Land and Environment Court of New South Wales CITATION : Bales Investments Pty Ltd v Cessnock City Council (No 2) [2009] NSWLEC 1187 APPLICANT Bales Investments Pty Ltd PARTIES : RESPONDENT Cessnock City Council FILE NUMBER(S) : 11080 of 2008 CORAM: Bly C KEY ISSUES: :- NOTICE OF MOTION; amendment of condition of consent LEGISLATION CITED: Uniform Civil Procedure Rules 2005 Bales Investment Proprietary Limited and others v Cessnock City Council [2009] NSWLEC 1102 Dayho v Rockdale City Council [2004] NSWLEC 184 CASES CITED: Newmont Yandall Operations Proprietary Limited v Aron Corporation Goldman Sachs Group Incorporated [2007] 17 NSWLR 411 Autodesk Incorporated and others v Dyason and others [No 2] 1992-1993 176CLR Wentworth v Rogers [No 9] 1987 8 NSWLR 388 DATES OF HEARING: 1 May 2009 EX TEMPORE JUDGMENT DATE : 1 May 2009 APPLICANT C R Ireland (barrister) SOLICITOR O'Sullivan Saddington LEGAL REPRESENTATIVES: RESPONDENT T G Howard (barrister) SOLICITOR Mallick Rees JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 1 MAY 2009 08/11080 BALES INVESTMENTS PTY LTD AND ANOR v CESSNOCK CITY COUNCIL This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 COMMISSIONER: On 8 April 2009 I handed down judgment in the matter of Bales Investment Proprietary Ltd and others v Cessnock City Council [2009] NSWLEC 1102. In that judgment I ordered that the appeal be upheld and the conditions of consent for the Wentworth Hotel be variously modified. 2 The respondent council in those proceedings filed on 14 April 2009 a Notice of Motion seeking the variation of Order No 2(2), particularly in relation to Condition 3 as referred to in the orders. 3 Modified Condition 3 provides that- "The development shall be undertaken strictly in accordance with the details set out in the application form including the modified 2008 security management plan and accompanying documents dated 31 July 2008 as modified by these conditions and: (a) compliance audits shall be carried out at random at the applicant's cost by a firm retained by the applicant (whose appointment is approved by council) but not more than quarterly unless none compliance is found by the council in which case more frequent auditing may be required. The audits must include covert surveillance of the hotel to ascertain whether there is compliance with this consent. (b) a copy of the audit results shall be provided by the counsel to the licensee of the hotel." 4 The Notice of Motion seeks changes to this condition so that it more correctly responds to what I said in my judgment at para 41. Para 41 is as follows- "In Dayho v Rockdale City Council [2004] NSWLEC 184, Roseth SC, said that 'where conditions of consent relate to the operation of a use and it is proposed to monitor compliance with those conditions it is preferable for the council to appoint the persons responsible for the monitoring and to choose the time at which the monitoring is to be carried out'. I agree with the council that a condition to this effect should be imposed. Whilst this applicant's behaviour in complying with conditions of consent has not been perfect I accept that compliance is more likely to be achieved taking into account this condition." 5 More particularly it was submitted on behalf of the applicant for the Notice of Motion that Condition 3 should be either replaced in full by a suggested alternative or modified so as to correctly achieve the following: o the appointment by the council of persons responsible for monitoring compliance with conditions of consent and, o the choosing by the council of the time at which the monitoring is to be carried out. 6 It was further submitted that these changes can be made pursuant to Rules 36.16 and 36.17 of the Uniform Civil Procedure Rules 2005. In this regard I was referred to Head Note (5) of the decision in Newmont Yandall Operations Proprietary Limited v Aron Corporation Goldman Sachs Group Incorporated [2007] 17 NSWLR 411: "A Court's order which has consequences which were not intended by the judge making that order as objectively determined can constitute an 'error' within the meaning of the slip rule." 7 On behalf of the respondent to the Notice of Motion it was submitted that UCPR rules 36.16 and 36.17 provide an exceptional power that is not available in this instance. The utilisation of this power would be an error of principle because the changes sought by the council would be substantial and would deviate from the reasons for judgment. In support of this position I was referred to Autodesk Incorporated and others v Dyason and others [No 2] 1992-1993 176CLR, a decision of the High Court and Wentworth v Rogers [No 9] 1987 8 NSWLR 388. 8 Having considered these matters and the respondent's submissions I believe the approach contended by the applicant to be correct relying on Newmont Yandall Goldman Sachs and see no legal impediment to my dealing with the Notice of Motion. I am satisfied that I have power to amend the orders in accordance with the UCPR rules. More particularly I agree that I can, taking an objective approach and utilising rule 36.17, correct an error that arises from an accidental slip or omission in my judgment that is manifested by an inconsistency between the reasons for decision and the orders themselves. 9 On behalf of the respondent it was further submitted that the conditions in the Orders properly reflect the reasons for decision, taking into account not only para 41, but also para 44 and the reasons as a whole. 10 Paragraph 44 effectively provides a link between para 41 and the Orders themselves and is as follows: "I have reviewed the conditions sought to be imposed by the respondent should I uphold the appeal but I have decided that the applicants conditions essentially comprise an appropriate response to the conclusions that I have reached. I have nevertheless, taking into account the evidence, decided that a number of changes are required including a trial period". 11 In para 44 I state that the conditions proposed on behalf of the hotel "essentially" comprise an appropriate response to the conclusions that I reached. By using the word "essentially" this does not mean that those conditions are accepted in their entirety. What it must mean is that there will be some variation to the conditions so that they will be consistent with the conclusions reached within the reasons for judgment. 12 As for the first suggested modification I do not accept that any change to condition 3(a) is necessary. By requiring that the council approve the appointment of a compliance auditor this is, in my opinion, an equivalent response to the finding in para 41 that the council appoints the persons responsible for the monitoring. Hence no change is warranted. 13 As for the second suggested modification I agree that a change to condition 3(a) is necessary because the condition makes no reference at all to the choosing of the time at which the monitoring is to be carried out. 14 The respondent submits that this is effectively achieved by the requirement in the condition that the compliance audits be carried out at random. The applicant submits to the contrary. In my opinion the requirement that the audits be carried out at random is not the same as or even similar to a requirement that the council have the responsibility for choosing the time of the monitoring. For a random choice to be made someone has to make the decision and para 41 makes it plain that this should be the task of the council. 15 I have therefore decided that utilising rule 36.17 of the UCPR rules, Order 2(2) in the judgment dated 8 April 2009 is amended by inserting in condition 3(a) immediately after the words, "carried out at random" the words "at times of the council's choosing and". ___________________ T Bly Commissioner of the Court ajl 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.