EPS Constructions Pty Ltd v Holroyd City Council - [2013] NSWLEC 224

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 94
Category: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWLEC 224
Decision Date: 20 December 2013

CaseChat Overview and Summary

In the case of EPS Constructions Pty Ltd v Holroyd City Council, the applicant, EPS Constructions, sought to develop a site in accordance with a proposed development application. The respondent, Holroyd City Council, contested the application, leading to a dispute regarding the interpretation of zoning laws and environmental planning policies. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the applicant's development application constituted "prohibited development" under section 4(1) of the Environmental Planning and Assessment Act 1979 and, if not, whether the State Environmental Planning Policy (Affordable Rental Housing) 2009 applied to the proposed development. The court had to determine these issues to ascertain the appropriate course of action regarding the development application.

The court found that the questions regarding the nature of the development application needed to be addressed separately and in advance of any other proceedings. The judge ordered that an agreed statement of facts and submissions be filed and served by a specific date. The parties were also required to arrange a hearing date within a defined period. The court's decision was to ensure that the preliminary questions were resolved before proceeding with any further aspects of the case.

The court's final orders included directing that the specified questions be determined separately and in advance, requiring the parties to file an agreed statement of facts and submissions, and setting a timeframe for scheduling a hearing date. This ruling aimed to streamline the legal process and ensure that the substantive issues could be addressed effectively once the preliminary questions were resolved.

Orders

Orders of the court

(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.

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 94
Category:	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