Commitment Pty Ltd v Georges River Council

[2022] NSWLEC 87

Land and Environment Court

New South Wales

Medium Neutral Citation:

Commitment Pty Ltd v Georges River Council [2022] NSWLEC 87

Hearing dates:

13 July 2022

Date of orders:

13 July 2022

Decision date:

15 July 2022

Jurisdiction:

Class 1

Before:

Pepper J

Decision:

Separate question ordered and consequential timetabling directions made. See orders at [62].

Catchwords:

SEPARATE QUESTION: whether a question should be determined separately – applicable legal principles – question if resolved in favour of the Council is entirely dispositive of the proceedings – substantial savings in terms of expert evidence and costs if separate question ordered – utility of s 34 conciliation eroded if separate question not ordered – application granted.

Legislation Cited:

Civil Procedure Act 2005, s 56

Environmental Planning and Assessment Regulation 2000, cll 50(1), 50(9)

Georges River Development Control Plan 2021, cll 1.2, 1.6, 1.7, 1.8, 3.13

Georges River Local Environmental Plan 2021, cll 1.1AA, 1.8, 1.8A, 6.10, 6.12

Hurstville Development Control Plan No 1

Hurstville Local Environmental Plan 2012

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

CK Design Pty Ltd v Penrith City Council [2022] NSWLEC 82

Johnson Property Group Pty Limited v Lake Macquarie City Council [2020] NSWLEC 4

Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50

Category:

Procedural rulings

Parties:

Commitment Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Guy (Applicant)
K Mezinec (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/44228

Publication restriction:

Nil

Judgment

Commitment Seeks an Order for a Separate Question

1. By amended notice of motion filed at the hearing on 13 July 2022, the applicant in Class 1 proceedings, Commitment Pty Ltd (“Commitment”), seeks an order that the following four part separate question be heard and determined separately (“separate question”):

1. whether on the true construction of cl 1.8A of the Georges River Local Environmental Plan 2021 (“the GRLEP”), the development application was made before the commencement of the GRLEP;

2. if the answer to question (a) is “yes”, whether the GRLEP applies to the subject development application;

3. whether, on the true construction of cl 1.7 of the Georges River Development Control Plan 2021 (“the GRDCP”), the development application was made before the commencement of the GRDCP; and

4. if the answer to question (c) is “yes”, whether the GRDCP applies to the subject development application.

2. The application is supported by the respondent, the Georges River Council (“the Council”).

3. In support of the motion, the parties relied upon a further agreed statement of facts filed in Court on 13 July 2022 and the statement of Lindsay Fletcher, Commitment’s consultant town planner, dated 5 July 2022 (“the Lindsay statement”).

4. For the reasons explained below, the hearing of the separate question should be ordered.