by the 2012 Bebbington report. The matter was remitted to the Environment, Resources and Development Court to determine Carramatta and Dr Rowlands’ application to vary the consent order under section 85(17) of the Development Act.
[30] Players Pty Ltd (in liq) (rec apptd) v Clone Pty Ltd (2013) 115 SASR 547.
[31] Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [63].
On 16 May 2014, the Board was granted permission to appeal to the Full Court.
The Appeal to the Full Court
On the appeal to this Court, the Board submitted that the Judge erred in law in deciding that the Environment, Resources and Development Court has power under section 85(17) of the Development Act or rule 4.1(d) of the Environment, Resources and Development Court Rules to revoke or vary an order made by consent following a settlement agreed at a conference in the absence of any finding sufficient to warrant the settlement being set aside as void or voidable at common law.
The Statutory Regime
The proceedings against Carramatta and Dr Rowlands were brought under section 85 of the Development Act, which is set out above in these reasons. Those proceedings belong to a statutory class of action known as civil enforcement proceedings. The proceedings were directed toward requiring a restoration of the sand dunes and vegetation in the affected area.
Section 85(5) of the Development Act mandates that proceedings under that section be referred to a conference under section 16 of the Environment, Resources and Development Court Act. The evident purpose of these provisions is to encourage and facilitate the resolution of the matters in dispute by the agreement of the parties without the need to resort to a formal hearing. Section 16(6) of the Environment, Resources and Development Court Act is explicit that agreements reached between the parties are, in the words of the subsection, binding:
Any settlement to which counsel or any other representative appearing on behalf of the party to the proceedings agrees at the conference is binding on the party.
In the present proceeding, as discussed above, settlement was reached at the section 16 conference. Accordingly, having regard to the terms of section 16(6) of the Environment, Resources and Development Court Act, the settlement was binding on the parties. In particular, amendments to the plan the subject of the settlement were to be agreed in writing by the Board, Carramatta, Dr Rowlands and the District Council.
As noted above, section 85(17) of the Development Act provides that the Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order made under section 85. In the present case, the order made at the section 16 conference included an order under section 85(6)(d) of the Development Act requiring Carramatta to make good the breach in the manner specified.
Submissions
The Board submitted that section 16 conferences are an entrenched feature of the Environment, Resources and Development Court’s administration of justice as a specialist planning and environmental court. Section 16 of the Environment, Resources and Development Court Act envisages that matters can be referred to conference under statutes such as the Development Act. Further, pursuant to section 16(7)(d) of the Environment, Resources and Development Court Act consent orders can be entered to allow for the finalisation of litigation.
In relation to section 85(17) of the Development Act, the Board submitted that by virtue of the words “if it considers it appropriate to do so”, the Court does not have complete discretion, but rather there is a threshold criterion for the exercise of the power, at least in so far as it applies to final orders. In this regard, the Board contended that the Court must determine whether the making of a new order revoking or varying the existing order is appropriate in the circumstances of each case.
The Board submitted that the Court must consider the concept of appropriateness in the context of proceedings that have already been brought before the Court and concluded. The Board further submitted that section 85 of the Development Act and section 16 of the Environment, Resources and Development Court Act must be read together as section 85(5) expressly refers to section 16. The Board suggested that settlement of litigation, as referred to in section 16 of the Environment, Resources and Development Court Act, is not provisional. It finalises litigation without any necessary determination of the merits.
The Board explained that, in order to record the settlement, the Environment, Resources and Development Court is not required to determine any of the factual or legal matters in contention. The duty of the Court is set out in section 16(9) of the Environment, Resources and Development Court Act, which requires the Court to ensure the settlement is one that lies within the jurisdiction of the Court, is not inconsistent with a relevant Act and does not prejudice a person who is not represented at the conference but who has a direct or material interest in the proceedings. The Board referred to the comments of French J, as his Honour then was, in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc:[32]
As I observed in the reasons for judgment in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 there is a general principle of judicial restraint in the scrutiny of proposed settlements which was enunciated early in the history of the Trade Practices Act. It is not the function of the Court to impede settlements between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the Court's jurisdiction and are otherwise unobjectionable. The Court will not substitute its own view of the orders or undertakings which it would have made if those proffered fall within the range of an appropriate disposition in the case.
[32] Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114, 131.
The Board further submitted that the treatment of Harvey v Phillips was flawed. In particular, it was said that the Judge’s confinement of Harvey v Phillips to monetary judgments was not supported by the reasons of the High Court. The Board said that the principle of that case was that a consent judgment, whether for the payment of money or not, is intended by parties to finalise their litigation, subject only to the right of the parties to reopen that litigation if the parties expressly agree on such a course. Accordingly the Board contended that in order to set aside a consent judgment, the Court must also set aside the underlying agreement giving rise to those consent orders. This would require the Court to find that the agreement can be impeached. The Board referred to the observations of the Environment, Resources and Development Court Judge:[33]
It is because the Order gives effect to an agreement reached by the parties that the courts have likened the grounds, for setting aside such an Order, to those involved in setting aside a contract.
[33] Coast Protection Board v Carramatta Holdings Pty Ltd [2013] SAERDC 37, [20].
The Board expressed concern that, if the Judge of this Court was correct in his interpretation of Harvey v Phillips, parties cannot finally conclude their litigation, except in the case of simple monetary judgments. The Board further contended that, if the Judge was correct in his reasoning, persons sued by an enforcement authority for allegedly unlawful environmental harm would be unable accept liability and agree to make good an alleged breach without risk that the enforcement authority may seek wider orders in the future if there are materially changed circumstances.
The Board accepted that in distinction to Harvey v Phillips, the discretion given in section 85(17) of the Development Act is conferred by statute, rather than an inherent power of the Court. The Board also accepted that it was open to Parliament to arm a court with an express statutory power to amend consent orders where no common law basis for setting aside the order existed. However, the Board contended that one would expect such a power to be express and, in light of the established common law rules governing the finality of litigation, such a power could not be implied within the section.
The Board submitted that section 16 of the Environment, Resources and Development Act contemplates that the proceedings would be settled in accordance with common law rules. The Board further submitted that those rules regulate when the settlement may be set aside or varied and if, as in the present case, the terms of the settlement are such that the parties must agree to any alteration, it is clear that the settlement terms cannot be altered without those parties’ consent. The Board maintained that common law rules governing the setting aside of consent judgments should inform and control the exercise of the statutory power contained within section 85(17) of the Development Act.
The Board further submitted that if the Judge of this Court was correct in his approach, then the Board should be entitled to reopen the litigation such that further remediation could be considered in light of any changed circumstances.
Carramatta supported the conclusions of the Judge of this Court. In particular it was submitted that the power conferred by the relevant statutory provisions is not fettered. The only limit on the Court’s discretion to vary an order, of any type, is that the Court considers that such an order is appropriate. It was said to be erroneous to further limit the discretion.
The statutory provision invests the Court with the power to revoke or vary any order, either on application or of its own motion, if the Court considers it appropriate to do so. Carramatta submitted that proceedings pursuant to section 85 of the Development Act are public interest proceedings, in that they may be commenced by any person and the court is not bound to give effect to any agreement of the parties. The Court has the final decision on whether any order should be made. Carramatta referred to the reasons of the Judge of this Court:[34]
Most importantly, section 85 covers a broad front of addressing the remedying or restraint of any breach of the Act. There are diverse types of breaches of the Act. Remedying a breach of the Act will sometimes involve taking a single, simple and final step. More often, remedying a breach will involve the Environment Court ordering the contravener to take a complex and dynamic set of actions over an extended time. This is exemplified by the present case, in which the 2010 consent order required Carramatta to take a complex series of successive steps, with later steps being dependent upon successful completion of earlier steps. When the Environment Court makes an order for remedial action, the purpose of subsection 85(6) would often be frustrated if the Court could exercise the power to identify and order the remedial action once only and were then functus officio, powerless to make further orders as circumstances evolved. Similarly when the Environment Court makes a restraining order, the purpose of subsection 85(6) would often be frustrated if the Court could not vary the restraining order as circumstances evolve. There is an obvious mischief addressed by subsection 85(17) in conferring upon the Environment Court an ongoing power to vary or revoke an order previously made under subsection 85(6) to achieve the very purpose of section 85.
...
Subsection 85(17) is not confined to conferring a power of revocation. It also confers upon the Court a power to vary a previous order. Changing circumstances of the type identified ... above are just as likely to apply in the case of consent orders as they are to orders made after a contested hearing. Indeed they are inherently less likely to have been anticipated in advance in the absence of a full hearing leading to the order. There is no reason to confine the broad power conferred by subsection 85(17) to vary a previous order as applying only to previous orders made after a contested hearing and against the opposition of the respondent to the proceedings.
[34] Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [44], [56].
Carramatta contended that it was of relevance that the settlement reached at the conference which gave rise to the consent order could not be enforced or implemented without invoking the assistance of the Court to carry the compromise into effect. Carramatta submitted in the alternative that any agreement was subject to the express statutory power of the Court to vary any order giving effect to the agreement where it considered it appropriate to do so. Consequently it was submitted that in proceedings referred to conference pursuant to section 85(5) of the Development Act, the parties to the particular action do not control the resolution of the matter by agreement and, in such cases, ultimately the Court must determine whether to make an order which is necessary to give effect to any settlement. Attention was drawn to the following remarks of the High Court in Harvey v Phillips:[35]
... It is not a case where the assistance of the court is sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it. In such a case assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract. …
[35] Harvey v Phillips (1959) 95 CLR 235, 242 – 243.
It was submitted that these proceedings, where settlement was reached with the assistance of the Court, could be distinguished from private litigation between parties where a consent judgment is entered which records an anterior contract. An anterior contract could be enforced, notwithstanding the judgment being set aside, which would result in an absurdity and forms the basis for the common law rules referred to by the Board and expressed in Harvey v Phillips. Carramatta submitted that the powers conferred by section 85 of the Development Act are discretionary remedial powers to be exercised by the Court in the public interest having regard to the objectives of the Act and the Board has no private interest to protect or enforce.
Discussion
The legislative scheme has the specific purpose of encouraging settlement of issues in dispute. This is evidenced, inter alia, by the mandatory referral of matters to a section 16 conference. That conference is to be presided over by a member of the Court with a view to assisting the parties to reach a resolution. Parliament’s intention that an agreement to settle a matter would be binding on the parties is made express by section 16(6) of the Environment, Resources and Development Court Act.
Harvey v Phillips involved a claim for damages for personal injury. At trial, the matter was settled and terms of consent were signed by the parties. The Judge adjourned the Court. Soon after, the plaintiff claimed that she had not consented to the settlement and applied to the Full Court of the Supreme Court of New South Wales to set aside the judgment. At that time, judgment had not been signed or entered. The Full Court dismissed the plaintiff’s application. The High Court dismissed the appeal. The High Court proceeded on the basis that the plaintiff was bound to the settlement pursuant to the instructions that she had given to her counsel, who had then acted with her authority. The Court said:[36]
The learned judge authorized the entry of judgment in accordance with the terms of settlement drawn up. Judgment has not in fact been signed or entered, so we were informed. Had judgment been signed it may be doubted whether it was open to the plaintiff to attack it by making an application to the Full Court in the action to set aside the judgment and compromise. No objection was made on this score. But the difficulty which confronts the plaintiff is that her counsel when he signed the terms of settlement acted in accordance with the authority which she gave in the manner described by Mr. Beard. If the question whether the compromise should be set aside was a matter depending upon the discretion of the court, the course of events which led her, after she left the judge's chambers, at length to give way and express a consent might be very material. But in the circumstances of this case it does not appear to us that the court possesses a discretion to set aside the compromise or to intercept the formal entry of judgment. It is not a case of misapprehension or mistake made by counsel in consenting to an order or settlement: cf. Hickman v. Berens. It is not a case where the assistance of the court is sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it. In such a case the assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract. It is not a case where a compromise has been agreed upon by counsel acting only in pursuance of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client's instructions or in excess of some limitation that has been expressly placed on his authority. In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the court to refuse to give effect to or act upon the compromise and perhaps to set it aside…
[Footnotes omitted.]
[36] Harvey v Phillips (1956) 95 CLR 235, 242-3.

In Mohtar v Mohtar, Von Doussa J held:[37]
… Harvey v. Phillips (supra) recognises that where a contract is on foot, the entitlement of a party to equitable relief on grounds such as duress, undue influence, abuse of confidence and the like, may provide the occasion for the exercise of a power to set aside a judgment which embodies the contract. …
[37] Mohtar v Mohtar (1984) 146 LSJS 377, 392.
There is nothing in the provisions of the Development Act that would limit the application of the Harvey v Phillips doctrine in its application to the statutory power of the Court to vary or revoke an order. That the power is conditioned on the Court forming a view that it would be appropriate to do so is, to my mind, no reason to exclude the common law doctrine enunciated in Harvey v Phillips.
The decision in Harvey v Phillips has been widely applied in all Australian jurisdictions and is recognition of finality to proceedings following an agreement between the parties. I consider that the explicit reference in section 16(6) of the Environment, Resources and Development Act to the agreement being binding confirms and reinforces the rule in Harvey v Phillips.
I respectfully disagree with the suggestion that Harvey v Phillips is to be read down to the particular circumstances there confronting the Court. No authority has suggested that such a narrow approach be taken to Harvey v Phillips. It is significant that no reference is made at all by the Judge to the wording of section 16(6) of the Environment, Resources and Development Act.
In the present case, the Board was not content to simply reach an agreement with Carramatta and the other parties. The Board sought not only the recording of the settlement but the making of orders by the Court necessary to give effect to the settlement. The Board obtained, in effect, a mandatory injunctive order that Carramatta and its director, Dr Rowlands, revegetate, rehabilitate and preserve vegetation on the impacted land in accordance with the 2009 Bebbington report.
It is also relevant that a term of the parties’ agreement and the consequent order of the Court was that Carramatta and Dr Rowlands were obliged to implement any recommendations that may be made from time to time by the consultant managing the project, presently Mr Bebbington. This consequent order contains an important provision. On its face, it would suggest that Mr Bebbington may recommend an implementation that is a variation to his 2009 report.
The order that Carramatta implement any recommendations to be made from time to time by the consultant managing the project is troubling. The obligation is open ended as a consequence of the use of the words “any recommendations”.
In the present proceeding, the question of further recommendations by Mr Bebbington has been addressed. The Judge of the Environment, Resources and Development Court discussed the matter as follows:[38]
[38] Coast Protection Board v Carramatta Holdings Pty Ltd [2013] SAERDC 37, [35]-[39].
It is not in the least bit surprising to me that, given the passage of time, there would be changes to the local topography and the state of the revegetation of the land.
I will accept for present purposes that there may be other ways to restore the land. However, I note, from one of the affidavits of Rowlands, the following comments on this issue which he attributes to Mr Bebbington namely:
Mr Bebbington also made comment that given the effluxion of time, the original report/plan was only one option in dealing with the land especially as Ceduna had experienced two good growing seasons since 2010 when the order was made. (my emphasis)
And:
Mr Bebbington concluded our discussion by saying that he would need to visit the site prior to making any determination regarding the appropriateness of the original remediation plan but he viewed the site being left to re-occur naturally, as referred to in the second Bebbington report, as being equally meritorious. (my emphasis)
I also note that Ms Detmar, in her affidavit, summarised Mr Bebbington’s position as being that the Plan identified in the Consent Order could still be implemented.
The fact that there may now be other (possibly better) options does not mean that the Plan cannot be implemented and that the Order should now be set aside to explore other possible alternatives.
[Footnotes omitted.]
The Judge of this Court, in his reasons, made the following observations concerning Mr Bebbington’s further report:[39]
In his 2012 report, Mr Bebbington identified changes which had occurred since the Rehabilitation Plan was prepared. Those changes included sand loss from some areas in the vicinity of each of dunes A, B and C, sand accretion in other areas, extensive plant colonisation due to favourable weather and increased native fauna utilisation of the site.
Mr Bebbington expressed the opinion that construction of dune A per the original approved design was still possible with minimal disturbance to regenerating vegetation. However, he considered that it was necessary to modify the design for the rehabilitation of dunes B and C due to the changes. He said:
Sand accretion and Aeolian erosion has continued across the disturbed site with erosion through wind scour occurring predominantly at exposed areas surrounding Dune A and B and accretion occurring to the south east of all sections below Dune B. ... In excess of 50mm of sand has eroded from areas to the south and east of Dune B and has now been deposited at the base of Nitre Bush Shrublands to the east of Dune C. Whilst the accretion of sands at the base of shrubs in this area has enabled more seedlings to establish and has stopped the migration of sand off site to the south it has created extensive areas of small vegetated dune “knobs” between 60cm to 1m high. Whilst the creation of the vegetated knobs or hummocks is part of the natural cycles on coastlines it creates problems with on site vegetation clearance associated with dune construction. As previously stated the initial recommendation for clearance of regenerating sparse vegetation was to slash plants with a tractor mounted slasher. This is no longer possible in the majority of areas due to the presence of the vegetated sand hummocks which disallow the use of a slasher due to uneven terrain. The only alternative to slashing to produce the necessary working platform for dune reconstruction would be to clear vegetation and to level sand hummocks with a dozer. This technique will impact on adjacent vegetation and wildlife habitat and will potentially set back vegetation / habitat establishment adjacent to the dune footprints 3 years.
Alternative construction techniques involving minimal damage to revegetated areas may be possible for Dune B and potentially northern sections of Dune C which are more accessible via non vegetated scour points. However, altered dune design would require on site discussion with CMB staff for approvals as the footprint and height profiles of the constructed dunes would not match the dune profiles deemed acceptable by the CMB.
...
Due to the dynamic nature of the site and the extended time frames involved in progressing the rehabilitation the author believes that a complete revision of the dune re construction and site rehabilitation plan is required based on the identified points listed above. It is recommended that key personnel from the Coastal Management Board and the consultant organise a site meeting to address the identified issues and ratify any authorised alterations (if any) to the rehabilitation plan via the agencies involved in the compliance orders.
[39] Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [66]-[67].
In my view, considerable difficulties would arise if the Board sought to enforce the consent order against Carramatta and Dr Rowlands. As noted above, the consent order, inter alia, included mandatory obligations. The consent order could be described as being an order in the nature of a mandatory injunction.
It is settled that an injunction will not be granted unless the recipient is in a position to know exactly what he is obliged to do. Lord Upjohn in Redland Bricks Ltd v Morris[40] cited with approval Sargant J in Kennard v Cory Bros. & Co. Ltd, who said:[41]
If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.
[40] Redland Bricks Ltd v Morris [1970] AC 652.
[41] Redland Bricks Ltd v Morris[1970] AC 652, 666; Kennard v Cory Bros. & Co. Ltd [1922] 1 Ch 265, 274.
As the authors observe in Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, the reason for this rule is the severity of the penalties for disobedience to an injunction.[42]
[42] J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5^th ed, 2015) 785.
Although no application has been made in respect of noncompliance with this order, counsel for the Board submitted that contempt proceedings could follow. Courts are hesitant to make mandatory injunctive orders due to the fact that they require ongoing judicial supervision and because the main means by which such orders are enforced is in the nature of a criminal penalty; failure by a party to comply with an order constitutes contempt and the Court could, on that basis, impose a fine, sentence of imprisonment or a bond to be of good behaviour.[43] For contempt proceedings to ensue, the Board would need to inform the Court that the order had not been complied with. The Court may then direct the Registrar to issue a summons.
[43] Environment Resources and Development Court Rules 2003 (SA) rule 15.11.1.
In my view, it is highly improbable that a court would find Carramatta or Dr Rowlands guilty of contempt. For a charge of contempt to be made out, the undertaking the subject of the order must be unambiguous.[44] In this case the order is replete with ambiguity. One example is the clause that Carramatta implement any recommendations of Mr Bebbington.
[44] Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 503, 515-6.
I have also had consideration as to whether the Environment Resources and Development Court could make an order, either by virtue of its ancillary jurisdiction or pursuant to section 85(12) of the Development Act, allowing a third party to complete the remainder of the project the subject of the original plan. Section 85(12) provides:
Where the Court makes an order under subsection (6)(d) and the respondent fails to comply with the order within the period specified by the Court, a relevant authority may cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.
The Board is not a relevant authority for the purposes of section 85 of the Development Act. The relevant authority is the District Council and, in all likelihood, the District Council would decline to cause the work to be carried out. Earlier in these reasons reference has been made to the commissioning by the District Council of the second Bebbington report. In my view, considering the fact that such a remedy is covered under sections 84 and 85 of the Development Act, and in circumstances where the Board would not have standing to utilise the remedies pursuant to those sections of the Act, such an order could not be made through the Court’s ancillary jurisdiction.
Conclusion
As is evident from these reasons, I consider that the decision in Harvey v Phillips does apply to the agreement the subject of the consent order of a member of the Environment, Resources and Development Court. I do not consider that the statutory provisions provide a basis for distinguishing that decision. As the section itself provides, the agreement the subject of the consent order was binding.
An examination of the facts, however, reveals major impediments to the enforcement of the order. As discussed above, the order by its terms incorporated the report of Mr Bebbington. The obligations of Carramatta were specifically subject to the further recommendations of Mr Bebbington and the works were to commence at a time specified by him. It is readily apparent that Mr Bebbington no longer considers the agreed scope of work to be practical, achievable or appropriate.
An examination of the facts reveals that, because of the delays of the Native Vegetation Council, it was not possible for Carramatta to commence the work the subject of the agreement and consent order for several years. By the time the relevant consents were forthcoming there had been significant changes that were the subject of Mr Bebbington’s further reports. The extensive delays by the Native Vegetation Council have not been explained and, prima facie, appear inexcusable. It is clear, however, that the delay was not the responsibility of Carramatta. The evidence reveals that Carramatta wished to meet the terms of its agreement and the consent order but matters beyond its control prevented it doing so.
In my view, the appeal from the decision of the Judge of this Court should be dismissed. The proceedings should be remitted to the Environment, Resources and Development Court for rehearing. It will be necessary for the parties to consider those proceedings having regard to these reasons.
STANLEY J: This appeal involves consideration of the extent of the power conferred on the Environment, Resources and Development Court (the ERD Court) by s 85(17) of the Development Act 1993 (SA) (the Development Act). Section 85(17) provides:
The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.
At issue is whether the power conferred pursuant to s 85(17) permits the ERD Court to vary or revoke a remedial order previously made by consent pursuant to s 85(6) of the Development Act. Section 85(6) confers power upon the ERD Court, inter alia, to make orders requiring a person to refrain from action constituting a breach of the Development Act and/or to make good the breach.
In this case an application for an order pursuant to s 85(6) was referred to a conference under s 16 of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Court Act) pursuant to s 85(5) of the Development Act. A settlement between the parties was reached at that conference. The Court made orders in conference by consent embodying the terms of the settlement. The question to which this appeal gives rise is whether the power conferred by s 85(17) of the Development Act permits the ERD Court to vary or revoke a remedial order made by the ERD Court with the consent of the parties pursuant to s 85(6) only in circumstances where a court would be empowered to set aside the underlying agreement in accordance with the principle in Harvey v Phillips.[45]
[45] [1956] HCA 27, (1956) 95 CLR 235.
For the reasons given by the Chief Justice, I consider the ambit of the power conferred on the ERD Court by s 85(17) is not so constrained. In deference to the contrary argument I wish to add the following observations.
In Harvey v Phillips[46] the High Court held that a compromise of an action is only to be set aside by a court where grounds exist which would render the underlying contract void or voidable or which would entitle a party to equitable relief on grounds such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.[47] The principle in Harvey v Phillips[48] is concerned with the enforcement of the rights, duties and liabilities of private litigants. The principle in Harvey v Phillips[49] is informed by public policy considerations favouring the finality of litigation. The importance of the principle that there be finality to litigation where parties have consented to judgment is self-evident where the jurisdiction of the court has been invoked in the resolution of disputes involving private interests.
[46] [1956] HCA 27, (1956) 95 CLR 235.
[47] [1956] HCA 27, (1956) 95 CLR 235 at 243 – 244.
[48] [1956] HCA 27, (1956) 95 CLR 235.
[49] [1956] HCA 27, (1956) 95 CLR 235.
The Development Act is not concerned solely with the regulation of private interests. In establishing a system of planning the Development Act is intended to protect the public interest. The public interest is protected inter alia by the mechanisms enshrined in the Development Act which empower the ERD Court to make remedial orders where a person has undertaken development in contravention of the Development Act. The power conferred by s 85(17) is integral to the statutory scheme established by s 85 for the making of remedial orders. The power conferred to vary or revoke a remedial order enables the ERD Court to craft remedies in a manner that is most effective and efficient in fulfilling the objects of the Development Act. As Blue J observed below, the ERD Court must exercise its powers in circumstances which are complex, dynamic and extend over a lengthy period of time. Recognition by the Parliament that circumstances can change justifies the conferral on the ERD Court of the power in s 85(17). There is nothing in the statutory framework and the policy that underlies it which suggests that the Parliament intended that the power conferred in s 85(17) should be confined to varying or revoking orders made by the court at the conclusion of a contested hearing or in the limited circumstances contemplated by the principle in Harvey v Phillips.[50] On the contrary, there is good reason why Parliament would have intended the ERD Court should be cloaked with power to vary or revoke any of its orders whether made by consent or after a contested hearing. Recognition of the important public purpose served by s 85 supports a construction of s 85(17) which gives full amplitude to the text of the subsection.
[50] [1956] HCA 27, (1956) 95 CLR 235.
The importance of the finality of proceedings is not irrelevant to the operation of s 85(17). It is a consideration which the ERD Court can weigh in exercising the discretion conferred by s 85(17) which conditions the exercise of the power upon the court being satisfied that it is appropriate for it to vary or revoke an enforcement order previously made pursuant to s 85. In some circumstances the fact that an enforcement order was made by consent may satisfy the court that the order should not be varied or revoked. The fact the order was made by consent is merely one of a multitude of considerations to be weighed by the court in the exercise of the discretion conferred. The maintenance and enforcement of the system of planning enshrined in the Development Act will sometimes require that the private interests of parties must be modified or subjugated to the larger public interest. The public interest which underpins the operation of s 85 leads me to the conclusion that the plain meaning of the words of s 85(17) should not be read down by reason of the principle in Harvey v Phillips.[51]
[51] [1956] HCA 27, (1956) 95 CLR 235.
I would dismiss the appeal.