Land and Environment Court New South Wales Medium Neutral Citation: Bunnings Properties Pty Ltd v Ku-ring-gai Council; (No 2) [2016] NSWLEC 1659 Hearing dates: 25 October 2016 Date of orders: 28 October 2016 Decision date: 28 October 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1. Leave is Leave granted to reopen the proceedings is granted, with respect to the application of clause 1.8A of the Ku-ring-gai Local Environmental Plan 2015 LEP 2015) following the Court of Appeal decision in in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Catchwords: NOTICE OF MOTION: whether leave should be granted to re-open hearing Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: De Angelis v Wingecarribee Shire Council [2016] 214 LGERA 96 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Category: Principal judgment Parties: Bunnings Properties Pty Ltd (Applicant) Ku-ring-gai Council.(Respondent) Representation: Counsel: Mr A Galasso SC (Applicant) Ms V McWilliam, barrister (Respondent) Solicitors: Norton Rose Fulbright (Applicant) Sparke Helmore.(Respondent) File Number(s): 16/152878 Publication restriction: No Judgment 1. These proceedings flow from an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (NSW), commenced by Bunnings Properties Pty Ltd (Bunnings) on 26 June 2015 against Ku-ring-gai Council's (the council) deemed refusal of Development Application No. DA0115/15 (DA). The DA was lodged with the council on 8 April 2015, seeking development consent for demolition of existing structures, tree removal, earthworks and retaining walls, construction of a four storey building and its use for hardware and building supplies, road widening and driveway access from Ryde Road, signage, landscaping, consolidation of titles and ancillary use of offices (for Bunnings staff) and cafe at 950 -950A Pacific Highway and 2 Bridge Street, Pymble (site). 2. The proceedings were heard before me from 26 - 28 April 2016 inclusive and on 6 November 2015 leave was granted to Bunnings to file amended plans in the proceedings. On 20 July 2016, I delivered interim findings in the proceedings, in which I found at [104] that although I was not satisfied that the development in the form presented to the Court was acceptable, I was satisfied that a "Hardware and building supplies" establishment, in some form, was capable of being constructed on the site. 3. By way of Notice of Motion filed on 9 September 2016, Bunnings sought the following orders be made: 1. Leave to reopen the proceedings is granted, with respect to the application of clause 1.8A of the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015); and 2. Such further or other orders as the Court thinks fit. Bunnings submissions 1. Mr Galasso SC submits that during the hearing of the proceedings, it was common ground between the parties that the DA fell within the savings provision in clause 1.8A of LEP 2015 with respect to the heritage status of the former 3M building. 2. The position taken by the parties reflected the findings of Justice Craig in De Angelis v Wingecarribee Shire Council (2016) 214 LGERA 96 which was authority in relation to the operation of the savings provision in cl 1.8A. In particular, the interim findings stated at [18] that: "The former 3M building was not listed as a heritage item at the time of the lodgement of the development application on 8 April 2015. While LEP 2015 came into effect on 5 March 2015, the amendment to LEP 2015 that inserted the former 3M building into Schedule 5 of LEP 2015 occurred on 1 May 2015. There was no dispute that the effect of this timing is that the applications [sic] falls within the savings provision in cl 1.8A of LEP 2015. Clause 1.8A states: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced." 1. Since the hearing and the delivery of the interim findings, De Angelis was the subject of an appeal to the Court of Appeal. On 1 August 2016, the Court of Appeal delivered judgment in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 where the effect was to overturn the findings made by Justice Craig in relation to the operation of cl 1.8A of the Wingecarribee Local Environmental Plan 2010 which is identical in terms to cl 1.8A of LEP 2015. In the leading judgment in the Court of Appeal decision, Justice Basten held at [9] that: "Generally, savings and transitional provisions are not ambulatory, but deal with a precise point in time, namely the point at which a new legal instrument commences. That is so with respect to cl 1.8A; it is inconsistent with its purpose, as well as its language, to give it any additional operation." 1. The effect of the Court of Appeal decision is that, as a matter of law, for the purposes of consideration of the DA from 1 May 2015 the site was a listed heritage item pursuant to Schedule 5 of LEP 2015. As a consequence the law has changed in relation to the operation of cl 1.8A of LEP 2015 since the Interim findings were delivered. 2. Given this change of circumstances, and that no final orders have yet been made in the proceedings, leave is sought to reopen the proceedings with respect to the proper application of cl 1.8A of LEP 2015. Council's submission 1. Ms McWilliam submits that this Court does not have the power to re-open a judgment that has been entered (the Court lacking inherent jurisdiction and the circumstance not falling within any statutory power). Further, even if the Court had the power, it would not exercise the discretion in this case, there being a ready avenue of appeal on the issue by way of s 56A of the Land and Environment Court Act 1979 2. Bunnings relies on Rule 2.1 of the Uniform Civil Procedure Rules 2005 (UCPR) as founding the Court's power to re-open. Rule 2.1 is a general rule for empowering directions and while its scope is broad, the power cannot be used to alter or circumvent substantive rights (Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257). 3. Reliance on Rule 2.1 is misplaced in the present motion because Bunnings is seeking to alter a finding in a judgment that determined substantive rights. For the purposes of any future proceedings, the judgment is a final judgment, with orders consequent upon it yet to be made (notwithstanding Bunnings description of the Judgment as 'interim'). That is a substantive right. 4. Importantly, the judgment has been entered. It has thus been 'perfected'. Regulation 7.6 of the Land and Environment Court Rules 2007 (Rules) previously governed the entry of judgments. Since 20 May 2016, when the Land and Environment Court published Land and Environment Court (Amendment No. 2) Rule 2016, UCPR 36.11 governs the entry of judgments as being entered when the judgment is recorded in the court's computerised court record system. This occurred on 20 July 2016. 5. Further, 14 days have passed (see UCPR 36.16(3A)) and none of the other provisions in UCPR 36.15 or UCPR 36.16 apply. Indeed, UCPR 36.16(3)(a) expressly excludes the Court's statutory power to vary the judgment insofar as it relates to the determined question of law. 6. Accordingly, the source of power to re-open the judgment (in order to vary it on a substantive question of law), if it exists, must be found elsewhere. 7. Ms McWilliam also makes alternate submissions in the event that I do not accept her principal submission that there is no power to re-open the hearing. Findings 1. In considering the comprehensive submissions I am satisfied that leave should be granted to re-open the hearing although for the reasons set out in the following paragraphs I am not certain that this necessary. 2. First, I do not accept that much of the submissions that deal with the principle of the finality of litigation are relevant as I am satisfied that there are no perfected orders in the proceedings. Rule 36.11 of the UCPR states: 36.11 Entry of judgments and orders (cf SCR Part 41, rule 11) (1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. (2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered: (a) when a document embodying the judgment or order is signed and sealed by a registrar, or (b) when the judgment or order is recorded as referred to in subrule (2), whichever first occurs. (3) In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005. (4) This rule does not limit the operation of rule 36.10. 1. Rule 36.11 provides that a judgment or order is taken to be entered when a document embodying the judgment or order is signed and sealed by the Registrar. No such document exists. The existence of the decision of 20 July 2016 on Caselaw or other electronic form does not satisfy the test in r 36.11 as the document needs to be signed and sealed by the Registrar. In practical terms, there is no judgment or order to be signed and sealed that could be entered given the invitation to address the concerns raised by the council. Given that invitation was accepted by Bunnings there has been no finality to the proceedings. 2. While the parties referred to the decision of 20 July 2016 as a "Judgment" or "Interim judgment", it is in essence only interim findings on the application before the Court. While the cover sheet to the decision unhelpfully refers to "Principal judgment", the number of categories available are limited by a drop down box and the use of "Principal judgment" was the most applicable of those available. Importantly, the cover sheet describes the Decision as "Directions for amended plans". The decision also provides no specific orders but suggests that the future progress of the matter will be discussed with the parties if Bunnings wish to provide alternate plans. Alternatively, if Bunnings did not wish to proceed with alternate plans, the decision states that the application should be dismissed; thereby bringing about finality to the proceedings but in this scenario only. 3. Secondly, I am satisfied that the interests of justice are best served by hearing from the parties on the Court of Appeal decision in De Angelis. It would be unacceptable to not allow the parties to provide submissions on the interpretation of cl 1.8A when this decision differed on the interpretation adopted by both parties at the hearing. I do not accept that it would be necessary to re-examine the heritage expert who provided evidence in the hearing or provide additional evidence as the Court of Appeal decision in De Angelis relates only to the interpretation of cl 1.8A which should be able to be addressed in short submissions by the legal representatives of the parties. I do not see how this would affect the expert heritage evidence although I will leave this to the parties to discuss and if necessary approach the Court to allow re-examination or new evidence. 4. For the reasons in the preceding paragraphs, the Court makes the following order: 1. Leave to reopen the proceedings is granted, with respect to the application of clause 1.8A of the Ku-ring-gai Local Environmental Plan 2015 LEP 2015 following the Court of Appeal decision in in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189. _______________ G Brown 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. Decision last updated: 02 March 2017