Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 1295

Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 1295

Condition 3(a) should be deleted by consent because, after the Council compulsorily acquired the relevant strip of land, the applicant could no longer create and register the easement and the access was already provided under the acquisition. Although the Court had power under r 36.16(1) to vary the unentered orders by deleting condition 3(b), the discretion should not be exercised because the change in circumstances occurred after the earlier orders, did not involve an overlooked fact or law, the public interest in finality required caution, and the applicant had an alternative process under s 96(1) of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
01 October 2010
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application to Modify a Development Consent / Remitted Class 1 Appeal After S 56 a Appeal; Notice of Motion Under R 36.16(1) of the Uniform Civil Procedure Rules 2005 Before Entry of the Earlier Orders
Outcome
Condition 3(a) to be deleted by consent on remittal; the applicant's notice of motion to delete condition 3(b) dismissed.
Legal Topics
['modification of Development Consent Conditions' 'easements for Right of Carriageway and Drainage' 'variation of Unentered Orders' 'finality of Litigation' 'compulsory Acquisition of Land']
['environmental Planning and Development' 'civil Procedure' 'land and Environment Court Procedure'] ['modification of Development Consent Conditions' 'easements for Right of Carriageway and Drainage' 'variation of Unentered Orders' 'finality of Litigation' 'compulsory Acquisition of Land']

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Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application to Modify a Development Consent / Remitted Class 1 Appeal After S 56 a Appeal; Notice of Motion Under R 36.16(1) of the Uniform Civil Procedure Rules 2005 Before Entry of the Earlier Orders

Legal Issues

  1. 1 ['Whether condition 3(a) of the development consent should be deleted on remittal after the Council compulsorily acquired the relevant strip of land.' 'Whether the Court had power under r 36.16(1) of the Uniform Civil Procedure Rules 2005 to vary the unentered orders of 1 October 2009 by deleting condition 3(b).' 'Whether the discretion to vary the unentered orders should be exercised to delete condition 3(b).']

Ratio Decidendi

Condition 3(a) should be deleted by consent because, after the Council compulsorily acquired the relevant strip of land, the applicant could no longer create and register the easement and the access was already provided under the acquisition. Although the Court had power under r 36.16(1) to vary the unentered orders by deleting condition 3(b), the discretion should not be exercised because the change in circumstances occurred after the earlier orders, did not involve an overlooked fact or law, the public interest in finality required caution, and the applicant had an alternative process under s 96(1) of the Environmental Planning and Assessment Act 1979.

Court Disposition

Condition 3(a) to be deleted by consent on remittal; the applicant's notice of motion to delete condition 3(b) dismissed.

Orders

  • ['The parties are to provide by Tuesday 5 October 2010 agreed amendments to Annexure A to the orders of 1 October 2009 to reflect the deletion of condition 3(a) of the development consent.' 'Final orders will be made in chambers.' "The applicant's notice of motion seeking deletion of condition 3(b) is dismissed."]