United Super Investments Pty Ltd v Pittwater Council

[2003] NSWLEC 61

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Land and Environment Court

of New South Wales

CITATION:	United Super Investments Pty Ltd v Pittwater Council [2003] NSWLEC 61
PARTIES:	APPLICANT: United Super Investments Pty Ltd RESPONDENT: Pittwater Council
FILE NUMBER(S):	10431 of 1981
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- Correction of accidental error in consent orders modifying development consent.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 96 Land and Environment Court Rules Part 10 r 7; Part 15 r 9
CASES CITED:
DATES OF HEARING:	27/03/2002
EX TEMPORE JUDGMENT DATE :	03/27/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr B Preston SC SOLICITORS PricewaterhouseCoopers Legal RESPONDENT: Ms H Irish, Barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND

Matter No. 10431 of 1981

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

27 March 2002

UNITED SUPER INVESTMENTS PTY LIMITED

Applicant

v

PITTWATER COUNCIL

Respondent

JUDGMENT

1. This is an application under of the Environmental Planning and Assessment Act 1979 s 96 for the modification of a development consent granted by the Court on 9 March 1982, for the development of an extensive retirement village on land situated in the vicinity of Cabbage Tree Road and Julia Street, South Bayview.

2. The application comes before the Court because the Applicant has perceived a possible mistake that occurred at the time that the Court, by consent, modified the original development consent by a decision made by consent in 1986 and although that perceived mistake in the consent orders has hitherto not been noted or has not caused any concern the matter now arises all these years later no doubt because the Applicant wants to maintain the benefit of the original consent.

3. Ultimately the Council itself has agreed with the Applicant’s understanding and perception of the mistake that may have crept into the Consent Orders made by the Court in 1986 and Senior Counsel for the Applicant has taken me through the various documents. I had granted the original approval in 1982 and it was Assessor O’Neill who granted the modification in 1986 and I am satisfied, having been through the documents that an unintentional error, most probably a clerical slip, infected the 1986 decision and that the effect of the present application before the Court is simply to correct that clerical error or mistake. I mention this matter because Ms Irish, who appears for the Council today has drawn my attention to the resolution passed by the Council in recent days raising no objection to the modification as sought by the Applicant but instructing their lawyers to ensure that the Council’s concerns, and I am quoting from the resolution, “over the issues of contemporary environmental management practices be embodied within the conditions of consent are addressed by the Court in its deliberations over this matter”.

4. My determination of the application does not involve a consideration of the matters raised in the Council’s resolution for two reasons. Firstly, those matters would obviously be relevant to any application that is made in the future pursuant to s 96 in relation to parts of the approved development, namely, the self-contained units that have not yet been developed and no doubt the Council’s environmental management concerns will come to the fore if and when such an application is made. But the principal reason why I do not embark upon the matter today is that I am entirely satisfied that the application does no more than to correct a clerical slip or a mistake in the consent orders made in 1986 which did not entirely and truly reflect the common intent of the parties and hence the intention of the Court. In those circumstances, the orders having been made by consent, it is open to the parties to the consent orders to ask for those orders to be varied by consent: see the Rules of Court Part 10 r 7 and Part 15 r 9 (e) and (f). That is an alternative source of power to the power conferred by s 96 itself.

5. Being satisfied that the power resides in the Court to, in effect, correct a longstanding but important mistake in an order of the Court made in 1986 by consent it is entirely appropriate that I adopt the solution agreed between the parties and, for those reasons, by consent I make the orders set out in the short minutes which have been prepared by the parties, signed by their legal representatives which I too shall sign and place on the Court papers and direct that the two documentary Exhibits A and Exhibit 1 remain with the Court papers.