The Coast Protection Board v Carramatta Holdings Pty Ltd

The Coast Protection Board appealed to the Supreme Court of South Australia against an order of a single judge of that court. The single judge had allowed an appeal from the Environment, Resources and Development Court (ERD Court). The original proceedings in the ERD Court concerned development works undertaken by Carramatta Holdings Pty Ltd on land at Bosanquet Bay, near Ceduna. These works, which involved clearing and levelling sand dunes, were alleged by the Coast Protection Board to have been undertaken without necessary approvals and in breach of the Native Vegetation Act 1991 (SA). The dispute ultimately led to a consent order being made in the ERD Court. Carramatta later sought to have this consent order revoked or varied.

The central legal issue before the Supreme Court was whether the ERD Court retained jurisdiction to revoke or vary a consent order made pursuant to an agreed compromise of an enforcement action, notwithstanding a binding agreement between the parties that led to that order. This involved considering the applicability of the High Court's decision in *Harvey v Phillips* and the scope of the ERD Court's powers under section 85(17) of the Development Act 1993 (SA), which allows the court to act on its own motion.

The Supreme Court, comprising Kourakis CJ, Gray and Stanley JJ, allowed the appeal, albeit for reasons that differed from the single judge. While acknowledging the prima facie application of the principle in *Harvey v Phillips*, the Court found that the specific facts and circumstances of the matter, including the broad remedial purposes of the Development Act and the express power of the ERD Court to act on its own motion, permitted the Court to entertain Carramatta's application to revoke or vary the consent order. The Court concluded that the plain words of section 85(17) should not be read down to deny the ERD Court this power, even in the context of a consent order arising from an agreed compromise.

The Court dismissed the appeal, meaning that the matter was remitted back to the ERD Court for a rehearing of Carramatta's application to revoke or vary the consent order.