Land and Environment Court of New South Wales CITATION : Detala Pty Ltd v Byron Shire Council [2000] NSWLEC 63 APPLICANT: PARTIES : Detala Pty Ltd ACN 003 504 372 RSPONDENT: Byron Shire Council FILE NUMBER(S) : 10515 of 1994 CORAM: Lloyd J KEY ISSUES: Practice & Procedure :- Court orders - whether court has power to reopen proceedings to make fresh order - power to alter date of development consent Environmental Planning & Assessment Act 1979, s 83(5), LEGISLATION CITED: Land & Environment Court Act 1979, s69, s22, 39(5), s56, s59 Land & Environment Court Rules, Part 15 rule 5, Part 10 rule 7 Bailey v Marinoff (1971) 125 CLR 529; Haig v The Minister (1994) 85 LGERA 143; CASES CITED: Emanuele v Australian Securities Commission (1997) 188 CLR 114; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; R v Lapa (1995) 80 CrimR 398; Wilcox v Richardson [1994] NSWCA 192 DATES OF HEARING: 10/02/00 DATE OF JUDGMENT: 03/31/2000 APPLICANT: T Robertson (barrister} SOLICITORS: Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT: W R Davison SC AND D R Parry (barrister) SOLICITORS: Wilshire Webb JUDGMENT: Contents Paragraph A question of time 1 The parties' submissions 8 The Court's jurisdiction to make the order 12 Discretionary considerations 22 Orders 26 _______________IN THE LAND AND Matter No: 10515 of 1994 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 31/03/00 Detala Pty Ltd (ACN 003 504 372) Applicant v Byron Shire Council Respondent JUDGMENT HIS HONOUR: A question of time 1. The applicant applies by notice of motion for an order that the Court fix the time for the commencement of a development consent granted by the Court and in which an appeal on a question of law was dismissed. 2. On 15 March 1995 Assessor T Bly in a reserved judgment allowed an appeal brought by the applicant under s 97 of the Environmental Planning & Assessment Act 1979 ("the EP&A Act") and granted development consent for a community title subdivision of land at Byron Bay. On 10 August 1995, in a reserved judgment, I dismissed an appeal on a question of law brought by the respondent against the Assessor's decision and I confirmed the orders of the Assessor in granting development consent. 3. Section 83 of the EP&A Act fixes the date from which a development consent operates. In particular, subsection (2) provides: (2) Subject to section (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97 or 98, the consent: (a) ceases to be, or does not become, effective pursuant to subsection (1), and (b) becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent. 4. The present application is made pursuant to subsection (5), which provides: (5) Despite any other provision of this section, a development consent is taken to become effective and operate from such date as may be fixed by: (a) a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the consent, or (b) the Land and Environment Court, if the validity of a consent granted by that Court is confirmed by, or the consent is granted by that Court as a result of, such a final determination made by another court that has not fixed the date. 5. It is apparent that unless the order sought is made then, pursuant to subsection (2), the consent became effective and operated from the date of the Assessor's determination, namely 15 March 1995. Moreover, unless the order now sought is made the consent lapsed five years after the date from which it became effective, namely on 15 March 2000 (s 95). 6. No application was made to me at the hearing of the appeal from the Assessor's decision to fix the time from which the development consent is to operate and become effective. 7. Mr W R Davison SC who (with Mr D R Parry) appears for the applicant submits that the Court has both the power to now grant the relief sought and it should, in the exercise of its discretion, grant the relief. Mr T F Robertson, who appears for the respondent, submits that the Court has no power to grant the relief sought by the applicant and further submits that the Court would not in any event in its discretion make the order sought. The parties' submissions 8. Mr Davison submits that s 83(5) does not expressly or by implication provide that the Court may exercise the power conferred only at the time when it determines an appeal on a question of law; and to so construe the legislation would be contrary to its evidence beneficial purpose. Mr Davison submits that although the Court has a discretion under s 83(5) there should be a presumption in the exercise of that discretion in favour of the fixing of the date from which a consent should operate as the date of determination of the appeal, such presumption flowing from the fact that it is the appeal on the question of law which had the practical effect of delaying action necessary to enable the work to commence and prevent the consent from lapsing. Mr Davison further submits that the scheme of the Act contemplates that the time will run, generally speaking, from the date when there is a final determination of any appeal and the Court has not finally determined an appeal until the time for appeal from that decision has expired, so that there is a residual discretion which may be exercised after the Court's determination of the appeal on a question of law. Mr Davison drew a comparison with the Court's power to make orders for costs under s 69 of the Land & Environment Court Act 1979 ("the Court Act"), which does not require the question of costs to be determined before the entry of orders. Finally, Mr Davison submits that if the Court determines that the application ought to have been made during the appeal, the failure to do so was procedural in nature and the Court would make an order nunc pro tunc to cure the procedural irregularity. 9. Mr Robertson submits that a development consent is a valuable property right which runs with the land and that at the heart of a provision such as s 83 is the notion of certainty in relation to such property right. The fixing of time, therefore, affects the value of the property right created by a development consent, the security afforded by the consent, the value of other property surrounding the land the subject of the consent, the rights and liabilities of persons using or working the land which is the subject of the consent, the powers and duties of the consent authority as regulator and the rights of third parties to restrain works or land uses. The consent is notified on a public register (s 104 EP&A Act), is protected from collateral challenge three months after its grant has been advertised (s 104A EP&A Act) and is therefore held out to the public as an interest with a lapsing from the outset of its life. In Mr Robertson's submission each of these contextual considerations support a construction that s 83(5)(a) must be implemented when the Court determines the appeal referred to in that provision, otherwise one of the important policies of the scheme, namely certainty and security of property entitlement, would be frustrated, with unpredictable consequences and third parties relying on the lapsing period will be misled. Mr Robertson submits that the reference in s 83(5)(a) to the court that finally determines the appeal restricts the exercise of power under paragraph (a) to that court as part and parcel of the appeal. Moreover, the principle of finality in the operation of a development consent, which when granted is irrevocable and beyond recall, suggests that Parliament could not have intended the Court to exercise the power to fix a different time for the operation of a consent at any time after the final determination of the appeal process. 10 . Mr Robertson next submits that the entry of judgment is an act performed by a court to perfect its decision and make it binding, enforceable and, subject to statutory provisions to the contrary, beyond recall. This Court has no power to permit the reopening of a case after judgment has been given and perfected, absent fraud, a breach of the rules of natural justice or the failure of an order to reflect the intention of the Court. The common law supports finality of litigation. In the case of the Land & Environment Court there are special considerations: s 22 of the Court Act requires the Court to grant all remedies to which any of the parties appear to be entitled so that all matters in controversy may be completely and finally determined; s 39(5) of the Court Act deems the decision of the Court upon an appeal to be the final decision of the Council; and s 56 of the Court Act provides that one of the incidents of the exercise of jurisdiction by the Court is that a decision of the Court "shall be final and conclusive". Section 59(2) of the Court Act empowers the Court on an appeal to suspend the operation of any relevant order until the Court makes its decision, which is a provision that may in itself authorise the Court on an appeal to extend the time at which a consent becomes effective and is an alternative to the power under s 83(5)(a) of the EP&A Act, but such power is exercised in the course of an appeal. Mr Robertson accepts that the provision which makes a decision final and conclusive does not restrict judicial review, although it does indicate the time at which a decision maker becomes functus officio . Mr Robertson further submits that reopening would not be permitted in any event where the point was open to be taken but no such point was put. 11. Finally, Mr Robertson submits that the power of the Court to make an order nunc pro tunc , once thought to be inherent, is now governed by Pt 15 r5 of the Land & Environment Court Rules: " A final order disposing of any proceedings takes effect when it is given or made unless otherwise ordered by the Court ". In this case a final order having been made disposing of the proceedings cannot now be revisited without recourse to the slip rule or some other power as contained in Pt 15 r9. The slip rule itself is confined to circumstances where the proposed amendment is one upon which no real difference of opinion can exist. In its origin, an order nunc pro tunc was broader than its current application and served, at least in equity, to provide a slip rule before it was codified by rules of Court. Even if an inherent power to make an order nunc pro tunc persists, the power has never been exercised contrary to the rule in Bailey v Marinoff (1971) 125 CLR 529. In cases where the power has been exercised by the courts, it has been in relation to procedural requirements rather than to the jurisdiction of the Court. In Mr Robertson's submission, none of the authorities support the use of either the slip rule or an order nunc pro tunc to reopen a proceeding to make a fresh order which could have been sought when the matter was still alive, in relation to which the Court exercises an independent discretion, where the omission to ask for the order has been left unexplained and therefore cannot be counted as a slip and where there is an absence of exceptional circumstances. The Court's jurisdiction to make the order 12. I have referred above to the contextual considerations which, Mr Robertson submits, leads to a conclusion that the fixing of a different time for the operation of a development consent must be made by the Court when it determines the appeal referred to in s 83(5)(a). It seems to me, however, that there are contextual indications to the contrary, not referred to by either party, within s 83(5) itself. 13. I have set out (in paragraph 4 above) the terms of s 83(5). The argument tended to focus on s 83(5)(a). The whole subsection, however, may be considered for the purpose of construing it. Paragraph (b) of the subsection provides that this Court may fix the date from which a development consent is to operate if a final determination made by another court that has not fixed that date. For example, the final determination may be made by the Court of Appeal (or the High Court), which Court in its determination might not have fixed that date. Paragraph (b) would then allow this Court, after a final determination made by the Court of Appeal (or the High Court) to fix the relevant date. It seems to me that the fixing of the relevant date in this way would not amount to revisiting the final determination or final orders, which would remain extant. The fixing of the date in such circumstances is a further or subsequent order consequential upon the final determination. An order fixing the time under paragraph (a) would have the same effect. 14. Moreover, it seems to me that the making of a further or subsequent order consequential upon the final determination would not infringe the rule in Bailey v Marinoff . In that case Barwick CJ said (at 530): Once an order disposing of a proceeding has been perfected by being drawn up as a record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. (The emphasis is mine.) 15. In Haig v The Minister (1994) 85 LGERA 143, Kirby P expressed the view that the Court of Appeal has an inherent jurisdiction to set aside a previously perfected order. The power to do so was assumed, not confirmed, by the other members of the Court. In Wilcox v Richardson [1994] NSWCA 192, however, the Court of Appeal followed Bailey v Marinoff and held that it " has no power to set aside and reopen a judgment already given and entered and there is no basis upon which that court could properly interfere with a judgment so entered ". Meagher JA (with whom Handley and Powell JJA agreed) said: 5. It is perfectly true the decision in this Court of Haig v The Minister (1994) 85 LGERA in which the matter was dealt with by Kirby J, Kirby J expressed the view that there was jurisdiction in this Court to reopen a perfected judgment but only in exceptional circumstances. 6. The authorities on which his Honour relied in my view do not substantiate the conclusion which he reached. The other members of the court did not agree with his views and in any event, they are in sharp contrast to the views of the High Court . 16. Since the Court has no inherent jurisdiction to re-open a perfected judgment, the question then is whether s 83(5) is a statutory provision entitling it to do so. It appears to me that s 83(5) is a specific and relevant statutory provision which enables the Court to fix the date upon which a development consent is taken to become effective and operate after and consequential upon the final determination. 17. Apart from s 83(5) being a specific and relevant statutory provision and thus an exception to the rule that a judgment is beyond recall, it seems to me that the fixing of a date from which a development consent is taken to become effective and operate does not amount to a setting aside or reopening of the final determination. The matter is not being relitigated. The subsection seems to be a form of statutory liberty to apply. As with the reservation of liberty to apply, it does not extend to the variation or amendment of the judgment or orders, but enables the making of a further order which is consequential to the original order and relating to its implementation or carrying into effect. Mr Davison's comparison with the making of an application for costs under s 69 of the Court Act after the delivery and entry of a judgment appears to be a valid analogy. (Section 69 of the Court Act may be contrasted with s 52(1) of that Act, which relates to orders for costs in the Court's summary criminal jurisdiction, which provides that a costs order must be made " in and by the conviction or order ".) In this case, the fixing of the date under s 83(5) does not infringe the principle that a judgment or determination of the Court is " final and conclusive ". The determination remains the same. 18. In R v Lapa (1995) 80 A Crim R 398, Clarke JA, speaking for the Court of Criminal Appeal, accepted the existence of the common law rule, as explained in Bailey v Marinoff , that once a judgment has been perfected a court has no power, subject to any relevant rules, to alter its judgment in a substantial respect (at 402). Clarke JA nevertheless accepted that there may be possible exceptions concerning subsidiary matters. It seems to me that an order under s 83(5) is clearly a subsidiary matter. 19. I am thus inclined to the view that the Court has jurisdiction under s 83(5) to now make the order sought. This conclusion means that it is not necessary to resolve the question of whether the Court can exercise its power under s 83(5) nunc pro tunc . There is, however, much force in Mr Robertson's submission, supported by the authorities to which he has referred, that orders will only be made by a court nunc pro tunc to cure procedural defects or irregularities. The High Court case of Emanuele v Australian Securities Commission (1997) 188 CLR 114, relied upon by Mr Davison, is itself such a case. In that case there was a failure to seek or obtain prior leave of the Court to wind up companies in insolvency, as required by s 459P(2) of the Corporations Law. The Court held that a failure to obtain leave was a mere procedural slip which could be cured by an order nunc pro tunc . 20. Mr Robertson has drawn the Court's attention to many authorities in which an order was made nunc pro tunc , but only in relation to procedural defects or irregularities. Mr Davison has not referred to any authority in which a nunc pro tunc order has been applied to requirements of a different character. I am not persuaded that an order under s 83(5) would be merely procedural. 21. I should note that Mr Davison does not rely upon the slip rule or its statutory equivalent (Land & Environment Court Rules, Pt 10 r7; cf L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590). Discretionary considerations 22. As noted above, the decision of the Assessor was made on 15 March 1995. The appeal on the question of law was determined on 10 August 1995. As Mr Robertson pointed out in his submissions, however, the applicant took advantage of the time between the Assessor's decision and the appeal on the question of law to implement the consent. That is to say, the applicant proceeded upon the assumption that the Assessor's decision was valid. This is consistent with the principle that the making of an appeal does not operate as a stay of the original decision. In this case the applicant took steps which it would have taken in the absence of an appeal. In particular, it entered into negotiations with the Department of Conservation & Land Management (as it was then called) relating to works which were required to be done on adjacent Crown land, which works were a condition precedent to the carrying out of development on the applicant's land. It did so on the assumption that the consent granted by the Assessor is upheld. I accept Mr Robertson's submission that the effect of fixing the operative date of the consent from the determination of the appeal in this case is to make a five years' and five months' lapsing period for the consent. 23. There are other considerations which also lead to the view that the present application should not be granted. The first is the delay in making this application for the order now sought by the applicant. The second is that in the five years since the Assessor's decision there may well have been changes to the physical and non-physical environment and which may require different considerations to those which applied when the development consent was approved in March 1995. It would seem more appropriate for the applicant to make a fresh development application which can be considered in the light of present conditions and the present day circumstances. 24. I am not persuaded that there should be a presumption in the exercise of the Court's discretion under s 83(5) in favour of fixing the date from which a consent should operate as the date of determination of the appeal. If it were the intention of the legislature to provide that the relevant date should operate from the date of determination of the appeal, then it could have readily so provided. In s 83(5) however, it seems that the legislature thought that no such presumption should operate and made it a requirement that the Court should exercise an independent discretion in each such case. This would in turn require the Court to consider the circumstances in each case before making any such order. 25. For the abovementioned reasons, in the exercise of the Court's discretion I am not persuaded to grant the applicant's claim for relief. Orders 1. The applicant's notice of motion dated 16 December 1999 is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.