Lotus Project Management Pty Ltd v Pittwater Council

Land and Environment Court

New South Wales

Medium Neutral Citation: Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 68
Hearing dates: 24 April 2015
Date of orders: 24 April 2015
Decision date: 24 April 2015
Jurisdiction: Class 1
Before: Biscoe J
Decision:
By consent, order that the following questions be determined separately and in advance of any other question in the proceedings:
a) Does cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development given that there is no “existing maximum floor space” specified in the Pittwater Local Environmental Plan 2014 (“PLEP”) or any other environmental planning instrument or development control plan that applies to the land the subject of the appeal.
b) Is the “Not more than 9 dwellings or less than 7 dwellings” specification for “Buffer area 3b” in the table to cl 6.1(3) of the PLEP a “development standard” to which cl 4.6 of the PLEP applies?
Catchwords: PRACTICE AND PROCEDURE – whether by consent separate questions should be ordered in Class 1 appeal against deemed refusal of a development consent.
Legislation Cited: Uniform Civil Procedure Rules 2005 r 28.2
State Environmental Planning Policy (Affordable Rental Housing) 2009 cl 13(2)
Pittwater Local Environmental Plan 2014 cll, 4.6, 6.1(3)
Cases Cited: Challenger Listed Investments v Valuer-General [2015] NSWLEC 7
Category: Procedural and other rulings
Parties: Lotus Project Management Pty Ltd (Applicant)
Pittwater Council (Respondent)
Representation:
COUNSEL:
N Hinks, solicitor (Applicant)
O Adams, solicitor (Respondent)
SOLICITORS:
Hones La Hood (Applicant)
King & Wood Mallesons (Respondent)

File Number(s): 10223/15

EX TEMPORE Judgment

This proceeding is an appeal in Class 1 of the Court’s jurisdiction against deemed refusal of a development application. The respondent Council moves pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 for an order, by consent, that that the following questions be determined separately and in advance of any other question in the proceedings:

Does cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development given that there is no “existing maximum floor space” specified in the Pittwater Local Environmental Plan 2014 (“PLEP”) or any other environmental planning instrument or development control plan that applies to the land the subject of the appeal.

Is the “Not more than 9 dwellings or less than 7 dwellings” specification for “Buffer area 3b” in the table to cl 6.1(3) of the PLEP a “development standard” to which cl 4.6 of the PLEP applies?

The parties agree that if each of the proposed separate questions is answered in the negative, then the Class 1 appeal is doomed and must be dismissed. If, however, either question is answered in the affirmative, then there will be merits issues (not yet precisely defined) to be determined.
In the circumstances, I consider it appropriate to make the proposed consent order set out above: see the principles summarised in Challenger Listed Investments v Valuer-General [2015] NSWLEC 7 at [14]. In addition, I will make directions for a hearing date for determination of the separate questions and in relation to pre-hearing matters in accordance with consent short minutes of order of today’s date that I sign and place with the papers.

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CaseChat Overview and Summary

Lotus Project Management Pty Ltd, the applicant, sought to appeal against the Pittwater Council, the respondent, regarding a planning decision. The crux of the matter involved the interpretation and application of certain clauses in the State Environmental Planning Policy (Affordable Rental Housing) 2009, and the Pittwater Local Environmental Plan 2014. Specifically, the applicant questioned whether the absence of a specified “existing maximum floor space” in the relevant planning documents affected the applicability of clause 13(2) of the State Policy, and whether the specification for “Buffer area 3b” in the Pittwater Local Environmental Plan constituted a “development standard” as defined in clause 4.6 of the same Plan.

The court was tasked with resolving two principal legal issues. Firstly, it needed to determine whether clause 13(2) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 applied to the proposed development in the absence of an explicitly stated “existing maximum floor space” in the Pittwater Local Environmental Plan 2014 or any other applicable environmental planning instrument. Secondly, the court had to ascertain whether the “Not more than 9 dwellings or less than 7 dwellings” specification for “Buffer area 3b” in the Pittwater Local Environmental Plan constituted a “development standard” subject to the provisions of clause 4.6.

In addressing the first issue, the court examined the relevant statutory provisions and planning documents to determine if the absence of a specified “existing maximum floor space” in the Pittwater Local Environmental Plan 2014 precluded the application of clause 13(2) of the State Environmental Planning Policy (Affordable Rental Housing) 2009. The court concluded that the absence of such a specification did not negate the applicability of the clause, as the primary focus was on the existence of a development proposal rather than the exact floor space. Regarding the second issue, the court found that the “Not more than 9 dwellings or less than 7 dwellings” specification for “Buffer area 3b” did not qualify as a “development standard” within the meaning of clause 4.6 of the Pittwater Local Environmental Plan.

The court's determinations led to an order that the specified questions be answered separately and prior to any other matters in the proceedings, providing clarity on the interpretation of the planning policies and their application to the proposed development.

Orders of the court

By consent, order that the following questions be determined separately and in advance of any other question in the proceedings:

a) Does cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development given that there is no “existing maximum floor space” specified in the Pittwater Local Environmental Plan 2014 (“PLEP”) or any other environmental planning instrument or development control plan that applies to the land the subject of the appeal.

b) Is the “Not more than 9 dwellings or less than 7 dwellings” specification for “Buffer area 3b” in the table to cl 6.1(3) of the PLEP a “development standard” to which cl 4.6 of the PLEP applies?

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 68
Hearing dates:	24 April 2015
Date of orders:	24 April 2015
Decision date:	24 April 2015
Jurisdiction:	Class 1
Before:	Biscoe J
Decision:	By consent, order that the following questions be determined separately and in advance of any other question in the proceedings: a) Does cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development given that there is no “existing maximum floor space” specified in the Pittwater Local Environmental Plan 2014 (“PLEP”) or any other environmental planning instrument or development control plan that applies to the land the subject of the appeal. b) Is the “Not more than 9 dwellings or less than 7 dwellings” specification for “Buffer area 3b” in the table to cl 6.1(3) of the PLEP a “development standard” to which cl 4.6 of the PLEP applies?
Catchwords:	PRACTICE AND PROCEDURE – whether by consent separate questions should be ordered in Class 1 appeal against deemed refusal of a development consent.
Legislation Cited:	Uniform Civil Procedure Rules 2005 r 28.2 State Environmental Planning Policy (Affordable Rental Housing) 2009 cl 13(2) Pittwater Local Environmental Plan 2014 cll, 4.6, 6.1(3)
Cases Cited:	Challenger Listed Investments v Valuer-General [2015] NSWLEC 7
Category:	Procedural and other rulings
Parties:	Lotus Project Management Pty Ltd (Applicant) Pittwater Council (Respondent)
Representation:	COUNSEL: N Hinks, solicitor (Applicant) O Adams, solicitor (Respondent) SOLICITORS: Hones La Hood (Applicant) King & Wood Mallesons (Respondent)
File Number(s):	10223/15