EPS Constructions Pty Ltd v Holroyd City Council
[2013] NSWLEC 224
•20 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: EPS Constructions Pty Ltd v Holroyd City Council [2013] NSWLEC 224 Hearing dates: 20 December 2013 Decision date: 20 December 2013 Jurisdiction: Class 1 Before: Biscoe J Decision: (1) Order that the following questions be determined separately and in advance of any other questions in the proceedings:
(i) Whether the applicant's development application is an application for "prohibited development" within the meaning of s 4(1) of the Environmental Planning and Assessment Act 1979 by reason of cl 9 of the Holroyd Local Environmental Plan 1991.
(ii) If the proposed development is not prohibited, whether the applicant's development application is an application to which cl 10(1) of State Environmental Planning Policy (Affordable Rental Housing) 2009 applies.
(2) The parties are to file and serve an agreed statement of facts and their submissions by 7 February 2014.
(3) The parties are to proceed forthwith to the Registry to obtain a hearing date of one day not earlier than 14 February 2014 and not later than 1 March 2014.
Catchwords: SEPARATE QUESTION - principles to guide exercise of discretion whether to order determination of separate question - whether mixed used development prohibited under Holroyd LEP 1991 or permissible as a residential flat building under Affordable Rental Housing SEPP 2009. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4(1), 82A
Holroyd Local Environmental Plan 1991 cl 9
State Environmental Planning Policy (Affordable Rental Housing) 2009 cl 10(1)Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8, (2013) 195 LGERA 170
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, (2013) 195 LGERA 182
Boensch v Parramatta City Council [2013] NSWLEC 94Category: Separate question Parties: EPS Constructions Pty Ltd (Applicant)
Holroyd City Council (Respondent)Representation: COUNSEL:
A Gough, solicitor (Applicant)
J P Merlino, solicitor (Respondent)
SOLICITORS:
Storey & Gough (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 10887/13
eX TEMPORE Judgment
This is a motion by the respondent Holroyd City Council for a consent order that the following questions be heard and determined separately and in advance of any other issue in this development appeal in Class 1 of the Court's jurisdiction:
(i) Whether the applicant's development application is an application for "prohibited development" within the meaning of s 4(1) of the Environmental Planning and Assessment Act 1979 by reason of cl 9 of the Holroyd Local Environmental Plan 1991.
(ii) If the proposed development is not prohibited, whether the applicant's development application is an application to which cl 10(1) of State Environmental Planning Policy (Affordable Rental Housing) 2009 applies.
Principles to guide the Court when exercising its discretion as to whether to order a separate decision of a question were distilled by me in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8, (2013) 195 LGERA 170 at [10], as follows:
(a) Generally speaking, all issues should be tried and decided at the same time.
(b) It is for the party seeking the order to show to the Court that separate decision of a question is appropriate.
(c) 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.
(d) 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.
(e) 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.
(f) 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).
(g) 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.
(h) Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely.
These principles were revisited in Boensch v Parramatta City Council [2013] NSWLEC 94 where I also considered the discussion in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, (2013) 195 LGERA 182.
The proceedings are an appeal against the Council's refusal of a development application pursuant to an application for review under s 82A of the Environmental Planning and Assessment Act 1979. The development application proposes a part three storey / part four storey mixed use development above basement carparking at 1-7 Elvina Street, Greystanes.
The proposed development includes retail units on part of the ground floor and residential units elsewhere. The development application was made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP), on the basis that the development was for the purpose of a "residential flat building". Clause 10(1) provides:
10 Development to which Division applies
(1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:
(a) the development concerned is permitted with consent under another environmental planning instrument, and
(b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.
The Council contends the development application proposes a mixed use development, which is prohibited in the relevant zone under cl 9 of the Holroyd Local Environmental Plan 1991. The Council further contends that on the proper construction of cl 10(1) of the SEPP, the development does not propose development for the purpose of a "residential flat building" because that expression does not include a mixed use development. If either contention is upheld, the proceedings will not be able to proceed to a merit assessment of the development application. Considerable expense and time would thereby be avoided.
The parties are agreed that there should be a statement of agreed facts and that there will be no disputation of facts for the purposes of the determination of the separate questions.
In my opinion, in these circumstances there should be an order for separate determination of the proposed questions. I will also make directions for the progress of the matter in that respect.
The orders of the Court are as follows:
(1) Order that the following questions be determined separately and in advance of any other questions in the proceedings:
(i) Whether the applicant's development application is an application for "prohibited development" within the meaning of s 4(1) of the Environmental Planning and Assessment Act 1979 by reason of cl 9 of the Holroyd Local Environmental Plan 1991.
(ii) If the proposed development is not prohibited, whether the applicant's development application is an application to which cl 10(1) of State Environmental Planning Policy (Affordable Rental Housing) 2009 applies.
(2) The parties are to file and serve an agreed statement of facts and their submissions by 7 February 2014.
(3) The parties are to proceed forthwith to the Registry to obtain a hearing date of one day not earlier than 14 February 2014 and not later than 1 March 2014.
Decision last updated: 16 January 2014
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