Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 81

Aesthete No. 9 Pty Limited v Blue Mountains City Council [2019] NSWLEC 81

Aesthete did not establish any basis to set aside the Commissioner's judgment and orders. The Council ecologist's failure to advise on the amended Vegetation Management Plan by 10 April 2019 occurred after the s 34 agreement was reached and could not affect its terms; the evidence did not support Aesthete's contention that entry into the agreement depended on that representation; the acceptability of the amended Vegetation Management Plan was not an issue in the proceedings or in the s 34 agreement; and finality weighed against setting aside the judgment and orders. Because the judgment and orders were not set aside, there was no basis to reopen the proceedings or consider setting aside...

Jurisdiction
Australia
Judgment Date
28 May 2019
Procedural Posture
Class 1 Proceedings; Amended Notice of Motion Concerning a S 34 Agreement and Orders Modifying a Development Consent / Application After Judgment to Set Aside the Parties' S 34 Agreement, Reopen Proceedings, and Limit Further Hearing to Ecology Issues
Outcome
The amended notice of motion was dismissed, with no order as to costs, and the Court corrected a mistake in its earlier orders under the slip rule.
Legal Topics
['modification of Development Consent' 'section 34 Conciliation Agreement' 'setting Aside Judgment or Orders' 'reopening Proceedings After Judgment' 'ancillary Jurisdiction' 'slip Rule Correction']
['planning and Environment' 'civil Procedure'] ['modification of Development Consent' 'section 34 Conciliation Agreement' 'setting Aside Judgment or Orders' 'reopening Proceedings After Judgment' 'ancillary Jurisdiction' 'slip Rule Correction']

Case Brief

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Procedural Posture

Class 1 Proceedings; Amended Notice of Motion Concerning a S 34 Agreement and Orders Modifying a Development Consent / Application After Judgment to Set Aside the Parties' S 34 Agreement, Reopen Proceedings, and Limit Further Hearing to Ecology Issues

Legal Issues

  1. 1 ["Whether the Commissioner's judgment and orders disposing of the proceedings in accordance with the parties' s 34 agreement should be set aside under r 36.16 of the Uniform Civil Procedure Rules 2005." "Whether the parties' s 34 agreement should be set aside because the Council's ecologist did not consider and advise on the amended Vegetation Management Plan by 10 April 2019." 'Whether the proceedings could be reopened for determination of ecology, flora and fauna, and vegetation management issues.' "Whether the Court's orders of 16 April 2019 should be corrected to refer to modification of the development consent rather than the development application."]

Ratio Decidendi

Aesthete did not establish any basis to set aside the Commissioner's judgment and orders. The Council ecologist's failure to advise on the amended Vegetation Management Plan by 10 April 2019 occurred after the s 34 agreement was reached and could not affect its terms; the evidence did not support Aesthete's contention that entry into the agreement depended on that representation; the acceptability of the amended Vegetation Management Plan was not an issue in the proceedings or in the s 34 agreement; and finality weighed against setting aside the judgment and orders. Because the judgment and orders were not set aside, there was no basis to reopen the proceedings or consider setting aside...

Court Disposition

The amended notice of motion was dismissed, with no order as to costs, and the Court corrected a mistake in its earlier orders under the slip rule.

Orders

  • ['The amended notice of motion filed on 29 April 2019 is dismissed.' 'Order 2 of the Court\'s orders dated 16 April 2019 is corrected by omitting the words "development application" and inserting instead "development consent".']