Abdo v Fairfield City Council; Tony and Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council

[2012] NSWLEC 233

Land and Environment Court

New South Wales

Medium Neutral Citation:

Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council [2012] NSWLEC 233

Hearing dates:

17 October 2012

Decision date:

17 October 2012

Jurisdiction:

Class 1

Before:

Sheahan J

Decision:

1. That contention 1 of the respondent's Statement of Facts and Contentions be listed for determination as a preliminary point of law in advance of the section 34 conciliation conference listed on 7 and 8 November 2012, if possible.

2. Costs to be costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE: should there be a hearing of a separate question before there is any hearing on the merits

Legislation Cited:

Fairfield Local Environmental Plan

Cases Cited:

Chehade v Bankstown City Council [2012] NSWLEC 221

Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81

Category:

Procedural and other rulings

Parties:

Fouad Abdo (Applicant 1 & 3)
Tony & Janet Partners Pty Ltd (Applicant 2)
Fairfield City Council (Respondent)

Representation:

Mr C R Ireland, barrister (Applicants)
Ms J McCullan, solicitor (Respondent)
Maddocks Lawyers (Applicants)
Marsdens Law Group (Respondent)

File Number(s):

10877 of 2012 10878 of 2012 10879 of 2012

Judgment

1. This is a referral to me as Duty Judge from the Registrar of a Notice of Motion ('NOM') returnable today.

1. These three Class 1 appeals are travelling together, and concern related proposals for development of boarding houses in Fairfield Council's area.

1. On 25 September they were listed, with the parties' agreement, for site inspections and preliminary conferences under s 34 on 7 - 8 November, and further directions on 13 November.

1. However, on 21 September Council's identical statements of facts and contentions had been filed in each matter, and Contention 1 squarely raises the argument that the proposals are prohibited, on one or possibly two grounds - they are either prohibited by the terms of the relevant Local Environmental Plan ('LEP'), and/or as a result of correctly testing the provisions of the LEP for equivalence with the model provisions. Each limb of that contention is particularised.

1. The correct test of equivalence was articulated in my recent decision in Chehade v Bankstown City Council [2012] NSWLEC 221. The formation of the requisite opinion is a question of fact, usually the province of a Commissioner, but the correct construction of the LEP to determine whether the use is permissible or prohibited is a question of law, or a mixed question of fact or law, which would normally be determined by a Judge.

1. On 9 October the applicants filed NOMs in each case seeking, in terms, the listing of the whole of Contention 1 for determination "as a preliminary point of law", in advance of the s 34 conference. It is likely to take about half a day, and the applicants argue that it should be allocated to a Judge, if a timeslot can be found before 7 November, in the hope that the question would be determined in favour of permissibility, in time for the s 34 conference to proceed. Given the current pressure on listing of judges, all of that may or may not prove possible, but the applicants are entitled to ask and hope.

1. The Council agrees to the separate resolution of the contention, but believes, in my view wrongly, that only a question of fact is involved, and that that separate question should be fixed for hearing on the current dates allocated for the s 34 conference.

1. I believe that the agreement on separation of the question is sensible, and should be approved, as satisfying the test articulated by Biscoe J in Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81. When it is to be listed, and before whom, are matters for the Registrar and the Chief Judge, and the parties should return to the Registrar forthwith to arrange a date for it to be heard, if possible prior to 7 November.

1. I will make Order 1 with the addition of the words "if possible". The costs of the NOM should be the parties' costs in the cause, given that they basically agree on the order, but disagree on the date, and that the determination of the question may bring the proceedings as a whole to an end.

1. My orders are:

(1)   That contention 1 of the respondent's Statement of Facts and Contentions be listed for determination as a preliminary point of law in advance of the section 34 conciliation conference listed on 7 and 8 November 2012, if possible.

(2)   Costs to be costs in the cause.

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