Breust v Wollondilly Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Breust v Wollondilly Shire Council [2014] NSWLEC 24
Hearing dates:	19 March 2014
Decision date:	19 March 2014
Jurisdiction:	Class 1
Before:	Craig J
Decision:	Orders as set out at [15]
Catchwords:	PRACTICE AND PROCEDURE - whether the determination of a separate and preliminary question should be ordered in Class 1 proceedings - r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) - question as to permissibility of proposed development - facts agreed for purpose of determining separate question
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Wollondilly Local Environmental Plan 2011
Cases Cited:	Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 Jenkins v Clarence Valley Council [2013] NSWLEC 161
Category:	Procedural and other rulings
Parties:	Mark Breust (First applicant) Megan Breust (Second applicant) Wollondilly Shire Council (Respondent)
Representation:	Self represented (Applicants) J Hones (solicitor) (Respondent) Self represented (Applicants) Hones La Hood (Respondent)
File Number(s):	10068 of 2014

EX TEMPORE Judgment

1. By a notice of motion filed on 12 March 2014 Wollondilly Shire Council (the Council) seeks an order pursuant to Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination of a separate question arising from the contentions that the Council has filed in these proceedings. The critical contention requires a determination as to whether the development proposed is permissible or prohibited by the provisions of the relevant planning instrument.

1. Although the question framed by the Council in its present notice of motion requires revision in order to isolate the critical matters to be determined, as it raises the question of permissibility, in the circumstances of this case that question ought to be determined at a preliminary and separate hearing. That conclusion requires explanation.

1. The development application that was lodged by Mr and Mrs Breust in June 2012 seeks consent to use an existing building on the rural/residential property owned by them at Orangeville, located in the Wollondilly local government area. That building was erected as a rural barn. However, as a development consent granted by the Council allowed, the barn was able to be used as a temporary dwelling while a new dwelling was constructed on the land.

1. A condition of that development consent required that upon completion of the new dwelling, facilities included or installed in the barn, enabling it to be used as a residence, were to be removed. Those facilities that expressly required removal are the kitchen sink, an oven and a laundry sink. Apparently a bathroom located in the barn was provided conformably with the development consent pursuant to which the barn was originally constructed and so is not required to be removed. The new dwelling contemplated by the consent allowing temporary accommodation in the barn has been completed and is occupied by Mr and Mrs Breust.

1. The present development application seeks consent to "continue the use of the existing barn" as…