Land and Environment Court of New South Wales CITATION : Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 1295 APPLICANT Cavasinni Constructions Pty Ltd PARTIES : RESPONDENT Fairfield City Council FILE NUMBER(S) : 10218 of 2009 CORAM: Pearson C KEY ISSUES: DEVELOPMENT MODIFICATION :- Conditions Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: Uniform Civil Procedure Rules 2005 Land and Environment Court Rules 1996 Land and Environment Court Rules 2007 Cavasinni Constructions Pty Ltd v Fairfield City Council [2009] NSWLEC 1320 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 CASES CITED: Starray Pty Ltd v Council of the City of Sydney [2001] NSWLEC 38 Multistar Pty Ltd v Minister of Urban Affairs and Planning [2000] NSWLEC 242 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 De L v Director General New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 TEXTS CITED: Ritchie's Uniform Civil Procedure Practice DATES OF HEARING: 1 October 2010 EX TEMPORE JUDGMENT DATE : 1 October 2010 APPLICANT Mr D Leung, solicitor LEGAL REPRESENTATIVES: Antunes RESPONDENT Mr AJJ Thompson, solicitor Ritchie & Castellan JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner Pearson 1 October 2010 10218 of 2009 Cavasinni Constructions Pty Ltd v Fairfield City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 Commissioner: These proceedings are an appeal under s96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Fairfield City Council (the Council) of an application made pursuant to s 96 of the Act to modify a development consent granted to Cavasinni Constructions Pty Ltd on 22 October 2007 in relation to extension of an existing restaurant located a lot 2 DP 215528, 685-687 The Horsley Drive, Smithfield. 2 The modification application related to certain of the conditions imposed by the Council on the development consent. During the course of the proceedings the parties reached agreement on the terms of a number of the conditions. There were, however, a number of conditions that remained in dispute, one of which was condition 3, which relates to a strip of land at the rear of the existing restaurant. The location of the site and that strip of land are described at paragraphs [4] and [5] of my earlier decision in these proceedings: Cavasinni Constructions Pty Ltd v Fairfield City Council [2009] NSWLEC 1320. 3 Condition 3(a) required the applicant to create and register an easement relating to a right of carriageway being 7.315 metres on that part of the site between the proposed restaurant extension and the car parking area at the rear of the property in favour of three lots to the east of the site. In the earlier reasons I concluded that condition 3(a) should not be deleted as sought by the applicant, and the orders made on 1 October 2009 included the retention of condition 3(a) with a minor amendment. 4 The applicant appealed under s 56A of the Land and Environment Court Act 1979 (the Court Act) and the appeal was heard and determined by his Honour Justice Craig, in a judgment delivered on 30 April 2010: Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65. His Honour allowed the appeal, and the relevant parts of the orders were: 2. Set aside so much of the judgment as determined that condition 3(a) of the development consent granted by the respondent to the applicant would not be deleted; 3. Remit the Class 1 appeal made to this Court pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979, so far as it seeks the deletion of condition 3(a), for determination by the commissioner in accordance with this judgment; 5 Since the determination of the s 56A appeal the Council has taken steps to compulsorily acquire the strip of land which is the subject of condition 3. The applicant has provided evidence that the Council now owns the subject land, which is now identified as lot 10 DP 1145572. The land is still subject to an easement for right of access for the benefit of the adjoining properties. 6 It is common ground between the parties that since the compulsory acquisition of the strip of land, condition 3(a), requiring the applicant to create and register an easement allowing for access to the adjoining properties, is no longer capable of being complied with by the applicant, and that condition 3(a) has no work to do as the access is already provided under the terms of the acquisition. The parties have agreed that in those circumstances it is appropriate to delete condition 3(a), and I am satisfied that it is appropriate to make such an order, by consent, on the remittal of the proceedings. 7 During the determination of the remitted proceedings a second issue has arisen, relating to condition 3(b). Condition 3(b) required the applicant to create and register an easement to drain water 2 metres wide within the proposed right of carriageway referred to in condition 3(a). The orders made on 1 October 2009 included the following amendment to condition 3(b): Condition 3b is deleted and replaced with the following: b. An easement to drain water 2 metres wide in terms of Part 3 of Schedule 4A of the Conveyancing Act 1919, created pursuant to ss 88A and 88B of the Conveyancing Act 1919, over that part of Lot 2 Deposited Plan 215528 as shown in the Survey Plan Titled Fairfield City Council Reference 26700.1 dated 19-10-07 prepared by Jim Pelosa annexed hereto and marked "Annexure A " in favour of Council but not over that part marked in red. 8 The remittal of the proceedings as a consequence of the s56A appeal was limited to condition 3(a). The applicant has today filed a notice of motion seeking to vary the orders made on 1 October 2009 by deletion of condition 3(b). The Council agreed to dispense with time for service, and the notice of motion was heard this morning. The Council opposed the application to vary the orders other than so far as they concern condition 3(a) which was the subject of the remittal. 9 The applicant is relying on r 36.16(1) of the Uniform Civil Procedure Rules 2005 which provides: The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. 10 The judgment or the order of the Court in the earlier proceedings has not yet been entered. 11 The applicant relies in support of its notice of motion on a number of propositions. The applicant submits that there is power under r 36.16(1) to vary the judgment or order by the deletion of the condition. The applicant relies on s 22 of the Court Act which directs the Court: In every matter before the court to grant either absolutely or in such terms and conditions as the court thinks fit or remedies to which any of the parties appear to be entitled in respect of a claim properly brought forward. So that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 12 The applicant submits that condition 3(b) is, for the same reasons as apply to condition 3(a), no longer a condition with which the applicant can comply as it is no longer the owner of the land. The applicant also submits that while the condition remains a condition of the consent, a failure by the applicant to comply with it would be a breach of the Act, and that this may have consequences for the applicant in obtaining the final certification for its development. The applicant submits that what is being requested in this application is not a rehearing of the matters in dispute and not a revisiting of the merits of the application. 13 The Council agrees that r 36.16(1) would confer power on the Court to set aside or vary the judgment or order made in the earlier proceedings, however, submits that the exercise of this power needs to be in the context of exceptional circumstances. The Council points to the principle of the finality of litigation being a significant factor and submits that the effect of the compulsory acquisition by the Council of this strip of land is simply to render the condition void. The Council also points to there being an alternative pathway for the applicant to achieve the deletion of this condition, namely through an application made to the Council under s 96(1) of the Act to further modify the conditions of the consent. 14 In considering whether to accede to the applicant's request to vary the earlier orders by the deletion of condition 3(b), there are a number of relevant factors for me to consider. The first is whether the power is available. I am satisfied, having heard the submissions of the parties, that there is power under r 36.16(1) to vary the order as requested by the applicant. 15 The second issue is whether that is one of the functions of the Court that is exercisable by me as a Commissioner of the Court. I am satisfied that the exercise of this function is within the scope of the delegation of powers by the Chief Judge under s 36(2) of the Court Act, and that it is not a function excluded by that Act or by the Rules of the Court, in particular r 3.10 of the Land and Environment Court Rules 2007. 16 The issue before me, therefore, is whether or not the power should be exercised in these circumstances. In his submissions Mr Leung for the applicant relied upon the authorities cited at paragraph 36.16.50 in the commentary to Ritchie's Uniform Civil Procedure Practice. Mr Leung has provided a copy of a decision of Bignold J in Starray Pty Ltd v Council of the City of Sydney [2001] NSWLEC 38. The applicant relies upon this decision to confirm that there is power in the Court to vary the order as requested, noting that the particular provision considered by Bignold J was the former provision in Pt 15 r 9(b) of the Land and Environment Court Rules 1996, a provision which is in similar terms to r 36.16(1) of the Uniform Civil Procedure Rules 2005. Those proceedings involved an application to reopen proceedings determined by the Senior Commissioner granting development consent subject to conditions. The particular issue on which the applicant in those proceedings sought to reopen was based on the validity of a provision of the relevant development control plan, in light of the decision of Lloyd J in Multistar Pty Ltd v Minister of Urban Affairs and Planning [2000] NSWLEC 242 in which his Honour expressed the view that Part 5.2 of the applicable development control plan was beyond power and void. The applicant in those proceedings sought to argue that the conditions imposed on the development consent ought to be different in light of his Honour's conclusion. Bignold J refused the application, in part on the basis that the obiter dictum in Multistar did not provide a basis for the re-opening. This decision is not on all fours with the issue raised in these proceedings. 17 In considering whether to grant the application, I note that while there may be power to vary a judgment that has not yet been entered, there is a significant limitation imposed by the public interest in the finality of litigation. The High Court in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 expressed the opinion that the public interest requires great caution in the exercise of this power. The authorities to which the applicant's representative referred primarily relate to circumstances where after orders are made it subsequently emerges that there was a matter either of fact or law that could and probably should have been taken into consideration in the proceedings in respect of which the application is made: for example, where there has been a subsequent overruling of material authorities, or where the earlier decision has been based on a misapprehension of relevant facts. The circumstances in this case are that the compulsory acquisition by the Council of the strip of land the subject of condition 3 is a change in the facts that occurred after I made orders on 1 October 2009. It does not relate to a factual matter that was overlooked or otherwise not considered at the earlier time. 18 I agree with the applicant that there is a similarity between conditions 3(a) and 3(b) in that neither condition is now one with which the applicant can comply since the Council compulsorily acquired the land. However, I am not persuaded that the discretion conferred by r 36.16(1) ought to be exercised in this instance. The applicant has available to it an alternative process of applying under s 96(1) of the Act for the deletion of condition 3(b) and I accept, based on the submissions put to me by the Council's representative this morning, that it is unlikely that the Council would oppose such an application. It is equally unlikely, in my view, that anyone would contemplate proceedings to enforce a condition of the consent which because of a change in circumstances is simply incapable of being complied with. 19 In my view, having regard to the degree of caution expressed by the High Court in the decisions of Autodesk Inc v Dyason and De L v Director General of Community Services (No 2) (1997) 190 CLR 207, I am not persuaded, even accepting that I have power to make the variation sought by the applicant, that it is appropriate to exercise the discretion to do so here, and accordingly I dismiss the applicant's notice of motion. 20 The parties are to provide by Tuesday 5 October 2010 agreed amendments to Annexure A to the orders of 1 October 2009 to reflect the deletion of condition 3(a) of the development consent, and final orders will be made in chambers. Linda Pearson Commissioner of the Court 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.