The Coast Protection Board v Carramatta Holdings Pty Ltd

[2014] SASCFC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

THE COAST PROTECTION BOARD v CARRAMATTA HOLDINGS PTY LTD

[2014] SASCFC 47

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)

16 May 2014

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - GENERAL MATTERS

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - VARIATION AND SETTING ASIDE OF CONSENT JUDGMENT

This is an application for permission to appeal to the Full Court. The respondents allegedly breached the Development Act 1993 (SA) by clearing sand dunes in a coastal conservation zone without development approval. A Commissioner of the Environment, Resources and Development Court made a consent order under subsection 85(6) of the Development Act requiring the respondents to implement a rehabilitation plan. The respondents subsequently applied to vary the consent order in light of an expert’s report expressing the opinion that a new rehabilitation plan was required due to changes in circumstances in the affected area. A Judge of the Environment, Resources and Development Court refused the application on the basis that the Court had no power to vary the consent order in the absence of circumstances that would vitiate the underlying agreement. On appeal, a Judge of the Supreme Court held that the Environment, Resources and Development Court did have power to vary or revoke consent orders where it considered it appropriate to do so under subsection 85(17) of the Development Act.

Whether the Judge erred in holding that the Environment, Resources and Development Court had the power to vary or revoke orders made by consent in the absence of circumstances that would vitiate the underlying agreement.

Held (per the Court):

1.  Permission to appeal granted.  This appeal raises questions of general principle, namely the construction of statutory powers to re-open a judgment and the extent to which the exercise of those powers should be informed by common law rules.  These principles have significant implications for the Environment, Resources and Development Court and other courts and tribunals exercising powers conferred by statute.  These principles warrant consideration by the Full Court.

Development Act 1993 (SA) s 85, referred to.
Minister for Sustainability, Environment and Conservation v Zander [2013] SASCFC 129; Players Pty Ltd (in liq) (rec apptd) v Clone Pty Ltd (2013) SASR 547; Harvey v Phillips (1956) 95 CLR 235, considered.

THE COAST PROTECTION BOARD v CARRAMATTA HOLDINGS PTY LTD
[2014] SASCFC 47

FULL COURT:        Gray, Peek and Nicholson JJ

THE COURT.

1. This is an application for permission to appeal to the Full Court from a decision of Blue J dated 3 March 2014.[1]  For the reasons that follow, we would grant permission to appeal. 

   [1]    Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24.

2. On 16 October 2008, the applicant, the Coast Protection Board, commenced proceedings against the first and second respondents, Carramatta Holdings Pty Ltd and its managing director and sole shareholder, Scott Thomas Rowlands, in the Environment, Resources and Development Court.  The proceedings arose out of the destruction of coastal dunes in Ceduna Waters in the course of a development undertaken without approval from the Board.  Peter Norman Betts and the District Council of Ceduna were joined as they were, respectively, the owner of the land at the time of the development and the relevant authority for approval of development under the Development Act 1993 (SA).

3. On 31 March 2010, a Commissioner of the Environment, Resources and Development Court, having been satisfied that Carramatta Holdings and Mr Rowlands had breached the Development Act, ordered that they were to rehabilitate the sand dunes in accordance with a plan prepared by a consultant retained by the Council, Larry Bebbington.  The orders were made by consent and reflected an agreement reached following a conference of all parties.

4. Mr Bebbington was retained by the Council to prepare further reports.  By 2012, Mr Bebbington had formed the view that a complete revision of the rehabilitation plan was warranted due to changes in the affected area.  However, the Board insisted that the original rehabilitation plan be implemented. 

5. On 22 March 2013, Carramatta Holdings and Mr Rowlands filed an application to revoke or vary the consent orders.  On 12 July 2013, this application was refused by a Judge of the Environment, Resources and Development Court on the basis that, inter alia, the Environment, Resources and Development Court could only set aside or re-open 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.[2]  The Judge also found that even if he had the power to re-open proceedings, he would not exercise his discretion to do so.[3] 

   [2]    Coast Protection Board v Carramatta Holdings P/L [2013] SAERDC 37, [18]-[26].

   [3]    Coast Protection Board v Carramatta Holdings P/L [2013] SAERDC 37, [44]-[46].

6. Those findings were the subject of a successful appeal to a single Judge of the Supreme Court.  Blue J concluded that:[4]

   ... 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.

   [4]    Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [50].

7. Subsection 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 previously made under this section.

8. Blue J distinguished the decision of the High Court in Harvey v Phillips:[5]

   ... 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... 

   His Honour held that the power under subsection 85(17) of the Development Act should be exercised where it was “appropriate for the Environment Court to vary the original order.”[6]

   [5]    Harvey v Phillips (1956) 95 CLR 235; Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [52].

   [6]    Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [64] (original emphasis).

9. Rule 4(1)(d) 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:

   ...

   (d)     correct, revoke or vary any order by a subsequent order;

   ...

10. Blue J relied on the decision of the Full Court in Players Pty Ltd (in liq) (rec apptd) v Clone Pty Ltd,[7] a decision on the scope of a similar provision in the Supreme Court Civil Rules 2006 (SA).  Blue J held that:[8]

    ... 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. 

    Blue J also held that the Judge’s exercise of discretion was vitiated by holding that there was no arguable ground for varying the consent order. The matter was remitted to the Environment, Resources and Development Court to determine Carramatta and Mr Rowlands’ application to vary the consent order under subsection 85(17).

    [7]    Players Pty Ltd (in liq) (rec apptd) v Clone Pty Ltd (2013) SASR 547.

    [8]    Carramatta Holdings Pty Ltd v The Coast Protection Board [2014] SASC 24, [63].

11. The Board seeks leave to agitate three grounds of appeal, namely that Blue J:

    -erred in law in deciding that the Environment, Resources and Development Court, acting under subsection 85(17) of the Development Act, has power to revoke or vary an order made under section 85 by consent, which order was founded on a settlement agreed at conference in the Environment, Resources and Development Court, in the absence of any finding sufficient to warrant the settlement being set aside as void or voidable;

    -also erred in law in deciding that the Environment, Resources and Development Court had jurisdiction under rule 4(1)(d) of the Environment Resources and Development Court Rules to revoke or vary a court order founded on a settlement agreed at conference in the Environment, Resources and Development Court in the absence of any finding sufficient to warrant the settlement being set aside as void or voidable; and

    -in the alternative, erred in law in deciding that the affidavit material filed on behalf of Caramatta Holdings and Mr Rowlands, taken at its highest, could warrant the favourable exercise of a discretion under subsection 85(17) of the Development Act or rule 4(1)(d) of the Environment Resources and Development Court Rules.

12. In Minister for Sustainability, Environment and Conservation v Zander, this Court held:[9]

    This Court’s practice is to grant permission to appeal only if a question of general principle arises.  Usually the Court considers whether there is reason to doubt the correctness of the decision under consideration.  According to that practice, a second appeal from a single judge to the Full Court should be restricted to cases which raise a question of general principle of importance.  That principle is satisfied where the Full Court is requested to express a definitive view so that the principle has application well beyond the case under consideration.  However, ultimately, the court must act in the interests of justice.

    [Footnotes omitted.]

    [9]    Minister for Sustainability, Environment and Conservation v Zander [2013] SASCFC 129, [7].

13. The Board’s grounds of appeal all raise questions of general principle, namely the construction of statutory powers to re-open a judgment and the extent to which the exercise of those powers should be informed by common law rules.  These principles have significant implications for the Environment, Resources and Development Court and other courts and tribunals exercising powers conferred by statute.  These principles warrant consideration by the Full Court.