Land and Environment Court New South Wales Medium Neutral Citation: Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 81 Hearing dates: 27 May 2019 Date of orders: 28 May 2019 Decision date: 28 May 2019 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: (1) The amended notice of motion filed on 29 April 2019 is dismissed. (2) Order 2 of the Court's orders dated 16 April 2019 is corrected by omitting the words "development application" and inserting instead "development consent". Catchwords: JUDGMENT AND ORDERS – judgment in accordance with parties' agreement reached at conciliation conference – application to reopen proceedings after judgment – application to set aside judgment – application to set aside parties' agreement – ancillary jurisdiction of Land and Environment Court – no basis to set aside judgment established – notice of motion dismissed Legislation Cited: Biosecurity Act 2015 Civil Procedure Act 2005 s 56 Environmental Planning Assessment Act 1979 s 4.55 Land and Environment Court Act 1979 s 34 Uniform Civil Procedure Rules 2005 r 36.16 Cases Cited: Aesthete No. 9 Pty Limited v Blue Mountains City Council [2017] NSWLEC 1199 Aesthete No. 9 Pty Ltd v Blue Mountains City Council [2019] NSWLEC 1178 Council of the City of Sydney v Wilson Parking Australia Pty Ltd & Anor [2015] NSWLEC 42 Category: Procedural and other rulings Parties: Aesthete No. 9 Pty Limited (Applicant on the Motion) Blue Mountains City Council (Respondent on the Motion) Representation: Counsel: Mr F Amirbeaggi (solicitor) Mr T Cork (solicitor) Solicitors: Yates Beaggi Lawyers Pty Ltd (Applicant on the Motion) Blue Mountains City Council (Respondent on the Motion) File Number(s): 2018/122321 Publication restriction: Nil Judgment 1. Aesthete No 9 Pty Limited ("Aesthete"), by an amended notice of motion, seeks to set aside an agreement reached between Aesthete and Blue Mountains City Council ("the Council"), under s 34 of the Land and Environment Court Act 1979 ("Court Act"), on 5 April 2019. The parties had reached agreement as to the terms of a decision, in proceedings brought by Aesthete appealing against the Council's deemed refusal of Aesthete's application to modify a development consent for a 17 lot subdivision at 54 Luchetti Avenue, Hazelbrook, in the Blue Mountains, that would acceptable to the parties. The decision was that the development consent should be modified to permit 21 lots instead of 17 lots in the subdivision. A Commissioner of the Court, Commissioner Chilcott, disposed of the proceedings, under s 34(3) of the Court Act, in accordance with the parties' decision. Aesthete now wishes to revisit that agreement. To understand why, it is necessary to recount the litigation history. 2. On 21 April 2017, this Court granted development consent for a 17 lot subdivision ("the 2017 consent"): Aesthete No. 9 Pty Limited v Blue Mountains City Council [2017] NSWLEC 1199. Part of the land to the west of Luchetti Avenue was then zoned E2 (Environment Conservation) under the then applicable local environment plan, Blue Mountains Local Environmental Plan 1991 ("LEP 1991") and was designated as "Protected Area - Environmental Constraint Area" (as the development application had been lodged in 2015, it was required to be determined under the repealed LEP 1991). The 17 lot subdivision retained this western part of the site as a large lot and subdivided the site to the east of Luchetti Avenue. 3. Of relevance to the current application, the consent was subject to three conditions, conditions 1, 4, and 18. Condition 1 required the development to be carried out in accordance with the plan specified in the condition. Condition 4 required the development to comply with all conditions in the Bush Fire Safety Authority issued by the NSW Rural Fire Service, dated 9 December 2016. Condition 18 required the preparation and submission to the Council for approval of a Vegetation Management Plan ("VMP"). The VMP was required to demonstrate compliance with the Residential-Bushland Conservation Zone objectives in LEP 1991, and address the nine matters specified in the condition, including the protection of native vegetation located beyond the footprint of the approved works. 4. Subsequent to the Court granting development consent, the zoning and protected area designation of the western part of the site was changed, by Amendment No 8 to Blue Mountains Local Environmental Plan 2015, on 6 April 2018. The amendment changed the zoning of the land from Zone E2 to Zone E4 - Environment Living, and removed the protected area designation. Apparently, there had been a mapping error in including the western part of the site in the environmental zoning and designation. This change in zoning and designation of the western part of the site enabled the further subdivision of the site with development consent. 5. On 5 February 2018, Aesthete lodged an application under the former s 96(2) (now s 4.55(2)) of the Environmental Planning Assessment Act 1979 ("EPA Act") to modify the development consent granted by the Court. The application described the modification sought to be made as "to amend the 1 into 17 lots approved subdivision into 1 into 21 lots." The modification application attached an amended plan of subdivision proposing essentially four more lots in the western part of the site. The Statement of Environmental Effects that accompanied the modification application stated that "the relevant conditions within the consent will be required to be updated", but did not identify the particular conditions that were to be updated or propose the modification sought to those conditions. 6. On 18 April 2018, Aesthete appealed against the deemed refusal of the modification application by the Council to the Court. The Council raised two contentions in its statement of facts and contentions: first, that the development to which the consent as modified would relate would not be substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all) (contention B1.1) and, secondly, that the modification application contains insufficient information to enable a full and proper assessment of the application (contention B2.1). The second contention was particularised by identifying the additional information said to be required to allow the Council to assess the modification application, being a bushfire protection report to reflect the amended plan of subdivision; an amended plan of subdivision; an updated flora and fauna assessment to support the modified subdivision proposal; a vegetation management plan that identifies and addresses the proposed modified subdivision and addresses "the criteria identified below (which are reflective of the requirements of condition 18)" of the 2017 consent; an updated stormwater management report; and additional information addressing the environmental impact of stormwater management. 7. Aesthete filed a statement of facts and contentions in reply, in which Aesthete responded to the Council's two contentions. As to the first, Aesthete countered that the proposed modified development would be substantially the same as the development for which consent was originally granted. As to the second, Aesthete rejected the Council's contention that insufficient information had been provided. In relation to the Council's contention that a VMP addressing the modified subdivision should be provided, Aesthete contended that: "(d) the preparation of any vegetation management plan is properly a matter for consideration in the construction of any dwellings upon the land and not a matter for the subdivision stage." 1. During the preparation of the appeal for hearing, Aesthete provided further information in order to address the Council's concerns raised in contention B2.1. The parties' experts, including the parties' ecological experts, participated in the usual joint conferencing and reporting process. The parties' ecological experts disagreed concerning the contents of the VMP. On 21 March 2019, Aesthete's solicitor emailed an amended VMP to the Council's solicitor. The amended VMP was raised at the conciliation conference arranged by the Court under s 34 of the Court Act on 5 April 2019. 2. At the conciliation conference on 5 April 2019, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties signed and handed to the Commissioner presiding at the conciliation conference a written agreement under s 34(3) of the Court Act. The terms of the decision that would be acceptable to the parties were stated in the written agreement to be: "(a) Appeal upheld. (b) Approval is granted for the modification of development application S/45/2015 (dated 27 April) as set out in the conditions of consent attached as Annexure 'A'. (c) Pursuant to section 34(3), the parties request the Court to dispose of these proceedings in accordance with the agreement recorded in (a) and (b) above." 1. It can be seen that there is a mistake in proposed order (b) in referring to the "development application" instead of the "development consent". The power in s 4.55(2) of the EPA Act is to modify the development consent, not the development application. 2. The conditions of consent attached as Annexure "A" modified three conditions of the 2017 consent, conditions 1, 4 and 18. Condition 1 was modified by substituting updated references to the subdivision plans and documents for the 21 lot subdivision. Condition 4 was modified to update the reference to the more recent Bush Fire Safety Authority issued by the NSW Rural Fire Service dated 24 October 2018. Condition 18 was modified to update the legislative reference in para (h) to the Biosecurity Act 2015, and the URL reference to the Council guidelines. 3. The Commissioner presiding at the conciliation conference asked the parties' legal representatives to address him on the issue of whether the parties' agreement as to the decision to be made was a decision that the Court could have made in the proper exercise of its functions, being the requirement in s 34(3) of the Court Act. 4. The parties' legal representatives, Mr Pickles SC for Aesthete and Mr Cork, solicitor for the Council, addressed the Commissioner, as he had requested, demonstrating that the jurisdictional prerequisites to the exercise of the power under s 4.55(2) of the EPA Act had been satisfied. This included satisfying the Council's first contention concerning whether the modified development was substantially the same as the development to which consent had originally been granted. 5. The Commissioner reserved his judgment on the issue of whether the parties' decision was one that the Court could have made in the proper exercise of its functions. The Commissioner gave judgment on this issue on 16 April 2019: Aesthete No. 9 Pty Ltd v Blue Mountains City Council [2019] NSWLEC 1178. The Commissioner identified the jurisdictional prerequisites that must be satisfied before the function under s 4.55(2) of the EPA Act to modify the 2017 consent could be exercised (in [7] of the judgment) and explained why he was satisfied that the jurisdictional prerequisites had been met (in [8] of the judgment). The Commissioner concluded that the decision of the parties was one that the Court could make in the proper exercise of its functions (at [10] of the judgment). Having so concluded, the Commissioner was obliged, under s 34(3)(a) of the Court Act, to dispose of the proceedings in accordance with the parties' decision (at [11] of the judgment). The Commissioner did so, by making orders in terms of the parties' written agreement (at [12] of the judgment). Unfortunately, this perpetuated the mistaken reference to modification of the "development application" rather than the "development consent". 6. The Commissioner's judgment and orders were entered on the same day, 16 April 2019. 7. Aesthete meanwhile had become concerned that the Council had not approved the amended VMP that Aesthete had submitted to the Council on 21 March 2019. Condition 18 of the 2017 consent, as well as condition 18 of the modified consent, required Aesthete to submit for approval by the Council a Vegetation Management Plan. With the modification of the 2017 consent to enlarge the subdivision to 21 lots, the condition changed its operation to require a Vegetation Management Plan for the modified 21 lot subdivision rather than the original 17 lot subdivision. The amended VMP submitted on 21 March 2019 addressed the modified 21 lot subdivision. The Council, however, had not determined whether it approved of this amended VMP. 8. Aesthete's solicitor, Mr Amirbeaggi, said that at the conciliation conference on 5 April 2019, the Council's solicitor, Mr Cork, had represented that the Council's ecologist, Ms Nagle, would review the submitted amended VMP and advise Aesthete by Wednesday 10 April 2019 as to whether she approved of it. Mr Amirbeaggi contended that Aesthete entered into the s 34 agreement on 5 April 2019 on the basis of the representation. Mr Amirbeaggi's evidence on this contention was as follows: "A discussion ensued between the parties at to whether the conciliation conference should be adjourned so that the respondent could consider the updated VMP. During that discussion, Mr Cork represented that the respondent's expert would consider the updated VMP by no later than the following Wednesday, 10 April 2019, and advise whether it was acceptable or not. On the basis of that representation, I instructed Mr Pickles to accept the s 34 agreement. I expected that if the respondent's expert did not accept the updated VMP by the following Wednesday, we could communicate the position to Commissioner Chilcott prior to the issuance of any consent." 1. This assertion of Mr Amirbeaggi was contested by Mr Cork. Mr Cork accepted that Mr Amirbeaggi at the conciliation conference on 5 April 2019 had asked about what was happening with the amended VMP that he had sent on 21 March 2019. Mr Cork accepted that he said he would ask the Council's ecologist, Ms Nagle, to look at the VMP next week and give Mr Amirbeaggi an answer. Mr Cork noted that Ms Nagle only worked on Monday to Wednesday. 2. Mr Cork said Mr Amirbeaggi responded that, "We will have to get an adjournment", to which Mr Cork replied that, "But the VMP is not an issue in these proceedings. We are here to deal with our agreement that the consent be modified." Mr Amirbeaggi replied, "This has been going on for too long. We have to sort out the VMP." Mr Cork answered: "Well I doubt that the Commissioner will give us an adjournment. We are here because we told the Court that we had reached agreement. We should go ahead and deal with that agreement and deal with the VMP later." 3. Mr Cork noted that at around this point, Mr Pickles and Mr Amirbeaggi left the courtroom. After a short time they returned. Upon Mr Pickles and Mr Amirbeaggi returning to the courtroom, Mr Pickles said to Mr Cork, "I have spoken to Farshad [Mr Amirbeaggi]. We will take the consent. If the Council doesn't approve the VMP then there will just have to be a new appeal." 4. Mr Cork noted that there were no further discussions between the parties about the VMP during the remainder of the conciliation conference. 5. Mr Cork submitted that: "At no point did Mr Amirbeaggi indicate by words, actions or written communications that: (a) the respondent's assessment of the VMP, by 10 April 2019, was an essential matter for the applicant; (b) if the respondent did not consider and respond to the VMP by close of business on Wednesday 10 April 2019, the applicant would seek to reopen the proceedings; (c) the applicant was entering into the agreement on the condition that the respondent would consider and respond to the VMP by close of business on 10 April 2019; (d) the applicant considered that it was at liberty, at any time prior to Commissioner Chilcott making orders, as requested by the parties in the s 34 agreement, to approach the Commissioner and request that he not make those orders; (e) that the applicant proposed to seek to reopen the Class 1 appeal, and to put to the Court issues in relation to the VMP and the approval of the VMP, if the VMP was not assessed and determined by the respondent by close of business on 10 April 2019." 1. On 10 April 2019, Mr Amirbeaggi asked Mr Cork if he could have Ms Nagle review the VMP this week and provide her acceptance or refusal of it as the approved VMP. On 11 April 2019, Mr Amirbeaggi wrote again to Mr Cork, noting that his request for advice on whether Ms Nagle had reviewed the VMP had not drawn a response, and again requested "your urgent advice as to whether Ms Nagle has reviewed the Vegetation Management Plan and whether she accepts it as the approved form of Plan". Mr Amirbeaggi advised that: "If she does not, then the applicant will seek by Motion filed tomorrow to have the proceedings reopened, and placed back into the hearing list for determination of that issue to be tried." 2. On not receiving advice that Ms Nagle had agreed with the VMP, Aesthete's solicitor filed a notice of motion on 12 April 2019, seeking: "1. That proceedings 2018/00122321 be reopened and listed for further hearing before Commissioner Chilcott. 2. That the proceedings be limited to determination of the issue of Ecology and that the Court hear from the two Court appointed experts on the issue to be tried." 1. For reasons that are not apparent from the court file, the notice of motion was not listed for hearing until 23 April 2019. In the meantime, the Commissioner had given judgment and made the orders upholding the appeal and modifying the development consent in accordance with the parties' agreement (on 16 April 2019). 2. On 23 April 2019, on the return of the notice of motion, I pointed out the difficulty now facing Aesthete, that judgment had been given and the orders disposing of the proceedings had been entered. Accordingly, the proceedings could no longer be reopened unless and until the judgment and orders were set aside and, because the Commissioner had disposed of the proceedings in accordance with the parties' agreement under s 34(3) of the Court Act, that agreement was also set aside or otherwise found to have been terminated. I directed that Aesthete file an amended notice of motion by 26 April 2019 and any evidence in support by 2 May 2019, the Council file any evidence in reply by 7 May 2019 and the amended notice of motion be listed for hearing on 10 May 2019. 3. Aesthete's solicitor applied on 10 May 2019 to extend the timetable, because of professional difficulties in complying with the timetable, which application was granted by the Court. The hearing of the amended notice of motion was adjourned to 27 May 2019. 4. The amended notice of motion, filed on 29 April 2019, sought orders that: "1. That the Agreement entered pursuant to s 34 of the Land and Environment Court Act 1979, and dated 5 April 2019, be set aside. 2. The proceedings 2018/00122321 be reopened and listed before the registrar for allocation of a date for further hearing before Commissioner Chilcott. 3. That the proceedings be limited to determination of the issue of ecology (in particular fauna and flora and vegetation management) and that the Court hear from the two Court appointed experts on the issue to be tried." 1. It can be noted that Aesthete has not sought in the amended notice of motion to set aside the judgment or orders of the Court made and entered on 16 April 2019, only the s 34 agreement between the parties, in accordance with which the Court disposed of the proceedings. 2. On the hearing of the amended notice of motion, Aesthete's solicitor, Mr Amirbeaggi, nevertheless submitted that the Commissioner's judgment and orders should be set aside. He identified r 36.16(1) of the Uniform Civil Procedure Rules 2005 ("UCPR") as providing power to set aside the Commissioner's judgment and orders. He noted that the amended notice of motion was filed on 29 April 2019, which was within 14 days of the judgment and orders being entered. Hence, by dint of r 36.16(3A) of the UCPR, the Court may determine the application to set aside the judgment and orders "as if the judgment or order had not been entered". This enlivened the power in r 36.16(1) for the Court to set aside a judgment or order before entry of the judgment or order. 3. Mr Amirbeaggi submitted that the basis for setting aside the judgment and orders was that the Council's ecologist had not considered and advised whether she agreed with Aesthete's amended VMP by the date of Wednesday 10 April, being the date that the Council's solicitor had represented that she would do so. Mr Amirbeaggi submitted that this representation was the "consideration" for Aesthete entering into the s 34 agreement. The Council's failure to comply with the representation amounted to a repudiation of the agreement, entitling Aesthete to terminate the agreement. 4. Mr Amirbeaggi wrote to Mr Cork on 29 April 2019, purporting to terminate the s 34 agreement. Mr Amirbeaggi said in his email on 29 April 2019: "I note that the basis of the application/prayer is the failure of consideration by the Council in pursuance to the agreement, namely that the Council would determine the issue of ecology/vegetation management by close of Wednesday, 10 April 2019. We note that the Council remains in continuing default. The applicant accepts the Council's repudiation, and herewith terminates the agreement." 1. Mr Amirbeaggi submitted that the termination of the s 34 agreement removes the foundation for the Commissioner's judgment and orders. The Commissioner only gave the judgment and orders in order to dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Court Act. Now that there is no extant s 34 agreement, the Commissioner's judgment and orders should be set aside. 2. Mr Amirbeaggi submitted that Aesthete's reason for seeking to terminate the agreement and set aside the Court's judgment and orders was to enable the issue of the acceptability of the amended VMP to be determined by the Court in the proceedings. Mr Amirbeaggi submitted that it would not be consonant with the objective of s 56 of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the proceedings, for the issue of the acceptability of the amended VMP to be determined in new proceedings, rather than in the current proceedings. 3. The Council's solicitor, Mr Cork, contested Aesthete's application. First, Mr Cork noted that Aesthete had not sought in the amended notice of motion to set aside the Commissioner's judgment or orders. 4. Secondly, Mr Cork submitted that the parties' agreement under s 34(3) of the Court Act did not depend on any representation concerning the Council's ecologist considering and approving Aesthete's updated VMP. That was not a term of the s 34 agreement. There is no reference in the s 34 agreement to any of: "(a) The VMP; (b) The time within which the VMP (submitted on 21 March 2019) would be assessed and responded to by the respondent; (c) Any intention of the applicant to apply to seek to set aside the s 34 agreement, and to reopen the Class 1 proceedings, if the respondent did not assess and determine the VMP, whether by 12 April 2019 or at all." 1. Mr Cork referred to his evidence of what had occurred at the time of the conciliation conference on 5 April 2019 (which I have summarised earlier). Aesthete's senior counsel had said that: "We will take the consent. If the Council doesn't approve the VMP, then there will just have to be a new appeal." Mr Cork submitted that Aesthete entered into the s 34 agreement on this basis and asked the Commissioner to dispose of the proceedings in accordance with this agreement. 2. Thirdly, Mr Cork submitted that no issue concerning the Council's approval of the VMP under condition 18 of the 2017 consent, or the proposed modified consent, was raised in the proceedings. The Council did not raise it as a contention in its statement of facts and contentions, and Aesthete did not raise it as a contention in its statement of facts and contentions in reply. Aesthete did not propose any modification to condition 18, such as to propose a condition approving Aesthete's amended VMP. Aesthete's senior counsel did not address the Commissioner on the amended VMP or condition 18. 3. Mr Cork submitted, therefore, that the Commissioner's judgment and orders should not be set aside in order to allow Aesthete to raise and to litigate an issue that had not previously been raised in the proceedings before judgment was given. 4. I agree with the Council that Aesthete has not established any basis for setting aside the Commissioner's judgment and orders. 5. First, the principle of finality speaks against setting aside the Court's judgment and orders. Aesthete has not established any circumstance prior to judgment being given and the orders being made, which would justify setting aside the judgment and orders. 6. Secondly, the event relied upon by Aesthete occurred after the parties had reached agreement under s 34(3) on 5 April 2019. That event is the Council's ecologist not considering and advising by 10 April 2019 her view as to the acceptability of the amended VMP. The subsequent event cannot affect the terms of the parties' s 34 agreement that was reached at an earlier point of time on 5 April 2019, regardless of whether it was or was not the consideration for Aesthete entering into the agreement. 7. Thirdly, the circumstances at the time of the parties entering the agreement on 5 April 2019 do not support Aesthete's contention that it entered the s 34 agreement in reliance on the representation that the Council's ecologist would consider and advise on the amended VMP by 10 April 2019. As Mr Cork's evidence establishes, Aesthete's senior counsel expressly said that this was not the basis on which Aesthete agreed to enter the s 34 agreement. Aesthete wanted to "take the consent", that is, to have the Court make orders modifying the development consent on the conditions agreed in the s 34 agreement. There was no suggestion that the issue of the acceptability of the amended VMP would be litigated. 8. Fourthly, the issue of the acceptability of the amended VMP was not in issue in the proceedings. Neither the Council nor Aesthete had raised it as a contention. Aesthete made no application to modify condition 18 of the 2017 consent, including to have condition 18 approve the amended VMP. The terms of the agreement reached between the parties did not address the acceptability of the amended VMP. Other than minor updating of references, no change to condition 18 was proposed. 9. In these circumstances, there is no justification to set aside the Court's judgment and orders under r 36.16(1) of the UCPR. 10. Unless the Court's judgment and orders are to be set aside, there is no warrant to consider whether to set aside the s 34 agreement of the parties, as Aesthete sought in order 1 of the amended notice of motion. I have doubts whether the Court would have jurisdiction to do so. The Court does have jurisdiction under s 16(1A) of the Court Act: "to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act." 1. However, this ancillary jurisdiction is dependent on identification of a matter that falls within jurisdiction under a provision of the Court Act or under any other Act. Unless the judgment or order of the Court disposing of the proceedings in accordance with a decision in an agreement made under s 34 of the Court is set aside, there would seem not to be any matter that falls within the Court's jurisdiction to be decided: see Council of the City of Sydney v Wilson Parking Australia Pty Ltd & Anor [2015] NSWLEC 42 at [33]-[49] and cases therein cited. 2. As the Court's judgment and orders are not to be set aside, there is no hearing of the proceedings that can be reopened. I refuse order 2 of the amended notice of motion. 3. In the circumstances, Aesthete's amended notice of motion should be dismissed. 4. Neither party sought costs of the motion and accordingly, I make no order as to costs. 5. I have raised in the course of giving judgment that there was a mistake in both the parties' s 34 agreement and the Court's orders of 16 April 2019, by referring to the modification of the development application rather than the modification of the development consent. Having brought this mistake to the attention of the parties, both parties consent to the Court correcting the mistake under the slip rule in r 36.17 of the UCPR. I will do so. 6. The Court orders: 1. The amended notice of motion filed on 29 April 2019 is dismissed. 2. Order 2 of the Court's orders dated 16 April 2019 is corrected by omitting the words "development application" and inserting instead "development consent". ********** 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: 12 June 2019