TLB Trading Pty Ltd v Mosman Municipal Council (No 2) [2020] NSWLEC 1591

Land and Environment Court New South Wales

Medium Neutral Citation: TLB Trading Pty Ltd v Mosman Municipal Council (No 2) [2020] NSWLEC 1591 Hearing dates: 24 November 2020 Date of orders: 30 November 2020 Decision date: 30 November 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders below at [9] Catchwords: PROCEDURE – Notice of Motion – Uniform Civil Procedure Rules – Rule 36.17– orders Legislation Cited: Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan 2012 Uniform Civil Procedure Rules 2005 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 TLB Trading Pty Ltd v Mosman Municipal Council [2019] NSWLEC 1019 TLB Trading Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1420 Category: Procedural and other rulings Parties: TLB Trading Pty Ltd (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent)

Solicitors: Swaab Attorneys (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2020/94213 Publication restriction: No

Judgment 1. COMMISSIONER: By Notice of Motion (Motion) filed on 23 October 2020 and heard on 24 November 2020 the Applicant seeks that an amendment be made, pursuant to r 37.16 of the Uniform Civil Procedure Rules 2005 (UCPR), with respect to my judgment in the substantive proceedings: TLB Trading Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1420 (the Judgment). The amendment is consented to by the Respondent. 2. The amendment sought is that at [8(3)] of the Judgment be deleted for reasons described in the affidavit of Emma Jane Fleming annexed to the Motion as follows: "… to correct an error arising from an accidental slip or omission in the orders of the Court in these proceedings pursuant to Rule 36.17 of the Civil Procedure Rules 2005 (referred to as the "Slip rule Application")." 1. No objection was raised by the Respondent to the affidavit sworn by Ms Fleming nor to the application made by the Applicant. 2. The Judgment had included a statement that "the proposed development, as modified, would remain compliant with the height of buildings and floor space ratio (FSR) controls in cll 4.3, 4.3A and 4.4 of Mosman Local Environmental Plan 2012" (MELP). 3. However, the Applicant has confirmed within the affidavit of Ms Fleming that: 1. Development Application No. 8.2017.232.2, which was approved by the Court on 18 January 2019 (being TLB Trading Pty Ltd v Mosman Municipal Council [2019] NSWLEC 1019), approved a breach of the building height standards in cll 4.3 and 4.3A of MLEP pursuant to cl 4.6. Those height breaches were reduced but not eliminated by the subject Modification Application; 2. the plans that were the subject of the Modification Application show a FSR exceedance; and 3. compliance with the height of building and FSR development standards under MLEP is not a jurisdictional prerequisite for a modification application under s 4.55 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as a modification of a development consent in accordance with s 4.55 is taken not to be the granting of development consent under Part 4 of the EP&A Act. 1. The Parties submit that the Court has power under rule 36.17 of the UCPR to give effect to its proposed amendment of the Judgment because, as submitted by the Applicant: 1. it is appropriate in this case that the Court exercise the power available to it under r 36.17 to correct the error in at [8(3)] of the Judgment though its deletion of that paragraph, in order to carry into effect the intent of the Commissioner; 2. the amendment sought is consistent with the decision of the Court of Appeal in Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195; 3. the amendment sought is consistent with, and distinguished from, the decision of Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [266] as the requested amendment does not seek to alter the land to which consent was granted in the judgment. 1. Having reviewed the material that was annexed to the Applicant's Notice of Motion, and having considered the grounds on which the Parties rely in seeking to amend the Judgment, I am satisfied that the order sought by the Applicant can be made under rule 36.17 of the UCPR for the reasons relied on by the Parties above at [6]. 2. Further, I am satisfied that while the error of fact included in the Judgment at [8(3)] presented no jurisdictional hurdle to the making of the orders in the Judgment, it is appropriate for the correction sought to be made to reflect the facts in the case.