New South Wales Supreme Court CITATION : Waverley Council v Refkin Pty Ltd [2000] NSWSC 242 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1359/2000 HEARING DATE(S) : 09/03/2000 JUDGMENT DATE : 9 March 2000 PARTIES : Waverley Council (P) Refkin Pty Limited (D) JUDGMENT OF : Young J COUNSEL : M B Evans (P) V R W Gray (D) SOLICITORS : M E McMahon & Associates (P) Gye Associates Lawyers (D) CATCHWORDS : Local Government [244]- Consent validity- Low cost housing- Supreme Court normally follow Land and Environment Court on these issues. - Local Government [275]- Supreme Court- Challenge to jurisdiction- Mareva injunction application- Plaintiff objects to court considering basic issues- Proceedings dismissed. LEGISLATION CITED : Environmental Planning and Assessment Act 1979, ss 94, 101 Land and Environment Court Act 1979, s 71 CASES CITED : Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (NSWLEC 20) DECISION : Proceedings dismissed. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J THURSDAY 9 MARCH 2000 1359/00 - WAVERLEY COUNCIL V REFKIN PTY LTD JUDGMENT 1 HIS HONOUR: The plaintiff Council sues in this court for a Mareva injunction to prevent a builder selling the last unit in a development that could meet a condition in the development application that it be dedicated for low cost housing. 2 The matter came before me last week. It ran into difficulties and was adjourned until today. Today Mr M Evans for the plaintiff, submitted that this court had no jurisdiction to decide the basic issues that arise, and that I should adjourn it until those issues had been considered by the Land and Environment Court. 3 Essentially, the facts are that the defendant for whom Mr V Gray of counsel appears, obtained a development consent from the plaintiff and from the Land and Environment Court on appeal. One of the purported conditions of the consent was:- "(2) That a 1 x 1 bedroom unit is to be transferred to Council in perpetuity within two months of the Strata Plan being registered. This unit is to be managed by a local community group to provide permanent and safe housing in accordance with Council's Affordable Housing Program." 4 There was no appeal against that condition. 5 The material before the court suggests that the condition has not been complied with. There is also some material to suggest that the defendant is about to dispose of the last of the units in the block without conveying anything to the Council. 6 On 14 February 2000 the Council issued a summons out of this court, seeking by way of final relief an order that the remaining unit be transferred to it. Alternatively, the Council seeks damages under s 68 of the Supreme Court Act, that is, damages under Lord Cairns Act. It also sought wrongly, though incidentally under the heading "by way of interim relief", a Mareva injunction. 7 The matter came before me last week, and I was very much influenced by the fact that on 18 February 2000 Cowdroy J in Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (NSWLEC 20) ruled that conditions such as the one in question here were invalid. I stood the matter over so that everyone could consider their position. Counsel for both sides have made written submissions, and Mr Evans has spoken to them. Mr Gray did not need to for reasons which will become clear. 8 Mr Evans' principal statement is that this court's jurisdiction under s 71 of the Land and Environment Court Act 1979 has been curtailed so that the only court which can enforce any right, obligation or duty conferred by a planning instrument or law is the Land and Environment Court. Unfortunately, this submission is almost certainly right, but the bizarre effect of it is that these proceedings themselves are incompetent as the court has no power to give the final relief asked for by the plaintiff. 9 I must confess that I have some doubt as to whether any court has power to give that relief. It might be noted that s 94 of the Environmental Planning and Assessment Act 1979, which gives the purported power to impose conditions, provides absolutely no machinery for their enforcement. 10 This means that I do not have to face up to the other extremely awkward points that arise in this case, not the least of which are whether I should follow what Cowdroy J held. Prima facie I should, because his Honour is a judge of a superior court charged with dealing in this sort of matter and has come to a very well-reasoned and considered decision. If I took that view, then for the purpose of a Mareva injunction I would have to hold that the plaintiff did not have a sufficiently strong case. However, Mr Evans is probably right, and I do not have the jurisdiction to make a final finding that way. 11 The other real problem is s 101 of the Environmental Planning and Assessment Act 1979 which, on one reading of it prevents a challenge in any court to any conditions once three months have elapsed from the publication of the consent. 12 As far as my research has shown, there is no case which directly refers to the enforcement of invalid conditions. Some interesting analogy can be drawn with invalid income tax assessments, but again I am spared of that because of the principal question. 13 There is no jurisdiction to deal with the matter and I uphold Mr Evans' submission on that basis. Unfortunately, that means that the suit must be dismissed. Even if that were not so, I am not persuaded at this stage there is a sufficient case for a Mareva injunction in my discretion, so the result is that the proceedings are dismissed with costs. 14 This, as I have said, is a bizarre situation and it may be that when the legislature is considering the effect of Cowdroy J's judgment on social policy, it might also like to consider whether it would be more sensible to give this court some over-riding jurisdiction to deal with the inevitably hard case that otherwise will fall within the cracks due to the rather direct way s 71 is currently expressed. [Mr Gray applied for costs on the indemnity basis. Mr Evans opposed Mr Gray's application] 15 Had Mr Evans not made the submission and had Mr Gray not supported it, I would have been tempted to hear the case. As Mr Gray has submitted, the Council brought the case in this court but then, when faced with difficulty, raised technical submissions which prevented me from hearing it. Accordingly, I think costs have to be on the indemnity basis. oOo Last Modified: 09/25/2000 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.