Land and Environment Court New South Wales Medium Neutral Citation: Australian International Academy of Education Inc v The Hills Shire Council [2011] NSWLEC 208 Hearing dates: 14 November 2011 Decision date: 17 November 2011 Jurisdiction: Class 1 Before: Biscoe J Decision: The Court declines to impose a condition on leave to discontinue appeal against deemed refusal of development application, that the Applicant not challenge the validity of a condition of intervening development consent. Order as to costs. Catchwords: PRACTICE AND PROCEDURE: - nature of discretion to grant leave to discontinue Class 1 appeal against deemed refusal of development application where consent authority then grants development consent - whether condition depriving Applicant opportunity to challenge the validity of conditions of intervening development consent should be attached to the leave. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 82, 97 Uniform Civil Procedure Act 2005 r 12.1 Cases Cited: Fox v Star Newspaper Company [1898] 1 QB 636 Hawkes Pacific Pty Ltd v Casair Pty Ltd [2011] WASC 152 Re Carltom and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd [1998] FCA 128 SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 Somerville v Dalby (1990) 69 LGRA 422 Trade Practices Commission v APM Investments Pty Ltd (No 2) (1983) 74 FCR 276 Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 Category: Procedural and other rulings Parties: Australian International Academy of Education Inc (Applicant) The Hills Shire Council (Respondent) Representation: COUNSEL: Mr T Robertson SC (Applicant) Mr T Hale SC (Respondent) SOLICITORS: Woolf Associates (Applicant) The Hills Shire Council (Respondent) File Number(s): 10685 of 2011 Judgment 1On 14 November 2011, by consent, I gave leave to the applicant to discontinue these proceedings under r 12.1 of the Uniform Civil Procedure Rules 2005 and reserved the question whether leave should be subject to a condition proposed by the respondent. 2The proceedings are a Class 1 appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 ( EPA Act ) against a deemed refusal of development consent under s 82(1). 3The proceedings were fixed for hearing before a commissioner of the Court on Monday 14 November 2011 for three days. 4The development application concerned development of a value which brought it within the jurisdiction of a joint regional planning panel. On Thursday 10 November 2011, the panel granted development consent subject to conditions. Relevantly, condition 98 provided as follows: " 98. Dedication of Public Road No Occupation Certificate can be issued until the proposed "local road" has been dedicated as public road at no cost to Council, requiring a separate development application or complying development application. This dedication must occur at no cost to Council. Adequate time must be allowed for the completion of this process so as to not delay the issuing of an Occupation Certificate for the development. " 5Taking the view that the appeal lacked utility and had abated because of the development consent, the applicant on the afternoon of Friday 11 November 2011 filed a notice of motion for leave to discontinue the appeal. As the appeal was fixed to commence before the Commissioner at 10 am on Monday 14 November, the applicant's motion for leave to discontinue came before me for hearing at 9 am that day. 6At that hearing, the respondent council contended that leave should be granted subject to a condition that: " The applicant agrees that it will accept condition 98 of the development consent issued and as determined by the Joint Regional Planning Panel on 10 November 2011 and that it will not challenge, in any future proceedings whether in Class 4 or otherwise, the validity of that condition. " 7As the clock approached 10 am (the time at which the Commissioner was due to commence hearing the appeal), the parties consented to an order, which I made, that leave to discontinue be granted, and argument continued as to whether the condition of leave proposed by the council should be imposed. 8Sections 82 and 97(1) of the EPA Act provide: " 82 Circumstances in which consent taken to have been refused (1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires. (2) Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise. (3) A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made. (4) If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal. (5) This section does not apply in respect of a development application if section 97 does not apply to the application. 97 Appeal by applicant-development applications (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after: (a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or (b) the date on which that application is taken to have been determined under section 82 (1). " 9According to Somerville v Dalby (1990) 69 LGRA 422 at 432, upon discontinuance of an appeal under s 97, a development consent becomes effective and operative. 10The validity of a dedication condition such as condition 98 is a contentious issue in the appeal. 11The council submits that its development control plan contemplates dedication of the road to which condition 98 refers. The applicant takes the position that while it may be required to construct the road, a condition that it dedicate the road without compensation is invalid. It is unnecessary for present purposes to resolve that issue. 12The council submits that: (a)the fundamental proposition under s 97(1) of the EPA Act is that the applicant is dissatisfied with the determination of a consent authority; (b)the applicant should not have the benefit of the Panel's consent (avoiding the risk of losing on the merits in the appeal) while leaving to the future a challenge to the validity of condition 98. 13Discontinuance of a claim does not involve a determination on the merits. While the Court will normally grant leave to an applicant to discontinue if the applicant wants to, the discretion to grant leave is unfettered. In some cases the Court may determine that a grant of leave to discontinue is to be subject to conditions, and in a rare case the Court may consider it appropriate to refuse leave. In formulating any conditions upon which leave will be granted, the Court should take into account the interests of the parties and any relevant element of public interest. One condition that may be imposed is that the plaintiff not bring an identical claim without leave of the Court. The principle underlying such a condition is that defendants and the courts are entitled not to be repeatedly troubled by identical claims unless strong countervailing considerations of justice demand it (for example, the emergence of evidence which was unobtainable, or a new precedent). See Fox v Star Newspaper Company [1898] 1 QB 636 at 639 (CA); Trade Practices Commission v APM Investments Pty Ltd (No 2) (1983) 74 FCR 276 at 280; on appeal sub nom SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 at 353, 355, 356, 358 (FCAFC); Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 at 383-384; Re Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd [1998] FCA 128 at [6], [8]; Hawkes Pacific Pty Ltd v Casair Pty Ltd [2011] WASC 152 at [112] - [114]. 14A case such as the present differs from ordinary civil litigation in that the occasion for the applicant to discontinue its appeal against a deemed refusal of development consent was the intervening decision of the consent authority to grant development consent, as permitted by s 82(2) of the EPA Act. The decision obviates the need for this Court to determine whether development consent should be granted. In my opinion, in such circumstances, an applicant ordinarily should be given leave to discontinue without imposing a term that restrains it from contesting in the future, if it wishes to do so, the validity of a condition of the consent that otherwise would have been agitated in the appeal. The alternative of refusing leave, thus pressuring the applicant to litigate for days the merits of the development application which the consent authority has determined in its favour, would neither be fair to the applicant nor in the public interest. 15Accordingly, I decline to impose the respondent's proposed condition on the leave earlier granted to the applicant to discontinue the appeal. The applicant has agreed to pay the respondent's costs in the sum of $16,000. The orders of the Court are as follows: 1.By consent, the applicant is to pay the respondent's costs in the agreed sum of $16,000. 2.The exhibits may be returned. 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. Decision last updated: 17 November 2011