Verde Terra Pty Ltd & Ors v Central Coast Council & Anor [2023] NSWCA 121

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Verde Terra Pty Ltd & Ors v Central Coast Council & Anor [2023] NSWCA 121 Hearing dates: 1 September 2022 Decision date: 02 June 2023 Before: Ward P at [1]; White JA at [2]; Kirk JA at [49] Decision: Appeal dismissed with costs Catchwords: ENVIRONMENT AND PLANNING – Development application – Where parties settled earlier proceedings relating to breach of terms of development consent by consent orders – Where appellant now seeks to alter designated development without obtaining further development consent – Whether consent orders themselves render development "approved" – Whether consent orders merge in prior development consent so as to render development "approved" – Held that development not "approved" ENVIRONMENT AND PLANNING – Words and phrases – Approved development – Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3, Pt 2, cl 35 JUDGMENTS AND ORDERS – Classification of orders – Classification of consent orders – Judgments in rem – Judgments in personam – Whether consent orders settling proceedings as to breach of terms of development consent operate in rem for the purpose of rendering development an approved development – Held that consent orders do not give rise to judgment in rem Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.12(8), 8.8(2) Land and Environment Court Act 1979 (NSW), s 58 Environmental Planning and Assessment Regulation 2000 Cases Cited: Anastasiou v Wallace [2020] NSWLEC 14 Duchess of Kingston's Case (1776) 1 Leach 146; 168 ER 175 Goucher v Clayton (1865) 11 LT 732 PE Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority (No. 9) [2022] NSWLEC 29 Verde Terra Pty Ltd v Central Coast Council; Central Coast v Environment Protection Authority (No. 10) [2022] NSWLEC 49 Wytcherley v Andrews (1871) LR 2 P&D 327 Texts Cited: K R Handley, "Res Judicata: General Principles and Recent Developments" (1999) 18 ABR 214 K R Handley, Spencer Bower and Handley: Res Judicata (5th ed, 2019, LexisNexis) Category: Principal judgment Parties: Verde Terra Pty Ltd (First Appellant) Mangrove Mountain Landfill Pty Ltd (Second Appellant) Mangrove Properties (NSW) Pty Ltd (Third Appellant) Central Coast Council (First Respondent) Environment Protection Authority (Second Respondent) Representation: Counsel: P W Larkin SC with J Stuckey-Clarke and G Tsang (Appellants) S Free SC with M J Astill (First Respondent) Submitting appearance (Second Respondent)