Verde Terra Pty Ltd v Central Coast Council

Verde Terra Pty Ltd (the appellant) and Central Coast Council (the respondent) were parties to proceedings concerning a development application. The dispute arose after the parties had settled earlier proceedings relating to a breach of the terms of a development consent through consent orders. The appellant sought to alter the designated development without obtaining a further development consent, contending that the consent orders themselves rendered the development "approved" and that these orders merged with the prior development consent. The matter was heard by the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the consent orders, which settled earlier proceedings concerning a breach of a development consent, operated to render the development "approved" for the purposes of the *Environmental Planning and Assessment Regulation 2000* (NSW), and whether these consent orders merged with the prior development consent in a way that achieved this outcome. The Court was required to consider the nature of consent orders and whether they could give rise to a judgment *in rem* for the purpose of classifying the development as "approved".

The Court of Appeal held that the development was not "approved" by virtue of the consent orders. The Court reasoned that consent orders, in this context, were *in personam* orders, binding the parties to the agreement reached to resolve the dispute. They did not operate *in rem* to alter the fundamental status of the development consent itself or to deem the development "approved" in the sense contemplated by the legislation. The Court found that the consent orders did not merge with the prior development consent in a manner that would render the development approved, and therefore, the appellant was still required to obtain a further development consent for the proposed alterations.

The appeal was dismissed with costs.