Australian Nursing Home Foundation Limited v Ku-ring-gai Council

[2018] NSWLEC 131

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2018] NSWLEC 131
Hearing dates:	27 August 2018
Date of orders:	27 August 2018
Decision date:	27 August 2018
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	See orders at [80]
Catchwords:	CIVIL PROCEDURE: application for determination of separate questions of law – question not necessarily dispositive of matter – delay in applying for separate question – matter already set down for hearing on all legal and merit matters – determination of separate question would require vacation of hearing dates or expedition of the determination of separate question – no application for expedition of the determination of separate question – material prejudice to party if hearing dates vacated – separate question seeking to directly challenge earlier decision of court by judge in circumstances where no appeal was sought in respect of the earlier decision – application for separate question refused – application to vacate hearing dates refused – Class 1 appeal to be heard and determined by a judge given the direct challenge to an early decision of a judge of the Court.
Legislation Cited:	Environment Protection and Biodiversity Conservation Act 1999 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Rules 2007, r 3.7(2) State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 Threatened Species Conservation Act 1995 Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited:	820 Cawdor Road Pty Ltd v Wollondilly Shire Council (2013) 195 LGERA 170; [2013] NSWLEC 8 Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 Luxcon Developments No 6 Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 43 M H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153 Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 3) [2016] NSWLEC 114 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4) [2016] NSWLEC 126 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Whittaker v Northern Beaches Council (No 2) [2018] NSWLEC 94
Category:	Procedural and other rulings
Parties:	Australian Nursing Home Foundation Limited (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr Scott Nash (Applicant) Mr Tom Howard SC (Respondent)   Solicitors: Shaw Reynolds Lawyers (Applicant) Thomson Geer Lawyers (Respondent)
File Number(s):	2018/14219
Publication restriction:	N/A

EX TEMPORE Judgment

The Council Seeks the Determination of a Separate Question of Law

1. By notice of motion dated 15 August 2018 the respondent to Class 1 proceedings, Ku-ring-gai Council (“the Council”), seeks the determination of a separate question before a judge prior to the hearing of the substantive merit matter in the Class 1 appeal.

2. The Council seeks that the current hearing dates of 30 October to 2 November 2018 be vacated and “for the matter to be referred back to the Registry for dates to be allocated for the merit hearing before a judge”.

3. No order for the expedition of the hearing and determination of the separate question has been sought by the Council.

4. All orders sought are opposed by the applicant to the Class 1 appeal, Australian Nursing Home Foundation Limited (“ANHF”).

5. The Class 1 merits appeal by ANHF is against the refusal of DA 0418/15 by the Council for the demolition of existing structures on the land at 25, 25A and 27 Bushlands Avenue, Gordon, the consolidation of those lots and the erection of an 84 bedroom Residential Aged Facility with one level of basement parking, under the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (“the SEPP”) (“the proposed development”).

The Separate Question

6. Initially, the separate questions to be determined were stated to be Contentions 1 and 2 of the Statement of Facts and Contentions (“SOFAC”) filed by the Council on 20 February 2018:

1. The proposal is prohibited development as it does not comply with clause 15 ‘What Chapter does’ SEPP (Housing for Seniors of People with a Disability) 2004.

Particulars

The subject site is zoned R2 Low Density Residential under the provisions of Ku-ring-gai LEP 2015. For the purposes of clause 1.4 ‘Definitions’ of the LEP the proposal is defined as a residential care facility which is a prohibited use in the R2 Low Density Residential zone. Clause 15 of the SEPP allows development on land zoned primarily for urban purposes for the purpose of any form of seniors housing if the development is carried out in accordance with the SEPP. The subject site is land zoned primarily for urban purposes.

a)   The proposal does not comply with the location and access to facilities requirements in clause 26 of SEPP (Housing for Seniors of People with a Disability) 2004.

b)   The site does not comply with clause 26 (1) of the SEPP as:

I.   the site is more than 500m from the Gordon town centre;

II.   the access path to the town centre has gradients as steep as 1:6.4 over a distance of 48m (a maximum gradient of 1:8 is permitted for a distance of no more than 1.5m).

c)   The site does not comply with clause 26 (2) (a) as the nearest bus stop is approximately 670m from the site at No. 786 Pacific Highway Gordon.

d)   The SEPP does not contain provisions to vary a development standard using Clause 4.6 of the Standard Instrument or SEPP 1 and without any ability to vary a development standard any contravention of a development standard must result in the application being refused.

Alternatively,

2. The proposal does not comply with the location and access to facilities requirements in clause 26 of SEPP (Housing for Seniors of People with a Disability) 2004 and the variation to these requirements does not satisfy the provisions of clause 4.6 ‘Exceptions to development standards’ of Ku-ring-gai Local Environmental Plan 2015.

Particulars

a)   The subject site is not located within 400m of the services specified in clause 26 (1).

b)   The subject site is not located within 400m of a public transport service that would provide residents access to the services specified in clause 26 (1).

c)   The variation to the development standard is not available or if determined by the Court to be available:

a.   Does not satisfy clause 4.6 (3) (a) as compliance with the development is not unreasonable or unnecessary in the circumstances of the case.

b.   The variation to the development standard does not satisfy clause 4.6 (3) (b) as the environmental planning grounds provided by the applicant to justify contravening the development standard are not sufficient.

d)   The variation to the development standard does not satisfy clause 4.6 (4) (a) (ii) as the development will not be in the public interest as it is not consistent with the objective of the development standard.

7. At the hearing, the Council properly conceded that only Contention 1 was amenable to be put forward as a separate question.

8. After some discussion, Contention 1 was reformulated and substituted (with the consent of ANHF) for those originally referred to in the notice of motion. The separate question is therefore as follows:

Whether the proposed development is prohibited under cl 2.3 of the Ku-ring-gai Local Environmental Plan 2015 (see the zoning table, Zone 2) and cl 26 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

9. In short, the question is whether, properly construed, cl 26 of the SEPP, when read with cl 15 of that instrument, is able to be varied by the provisions of the LEP.

10. The Council submits that it is not and that based on facts that are uncontentious (see below), as a matter of law the development is prohibited.

11. ANHF disputes this, and submits that a relevantly identical legal issue was effectively determined in its favour by Moore J in the recent decision of Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 (at [82]-[95]) (handed down on 21 May 2018).

12. Although on 5 June 2018 the Council filed a Notice of Intention to Appeal in Pathways to challenge this legal point, the Council has decided for various forensic reasons not to pursue the appeal and the Notice has since lapsed.

13. Instead, the Council in effect seeks, somewhat unusually, through the vehicle of a determination of a separate question, to challenge the correctness of the Pathways decision.

The Proposed Development

14. For the purposes of this application the parties agreed on the facts below.

15. The development proposal is described in detail in the SOFAC annexed (Annexure C) to the affidavit of Ms Robecca Cunningham affirmed 15 August 2018. In summary, the proposal involves the:

1. demolition of all existing structures except the heritage listed dwelling house at 25 Bushlands Avenue. The structures proposed to be demolished include the single storey brick house and swimming pool at 25A Bushlands Avenue, the two storey brick house, detached garage, swimming pool and shed at 27 Bushlands Avenue, and the swimming pool, tennis court, detached brick garage and carport associated with 25 Bushlands Avenue;

2. consolidation of the allotments known as Lots 2, 3 and 4 in DP 578395; and

3. construction of a residential aged care facility to accommodate a maximum of 84 residents in a mix of single and double rooms.

16. The maximum number of staff proposed to be present on the premises at any time will be 25.

17. The site has a total area of approximately 7,406m². It is rectangular in shape with a frontage of 70.7m to Bushlands Avenue and a maximum depth of 104.83m. The site contains three allotments, three dwelling-houses, three swimming pools, one tennis court and ancillary structures.

18. The existing dwelling-houses on the site include the two storey heritage item known as 25 Bushlands Avenue (Birralee), a single storey brick dwelling house on a battleaxe allotment known as 25A Bushlands Avenue and a two storey brick dwelling house known as 27 Bushlands Avenue.

19. Birralee is identified as having local heritage significance, being listed in Sch 5 of the Ku-ring-gai Local Environmental Plan 2015 (“LEP”). The heritage significance is described in the SOFAC (at [12]).

20. The rear half and central parts of the site contain a patch of Sydney Turpentine Ironbark Forest (“STIF”) vegetation, which is listed as an Endangered Ecological Community under the Threatened Species Conservation Act 1995 and a Critically Endangered Ecological Community under the Environment Protection and Biodiversity Conservation Act 1999. The patch of STIF vegetation is also identified as approximately 3,600m2 of biodiversity significant land under the LEP.

21. Critically for present purposes, the site is located to the south-west of the Gordon town centre on a street that is predominantly zoned R2 Low Density Residential.

22. The nearest bus stop is located at the frontage of 786 Pacific Highway Gordon, which is within 670m walking distance from the site.

23. The Gordon town centre, which is generally represented by B2 Local Centre zoned land north of St Johns Avenue, is within 530m walking distance from the site.

24. The site is within 710m walking distance from the Gordon railway station.

25. Nearby recreational facilities include the Gordon Golf Club to the west of the site at 4 Lynn Ridge Avenue and the Gordon Bowling Club to the south of the site at 4 Pennant Avenue. Bushlands Avenue has a sealed width of approximately 7m, with kerb and gutter on the northern side of the road and a grass verge with no kerb and gutter on the southern side of the road. A footpath is located on the northern side of the road.

26. On these facts, it would appear that the proposed development cannot satisfy the requirements in cl 26 of the SEPP.

27. Relevantly, cl 15 of the SEPP provides that:

15   What Chapter does

This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy:

(a)     development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and

(b)     development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.

28. Clause 26 of the SEPP is in the following terms:

26   Location and access to facilities

(1)  A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:

(a)     shops, bank service providers and other retail and commercial services that residents may reasonably require, and

(b)     community services and recreation facilities, and

(c)     the practice of a general medical practitioner.

(2)  Access complies with this clause if:

(a)     the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable:

(i)     a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time,

(ii)     a gradient of no more than 1:10 for a maximum length of 5 metres at a time,

(iii)     a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or

(b)     in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area)—there is a public transport service available to the residents who will occupy the proposed development:

(i)     that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and

(ii)     that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and

(iii)     that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive),

and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or

(c)    in the case of a proposed development on land in a local government area that is not within the Greater Sydney (Greater Capital City Statistical Area)—there is a transport service available to the residents who will occupy the proposed development:

(i)     that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and

(ii)     that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and

(iii)     that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive),

and the gradient along the pathway from the site to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) complies with subclause (3).

Note. Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services.

(3)    For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14, although the following gradients along the pathway are also acceptable:

(i)     a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time,

(ii)     a gradient of no more than 1:10 for a maximum length of 5 metres at a time,

(iii)     a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time.

(4)     For the purposes of subclause (2):

(a)     a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and

(b)     distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway.

(5)  In this clause:

bank service provider means any bank, credit union or building society or any post office that provides banking services.

Zoning under the LEP

29. The site is located on land zoned R2 Low Density Residential under the LEP.

30. Clause 2.3(1) of the LEP provides:

2.3   Zone objectives and Land Use Table

(1) The Land Use Table at the end of this Part specifies for each zone:

(a)    the objectives for development, and

(b)       development that may be carried out without development    consent, and

(c)       development that may be carried out only with development    consent, and

(d)       development that is prohibited.

31. The Land Use Table which forms part of Pt 2 of the LEP; and to which cl 2.3 refers, provides the following with respect to development in the R2 Zone:

Zone R2   Low Density Residential

1   Objectives of zone

•     To provide for the housing needs of the community within a low density residential environment.

•     To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•     To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

2   Permitted without consent

Home occupations

3   Permitted with consent

Bed and breakfast accommodation; Boarding houses; Building identification signs, Business identification signs; Centre-based child care facilities; Community facilities; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Neighbourhood shops; Places of public worship; Recreation areas; Respite day care centres; Roads; Secondary dwellings

4   Prohibited

Any development not specified in item 2 or 3

32. Development for the purposes of an aged care facility comprises development for the purposes of “seniors housing”, as that term is defined in the LEP, being a land use that is not specified in Items 2 or 3 of the Land Use Table in the LEP and thus falling within Item 4 of the Land Use Table.

33. Accordingly, the Council contends that the proposed development is prohibited from being carried out under the LEP.

Procedural History of the Matter

34. The procedural history of this matter is unnecessarily complex. Suffice it to say, based on the material contained in the affidavit of Mr Tidemann, the affidavit of Ms Cunningham, the Agreed Statement of Facts, and statements made from the bar table, that at the first directions hearing on 27 February 2017, the matter was set down for a final hearing commencing on 30 October 2018 for four days at the same time as it was allocated a date for a s 34 conciliation conference.

34. Following the termination of the s 34 conciliation conference, the matter was provisionally set down by the Registrar on 3 and 4 September 2018, at the request of the parties, for determination of a question of law before a judge, with the dates to be confirmed at the next directions hearing before the Court on 10 August 2018. No formal application was made for the determination of a separate legal question before the Registrar.

35. It is not entirely clear, but it seems that the setting down of the matter on 3 and 4 September 2018 was taken by ANHF to mean that the Council would not be pursuing any merit issues and would be relying on legal issues alone to defend the Class 1 appeal.

36. Meanwhile the Class 1 merit appeal dates remained alive.

37. Following the termination of the s 34 conference, ANHF prepared amended plans and documents on the basis of what occurred at the conference.

38. On 9 August 2018 the Council’s solicitors notified ANHF that it wished to call different expert evidence in relation to various heritage and town planning issues. ANHF understood this to mean that, contrary to the Council’s earlier position, both merit and legal issues were once again going to be agitated by the Council at the appeal.

39. On 10 August 2018 the parties appeared before the Registrar and the Council confirmed that the merit issues remained.

40. On this basis, and over the opposition of the Council, including the fact that counsel for the Council was not available on 30 October 2018, an application was made by ANHF to vacate the hearing dates on 3 and 4 September 2018. After hearing argument from both parties, the dates were vacated by the Registrar on that day. The Council has not sought to appeal the Registrar’s order.

41. The unchallenged evidence of Mr Craig Tidemann affirmed in an affidavit on 23 August 2018, and the uncontested evidence of Ms Joanna Ling affirmed in an affidavit on 19 February 2018 (both filed on behalf of ANHF), detail the basis of the necessary Commonwealth Aged Care approvals and indicate that if the Class 1 appeal does not proceed on 30 October 2018, ANHF is under very real time constraints to provide beds allocated to it by the Commonwealth under the relevant place allocations, or it may lose its allocations entirely. Therefore, any delay occasioned by the vacation of the Class 1 appeal hearing dates and the determination of a separate question will jeopardise the time available to ANHF to take up its allocated bed licences. This gives rise to real prejudice to ANHF if the Council’s notice of motion is acceded to by the Court.

Applicable Legal Principles for the Granting of a Separate Question for Determination

43. The power to make orders for a question to be decided separately is contained in r 28.2 of the Uniform Civil Procedure Rules 2005 (“UCPR”), which provides that:

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

44. The legal principles applicable to the exercise of the Court’s discretion to order the determination of a separate question were summarised by Robson J in Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 (referring to the judgment of Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council (2013) 195 LGERA 170; [2013] NSWLEC 8 at [10]):

1.    Generally speaking, all issues should be tried and decided at the same time.

2.    It is for the party seeking the order to show to the Court that the separate decision of a question is appropriate.

3. Separate decision of a question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. This gives effect to s 56 of the Civil Procedure Act. Thus, the procedure needs to be fair and involve real savings in time and cost.

4.    Separate decision of a question may be appropriate where it is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end.

5.    In particular circumstances separate decision of a question may be appropriate even if it will not bring the proceedings to an end. This may occur where the decision will substantially narrow the field of controversy by obviating unnecessary and expensive hearing of other questions or where the decision carries with it a strong prospect that the parties will then be able to agree upon resolution of the proceedings. But on such occasions care must be exercised lest fragmentation of the proceedings (particularly where the exercise of appeal rights is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid.

6.    Separate decision of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to remaining issues in the proceedings (and thus require the remaining issues to be dealt with by another judge).

7.    Where the question sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and all the facts upon which that question has to be considered should be agreed or clearly ascertainable.

8.    Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely.

45. Those principles have been considered by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 (at [87-99]) and in this Court in Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172, Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 (at [14]) and Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4) [2016] NSWLEC 126. More recently, see Luxcon Developments No 6 Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 43 (at [21]-[22]), and most recently, see Whittaker v Northern Beaches Council (No 2) [2018] NSWLEC 94 (at [8]-[9]) and M H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101 (at [14]).

46. In Royal Motor Yacht Club (No 4), the Court considered the time and expense involved in separating a question from other relevant issues (at [11]-[12]):

11.    In addition, regard must be had to the observations of Ward JA in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (at [91]), quoted above at [6]. As McFarlane JA in the same case opined (at [10]):

10   At the hearing before this Court, it was common ground between the parties that strong reasons, such as an anticipated significant saving in time and expense in relation to the final hearing, needed to be shown to justify departure from the usual rule that all issues in a proceeding are to be determined at the one time (see for example Tallglen Pty Ltd v TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 - 2).

12.    More recently, Basten JA in Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 observed as follows (at [57]):

The convenience of separating that question from issues relating to relief is far from clear. Had the relatively confined issues raised by the proceedings in the Land and Environment Court been determined as whole, much time and energy would have been saved and the matter could have been finally disposed of by this Court on appeal…

47. In this regard, the cautionary comments of Young J in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 should be noted (at [111]–[114]):

111 My comments fall into two areas:

(A)    The practice of isolating separate questions in the Land and Environment Court; and

(B)    What is a development standard as opposed to an absolute prohibition on development.

112       As to the first matter, almost all superior courts are enabled to isolate separate questions of law and fact for decision prior to (or even after) trial of the proceedings generally. However, that power needs to be exercised with care. Very often isolating a separate set of questions actually increases the costs. There are several reasons for this. First, people get lulled into a false sense of security that they are only looking at the cost of a short hearing rather than a three day final hearing. However, by the time one takes into account the extra work considering the impact the answers have on the proceedings, engrossing and serving orders, applications for leave to appeal and the appeal itself, the bill for legal costs may be higher. Secondly, the parties cease to focus on the main issues, and, more importantly, resolving those main issues, whilst their lawyers have an intellectually satisfying debate on some arcane point.

113      The received law is that separate questions should only be posed when there is a critical matter which if dealt with in a preliminary hearing will far more likely than not be convenient and save significant expense.

114       The question as to whether there should be separate questions is, of course, a matter of discretion for each judge. However, the reported cases to which we were referred during the hearing disclose a general pattern of too free a use of the separate question procedure.

48. A similar sentiment was expressed by Bathurst CJ (with whom Meagher and Ward JJA agreed) in Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 (at [18]):

18. The separate question was ordered under r 28.2 of the UCPR. The circumstances in which such an order should be made are well established. It is appropriate to exercise the power under the rule where there is a preliminary question of fact or law critical to the disposition of the proceedings, in the sense that if it is decided in one way it will necessarily dispose of them: Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93 at 98. In CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601, it was stated by Kirby P at 606 that the procedure should not be adopted in respect of matters not ripe for determination. In that case it was stated by Kirby P at 606, that a matter is ripe for determination were it is a central issue between the parties and the resolution of the issue will either obviate the necessity for litigation altogether, or substantially narrow the field of controversy.

49. And in Allandale, Ward JA opined as follows (at [91]):

91. In various authorities, caution has been advocated in the exercise of such a power (such as Perre v Appand Pty Ltd (1999) 198 CLR 180 at [436] per Callinan J; Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at [24] per Santow J, as his Honour then was; Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [112] - [113] per Young CJ in Eq, as his Honour then was). In Idoport, Einstein J noted the reason for such caution in the following passage:

The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings [his Honour there citing Tallglen v Pay TV Holdings Pty Limited; Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J) and Century Medical v THLD [2000] NSWSC 5 (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J)]. (my emphasis)

Submissions of the Council

50. The Council’s position is that the Court should order the determination of the separate question above for three reasons. First, if the separate question is determined in the affirmative this will be dispositive of the appeal. This is because the land is zoned R2 Low Density Residential under the LEP and development for the purposes of a residential care facility is prohibited under that zoning. The only alternative environmental planning instrument which might make the development permissible is the SEPP. If ANHF cannot properly rely upon the SEPP because it cannot satisfy the matters in cl 26, then the development is prohibited.

51. The Council did not resile from the proposition that resolution of the separate question would require a legal finding contrary to the recent decision of Moore J in Pathways (in particular at [68]-[91] and [94]). As such it was submitted that it was appropriate that the separate question of law be determined by a judge of this Court.

52. Second, it would be quicker and cheaper to have the separate question determined because if the question is answered in the affirmative, it will avoid the need for a hearing on merit issues.

53. The determination of the merit issues in the proceedings will require expert evidence in the disciplines of town planning; heritage; ecology; and landscaping. At present, experts in each of the above disciplines are to joint conference and prepare joint expert reports by 9 October 2018. Taking into account the scope of expert evidence, the matter has been set down for hearing for four days commencing on 30 October 2018.

54. It would therefore be an inefficient use of the Court’s and parties’ resources for the matter to proceed with the preparation of joint expert reports and a four day hearing in circumstances where the merit issues may not even arise for consideration if the Council is correct in its construction of the separate question. Accordingly, there is a potential for real savings in costs and time associated with the determination of the separate question.

55. Third, the necessary factual foundation for the determination of the separate questions are readily identifiable, simple, unlikely to be contentious, and can be the subject of an agreed statement of facts between the parties as they were for the purposes of the motion.

Summary of ANHF’s Arguments

56. According to ANHF, the determination of the separate questions will not be dispositive of the proceedings nor will it result in the just, quick and cheap resolution of the proceedings. Further, the Court would not in its discretion make an order to vacate the dates having regard to the history of the proceedings and the conduct of the Council.

57. First, cl 26 of the SEPP requires that certain services and facilities be accessible to residents. Essentially cl 26 requires the services be located not more than 400 metres from the site or a bus stop serviced by a regular bus service that will take residents to and from the services and that the path of travel to the services or bus stop be accessible.

58. ANHF submits that cl 26 is satisfied by the provision of the services on the site (see Contention 2 of the ANHF’s Statement of Facts and Contentions in Reply). The determination of this issue will require lay evidence from the operator of the proposed development and expert evidence from the town planners. It may also require a view of other facilities operated by ANHF.

59. In this regard, ANHF relied on a document prepared by Evolution Planning dated 13 January 2017 (at pp 1, 3-7) that purported to demonstrate compliance with cl 26 of the SEPP pertaining to location and access to facilities “from various providers who have all confirmed their availability to provide services on site.”

60. ANHF also relied upon the decision by Robson J in Principal Healthcare Finance Pty Ltd v Ryde City Council (2016) 222 LGERA 212; [2016] NSWLEC 153 (at [77] and [78]) in support of its contention. In that decision, the Court held that cl 26 of the SEPP is not a prohibition and was amenable to cl 4.6 of the relevant Ryde Local Environmental Plan 2014.

61. If ANHF is correct, albeit as a matter of construction of the relevant instrument and having regard to the evidence, then the proposed development is not prohibited.

62. Second, it follows from above that the separate hearing of the question of law will not result in any substantial saving in time or costs but is likely to result in an increase in time and costs. This is because regardless of the determination of the question, the Court will still have to determine the fundamental issue as to whether the services are to be provided on site. A separate merit hearing and supporting evidence would still be required to determine if services are available on site.

63. There are also separate merit contentions that need to be determined being heritage contentions (Contentions 2, 4(a) and 5) and town planning contentions (Contentions 4(b) and (6)) as well as insufficient information contentions in relation to landscaping and vegetation management (Contentions B2(1) and (2)).

64. Mr Tidemann’s evidence is that the saving in hearing time in separating the proposed legal question is likely to be limited. Mr Tidemann also provides evidence that the separation of the legal question from the remaining facts and contentions is likely to increase the time for the hearing as there is an overlap between what will be covered on the separate question and what will need to be covered on a hearing of the merits of the proposal.

65. Third, the general rule is that all issues should be tried together. This is reinforced by the Court’s Practice Note Class 1 Development Appeals made on 22 March 2017. Consistent with [77] of the Practice Note, preliminary questions should be raised at the first directions hearing. The Council failed to do so.

66. Fourth, ANHF submitted that the Court should not exercise its discretion to vacate the Class 1 appeal hearing dates. The hearing dates were listed by consent of the parties on 20 February 2018. Those dates have never been vacated and to do so now would result in prejudice to ANHF in the manner described above.

67. Fifth, at the time of listing neither party sought determination of a separate question or sought that the proceedings be listed before a judge. Furthermore, the Council delayed until recently its application for the determination of a separate question.

68. Sixth, the Council has already applied to vacate the dates and have the matter listed before a judge. There were two grounds relied upon by the Council. The first was that the contentions raise legal issues and should be determined by a judge. The second was that the Council’s counsel was not available on the allocated hearing dates of 30 October to 2 November 2018.

69. Both arguments were ventilated before the Registrar on 10 August 2018 and were rejected by her. No appeal has been filed against the Registrar’s orders.

The Application for the Determination of a Separate Question Must be Refused

70. I agree with ANHF that the application for determination of a separate question must be refused and I do so primarily for the reasons given by ANHF set out above, which I accept.

71. Having regard to the legal principles set out above, it is more than arguable that the determination of the separate question will not be dispositive of the entire proceedings, even if answered in the Council’s favour, if ANHF’s construction of cl 26 of the SEPP is correct that compliance can in any event be effected by ANHF. It follows that, I remain unconvinced that a substantial savings in time or costs would result from the determination of the separate question. To the contrary, I foresee a multiplicity of litigation that will only serve to increase the time and cost required to determine the Class 1 appeal.

72. No application for expedition has been made by the Council, so there is no guarantee in any event that the separate question will be determined prior to the Class 1 appeal commencing.

73. I find, moreover, that the determination of a separate question has the capacity to cause ANHF real prejudice in potentially lost bed allocations if it results in the vacation of the hearing dates commencing on 30 October 2018.

The Class 1 Appeal Should be Determined by a Judge

74. It follows that the notice of motion must be dismissed. However, because the Council will, as part of its Class 1 appeal seek to directly challenge the correctness of an earlier decision of a judge of this Court, it is appropriate in all the circumstances that the Class 1 appeal be heard before a judge of this Court, and not a commissioner, as would normally be the case.

75. As a matter of comity decisions of this Court are followed by the judges and commissioners of the Court unless plainly wrong. This is the threshold that the Council will have to overcome. Thus in order to avoid any possible embarrassment (in the legal sense) and the further expense incurred by the parties of a possible s 56A appeal prior to any potential appeal to the Court of Appeal by the losing party, it is preferable that the matter be listed for determination before a judge of the Court. To do so is, in my view, in conformity with the overriding purpose contained in s 56 of the Civil Procedure Act 2005.

Each Party to Pay Their Own Costs of the Motion

76. This being a notice of motion in Class 1 of the Court’s jurisdiction, each party ordinarily pays their own costs, unless it is fair and reasonable to otherwise order in the circumstances (r 3.7(2) of the Land and Environment Court Rules 2007).

77. However, ANHF have sought their costs of the motion on the basis that the Council had conducted itself “unreasonably” (see r 3.7(3)(d), among other non-exhaustive considerations) by failing to bring the application earlier and because the prospects of success of the motion were limited.

78. The Council refuted any suggestion of unreasonable conduct on its behalf by arguing that the contentions had always raised a point of law, that had given rise to the issue being listed before a judge on 3-4 September 2018. It was ANHF, with very little notice to the Council, who had applied for the vacation of those dates over its opposition. Furthermore, the Council submitted that although it had been unsuccessful on the notice of motion, the application was nevertheless of utility insofar as it had secured the determination of the matter before a judge for the reasons set out in this judgment.

79. While the Council has acted somewhat imperfectly, it has not, in my view, acted sufficiently unreasonably that a costs order against it is warranted (cf Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 3) [2016] NSWLEC 114 at [14]-[23]). I therefore decline to make the costs order sought.

Orders

80. For the reasons given above, the orders of the Court are as follows:

1. the Council’s notice of motion is dismissed;

2. the exhibits are to be returned but kept on the Court file until the determination of the Class 1 appeal; and

3. the Class 1 appeal commencing on 30 October 2018 for four days is to be heard and determined by a judge of the Court.

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Amendments

30 August 2018 - Edit in coversheet - Legal representatives' names corrected

Decision last updated: 30 August 2018