Land and Environment Court New South Wales Medium Neutral Citation: Denny v Central Coast Council (No 2) [2019] NSWLEC 1565 Hearing dates: 15 November 2019 Date of orders: 21 November 2019 Decision date: 21 November 2019 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) That the Court correct the Judgment handed down on 15 October 2019 by replacing Condition 4.7 of the Judgment with the condition number 4.7 set out in Annexure A on page 6 of the s34 agreement between the parties and filed on 26 September 2019. (2) That the Court correct the Judgment handed down on 15 October 2019 by: (a) amending the case name and respondent's name to show the correct title of the respondent as Central Coast Council. (b) amending the name of the representative solicitors for the applicant as Penman Solicitors and for the respondent as Central Coast Council. Catchwords: DEVELOPMENT APPLICANTION – removal and replacement of fence structures – conciliation conference – agreement between the parties – orders NOTICE OF MOTION – application to amend the Court's orders to allow for correct case name, parties name references and condition of consent – Uniform Civil Procedure Rules – rule 36.16(3A) Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Anthony James Denny (Applicant) Central Coast Council (Respondent) Representation: Counsel: N Hammond (Respondent) Solicitors: Central Coast Council (Respondent) File Number(s): 2019/23889 Publication restriction: No Judgment 1. COMMISSIONER: On 15 October 2019, I delivered a judgment and made final orders disposing of these proceedings in accordance with the parties' executed s34 agreement (the Judgment). 2. I have been asked to vary the Judgment, this time referencing the correct case name and name of the parties' solicitors, and amending conditions of consent, specifically condition 4.7, in Annexure A. Background to the 15 October 2019 orders 1. The proceedings concern a Class 1 appeal in relation to a refusal of Development Application (DA) 54624/2018 by Central Coast Council (hereafter the Council) for demolition of an existing fence and construction of a new fence along the front boundary on Lot 434 DP 660287, also known as 49 Wards Hill Road, Killcare Heights (hereafter the site). 2. The Class 1 appeal to the Land and Environment Court (the Court) was made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 11 September 2019. I presided over the conciliation conference. There were two objectors whom spoke at this conciliation on the issue relating to character. 4. At the conciliation conference, the applicant sought to amend the DA and associated plans to include a change in the materials, height and presentation of the fence, and provide openings for ecological traverse. 5. Based on the amended DA and plans, together with the agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision was to uphold the appeal and grant consent to DA 54624/2018 with conditions. The terms of the decision as agreed by the parties are as follows: 1. The appeal is upheld. 2. Development application DA 54624/2018 is approved, subject to the conditions in Annexure 'A'. 1. Under s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. At that time, I was told by the parties that the jurisdictional prerequisites had been satisfied and that the parties' decision was one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. The parties' decision involved the Court exercising its functions under ss 4.14(1) and 4.15(1) of the EPA Act 1979, to approve consent to the DA as set out in Annexure A of this judgment, and made pursuant to s 4.16. 3. Therefore, under s 34(3) of the LEC Act, I disposed of the proceedings in accordance with the parties' decision and on 15 October 2019 ordered as follows: 1. The appeal is upheld. 2. Development application DA 54624/2018 is approved, subject to the conditions in Annexure 'A'. Notice of Motion dated 25 October 2019 1. After the publication of my judgment and the final orders being entered, the respondent's solicitor, Mr Mark Everingham, filed a Notice of Motion (Motion) on 25 October 2019. It is listed before me today. 2. The Motion seeks the amendment of the Court's Judgment, dated 15 October 2019, pursuant to rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (UCPR) which is set out as follows: 36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9) (1) 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. (2) The court may set aside or vary a judgment or order after it has been entered if— (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it— (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. 1. The applicant does not oppose or make submission to the Motion as moved by the respondent today with the Court. 2. Put simply, the parties agree that the conditions of the DA consent forwarded to the Court did not reflect the signed s34 agreement as reached by the parties at the conciliation conference and the Judgment did not reflect accurate party references. The word version of Annexure A provided to the Court separately to the signed s34 agreement incorrectly detailed condition 4.7, which relates to the reuse, recycling and disposal of materials. In addition, the Court incorrectly referenced on the cover page of the Judgment the case name and parties' solicitors. 3. The parties now seek to vary the Judgment, namely to address their error by substituting a new document marked Annexure A to the 15 October 2019 orders with the fully detailed condition 4.7, and the Court's error in the case name and parties' solicitors. 4. As the "mistake" in the orders was notified to the Court by way of the Motion within 14 days of the Judgment being entered, the Judgment of 15 October 2019 can be varied, pursuant to rule 36.16(3A) of the UCPR. 5. As the Court has power to amend the Judgment of 15 October 2019, and based on the respondent's evidence, which is not disputed by the applicant, I am now satisfied that I have jurisdiction to make the orders sought today as they reflect the agreement reached under s 34(3) of the LEC Act. I am also satisfied that the decision that I am being asked to make is one that the Court could have made in the proper exercise of its functions. 6. Condition 4.7 as detailed in Annexure A of the signed s34 agreement filed with the Court on 26 September 2019 is the same as the orders sought. The case name and name of the parties' solicitors is as represented at the conciliation. 7. For those reasons and with the consent of the parties, I make the following orders: 1. That the Court correct the Judgment handed down on 15 October 2019 by replacing Condition 4.7 of the Judgment with the condition number 4.7 set out in Annexure A on page 6 of the s34 agreement between the parties and filed on 26 September 2019. 2. That the Court correct the Judgment handed down on 15 October 2019 by: 1. amending the case name and respondent's name to show the correct title of the respondent as Central Coast Council. 2. amending the name of the representative solicitors for the applicant as Penmans Solicitors and for the respondent as Central Coast Council. ………………………. Sarah Bish Commissioner of the Court Annexure A (32.6 KB, pdf) ********** Amendments 21 November 2019 - Correction to typographical error at [3]. 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: 21 November 2019