Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority (No 9) [2022] NSWLEC 29

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority (No 9) [2022] NSWLEC 29

The 2014 consent orders made by the Land and Environment Court properly construed did not require further development consent for their implementation; they were within the Court's jurisdiction under s 124 EPAA, and relief to set aside those orders for illegality, irregularity, or public policy should be refused given the absence of demonstrated irregularity at their making, the Council's full participation in procuring them, and substantial discretionary factors (prejudice, delay, detriment) militating against setting them aside. The doctrines of res judicata, issue estoppel and Anshun estoppel preclude the Council from impugning the validity of the 2014 consent orders or relitigating...

Jurisdiction
Australia
Judgment Date
25 March 2022
Procedural Posture
Civil Enforcement / Judicial Review (class 4) / Principal Judgment / Determination Post Hearing
Outcome
In proceedings 2019/101279, declaration granted that applicant may lawfully carry out works ordered on 29 August 2014 without need to obtain further development consent; other relief dismissed. Cross-summons by Council dismissed. In proceedings 2019/203552, further amended summons dismissed. Orders as per [551]....
Legal Topics
['setting Aside Consent Orders' 'jurisdiction of Land and Environment Court' 'development Consent Construction' 'estoppel (res Judicata, Issue Estoppel, Anshun Estoppel)' 'remedial Orders Under EPAA S124' 'interpretation of Regulatory Instruments' 'invalidity of Environmental Protection Licence Variations']
['environmental Law' 'planning Law' 'administrative Law' 'local Government Law'] ['setting Aside Consent Orders' 'jurisdiction of Land and Environment Court' 'development Consent Construction' 'estoppel (res Judicata, Issue Estoppel, Anshun Estoppel)' 'remedial Orders Under EPAA S124' 'interpretation of Regulatory Instruments' 'invalidity of Environmental Protection Licence Variations']

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Procedural Posture

Civil Enforcement / Judicial Review (class 4) / Principal Judgment / Determination Post Hearing

Legal Issues

  1. 1 ['Whether 2014 consent orders can be set aside for illegality, improper purpose or public policy' 'Whether court had jurisdiction to make 2014 consent orders' 'Construction and operation of 1998 consent and its modifications' 'Nature and operation of estoppel and abuse of process in public law context' 'Whether new development consent required for works under 2014 orders' 'Validity of variations to EPL 11395 in absence of requisite development consent']

Ratio Decidendi

The 2014 consent orders made by the Land and Environment Court properly construed did not require further development consent for their implementation; they were within the Court's jurisdiction under s 124 EPAA, and relief to set aside those orders for illegality, irregularity, or public policy should be refused given the absence of demonstrated irregularity at their making, the Council's full participation in procuring them, and substantial discretionary factors (prejudice, delay, detriment) militating against setting them aside. The doctrines of res judicata, issue estoppel and Anshun estoppel preclude the Council from impugning the validity of the 2014 consent orders or relitigating...

Court Disposition

In proceedings 2019/101279, declaration granted that applicant may lawfully carry out works ordered on 29 August 2014 without need to obtain further development consent; other relief dismissed. Cross-summons by Council dismissed. In proceedings 2019/203552, further amended summons dismissed. Orders as per [551]....

Orders

  • ['The applicant may lawfully carry out the works ordered by the Court on 29 August 2014 in proceedings 40900 of 2012 without the need to obtain further development consent and otherwise dismisses the further amended summons (101279/2019).' "The first cross-applicant's cross-summons is dismissed." 'In proceedings...