Land and Environment Court of New South Wales CITATION : Kindimindi Investments Pty Limited v Lane Cove Council & Anor (No. 2) [2006] NSWLEC 539 APPLICANT: Kindimindi Investments Pty Limited FIRST RESPONDENT: PARTIES : Lane Cove Council SECOND RESPONDENT: Fabcot Pty Limited ACN 002 960 983 FILE NUMBER(S) : 40405 of 2005 CORAM: Lloyd J Development Consent :- suspension of – re-grant of KEY ISSUES: Practice and Procedure: - court orders – compliance with orders – discretion to remedy or restrain breaches of planning legislation LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW) s124 Land and Environment Court Act 1979 s 23, s 25E Pt 3 Div 3 F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306; Kindimindi Investments Pty Ltd v Lane Cove Council [2005] NSWLEC 398; CASES CITED: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 268; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 399 DATES OF HEARING: 28/08/2006 DATE OF JUDGMENT: 08/28/2006 APPLICANT: I J Hemmings (barrister) SOLICITORS: Hones Lawyers FIRST RESPONDENT: LEGAL REPRESENTATIVES: A M Hudson (solicitor) SOLICITORS: Wilshire Webb SECOND RESPONDENT: J A Ayling SC SOLICITORS: Mallesons Stephen Jaques JUDGMENT: - 1 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Monday, 28 August 2006 LEC No. 40405 of 2005 KINDIMINDI INVESTMENTS PTY LIMITED V LANE COVE COUNCIL & ANOR [2006] NSWLEC 539 EX TEMPORE JUDGMENT (No. 2) 1 His Honour: On 22 December 2004, Lane Cove Council granted development consent, subject to conditions, to a development comprising a supermarket, retail space, commercial office space, residential units, an extension to the Lane Cove public library, and a car park. The applicant, Kindimindi Investments Pty Limited ("Kindimindi"), brought proceedings in this Court claiming that the development consent was void. Kindimindi raised five grounds of alleged invalidity of the consent. Cowdroy J dismissed the claim: Kindimindi Investments Pty Ltd v Lane Cove City Council [2005] NSWLEC 398. Subsequently Cowdroy J made an order that the applicant pay the second respondent's costs: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 268. 2 Kindimindi appealed. On the appeal Kinidimindi reiterated the various grounds which it had unsuccessfully raised before Cowdroy J. In a reserved judgment delivered on 21 February 2006 the Court of Appeal upheld only one ground, namely, a constructive failure by the council to properly give effect to its decision by way of an appropriate condition relating the impact of the proposed development on a nearby property, Lane Cove Public school. The council had instead entered into a deed with the applicant for consent relating to that question. (See Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277.) 3 The Court of Appeal remitted the proceedings to this Court for further consideration including as to the costs of the original hearing and any further hearing. On the further hearing of the remitted proceedings, on 9 May 2006, I made orders under Pt 3 Div 3 of the Land and Environment Court Act 1979 ("the Court Act") suspending the operation of the development consent and specifying the terms compliance with which would validate the consent: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 399. 4 The evidence demonstrates that the council has now complied with the terms specified in my orders of 9 May 2006. The respondents now seek a declaration to that effect, a declaration that the council has validly re-granted the consent with alterations, a declaration that the original consent has been revoked and the revocation of an order suspending the operation of the original consent. 5 The orders, that I made on 9 May 2006, are expressly authorised by Pt 3 Div 3 of the Court Act. Apart from these provisions the Court has a wide general discretion under s 124 of the Environmental Planning and Assessment Act 1979 (NSW) to "make any such order as it thinks fit". Moreover, under s 23 of the Court Act the Court has, in relation to matters in which it has jurisdiction, power to make orders of such kinds as the Court thinks appropriate. The width of the Court's discretion was explained by Street CJ in F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306 at 313: Likewise it is apparent that the court enjoys a wide discretionary range within which to consider the formulation of orders or to remedy or restrain breaches of the planning legislation. It by no means follows that the mere demonstration of a right that a party would be entitled to expect to have enforced by the ordinary civil courts will be afforded equivalent enforcement by the Land and Environment Court. It is the duty of that Court, in formulating "such order as it thinks fit", to have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s 5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5. … The precise manner in which the Court will frame its orders in the context of particular disputes is ultimately the discretionary province of the Court to determine in the light of all of the factors falling within the purview of the dispute. 6 I mention this because the Court's wide general discretion would appear to include the kind of orders that I made absent those specified in Pt 3 Div 3 of the Court Act. What that Part does is to command the Court to give consideration to its provisions in every case involving the invalidity of a development consent: s 25E. That is, if the facts fall within its provisions, then the Court must take those provisions into consideration in the exercise of its discretion. 7 However, absent Div 3 of Pt 3 it would have been appropriate to exercise the Court's general discretion in much the same manner and I would have done so, particularly having regard to the nature of the breach. 8 The council having now remedied the technical defect identified by the Court of Appeal, and there being nothing else about which there can be any complaint, it is appropriate that I make the declaration and orders now sought by the respondents. 9 I make the declarations set out in pars 1, 2 and 3 of the respondents' notice of motion and I make the order in par 4 of the notice of motion. I will reserve the question of costs. I hereby certify that the preceding 9 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 28 August 2006 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.