Tricon Services Group Pty Ltd v Manly Council
[2010] NSWLEC 256
•9 December 2010
Land and Environment Court
of New South Wales
CITATION: Tricon Services Group Pty Ltd v Manly Council [2010] NSWLEC 256 PARTIES: APPLICANT
RESPONDENT
Tricon Services Group Pty Ltd
Manly CouncilFILE NUMBER(S): 10584 of 2010 CORAM: Craig J KEY ISSUES: PRACTICE AND PROCEDURE :- separate question for determination - Uniform Civil Procedure Rule 28.2 - validity of steps to realign a road pursuant to s 262 Local Government Act 1919 (now repealed). LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1919 (now repealed)
Roads Act 1993CASES CITED: Kevin Snell Pty Ltd v Manly Council [2005] NSWLEC 193 DATES OF HEARING: 2 December 2010
9 December 2010EX TEMPORE JUDGMENT DATE: 9 December 2010 LEGAL REPRESENTATIVES: APPLICANT
P C Tomasetti SC with J L Doyle (Barrister)
SOLICITORS
Hunter LawyersRESPONDENT
L R Finn (Solicitor)
SOLICITORS
HWL Ebsworth Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCRAIG J
9 December 2010
10584 of 2010 TRICON SERVICES GROUP PTY LTD v MANLY COUNCIL
EX TEMPORE JUDGMENT
1 HIS HONOUR: Tricon Services Group Pty Ltd seeks development consent to redevelop land known as 46-48 North Steyne, Manly (the site). Without being exhaustive, it proposes new development comprising ground floor retail or commercial premises with residential premises above. It is a site located opposite to Manly Beach.
2 Tricon has appealed to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 by reason of the failure of the Council to determine its development application. Its Class 1 application has not yet been fixed for hearing.
3 By its Statement of Contentions filed in the proceedings, the Council has identified eleven grounds upon which it contends that Tricon’s development application should be refused. Contention numbered 7 is expressed as follows:
- “The proposal involves works within an area designated in Attachment 4 of the Business Zone DCP for proposed road realignment.”
4 Notwithstanding the reference to the Business Zone DCP, Contention 7 is founded upon steps said to have been taken in 1961 to realign the road known as North Steyne, whereby a depth of almost five metres along the frontage of the site would be required for road widening. If those steps are legally effective, development within the road widening area is limited to structures of a ‘temporary’ nature.
5 By reason of this circumstance, the applicant applies pursuant to UCPR 28.2 to have separately determined a question which, in substance, is whether the actions taken by the Council in 1961 have the legal consequence of restricting development upon the land in the manner for which the Council contends. It is not suggested that the determination of this question will, if resolved favourably to the applicant, obviate the need to litigate other issues in the proceedings.
6 The Council relies upon a notice published in the Gazette on 28 April 1961, the effect of which, so it is contended, realigned North Steyne pursuant to the provisions of s 262 of the Local Government Act 1919 (now repealed). It is acknowledged that publication in the Gazette alone is insufficient to achieve the consequence for which the Council contends, it being necessary that a notice also be served upon the owner of affected land in accordance with s 262(3) of the Local Government Act 1919 prior to its repeal in 1993 (cf Kevin Snell Pty Ltd v Manly Council [2005] NSWLEC 193 at [41]).
7 Ordinarily, the determination of a separate question that is not likely to bring the proceedings to a conclusion, or, at least, considerably truncate the time and issues for hearing, would not be the subject of an order pursuant to UCPR 28.2. However, the issue raised by Contention 7 is one that is not confined to the particular development application which is the subject of the present appeal.
8 It is apparent that the site in question is one that the present owners, through the applicant, intend to redevelop. Whether that redevelopment takes place in the form presently proposed or any other form will be affected by the determination of the issue that informs Contention 7. As I understand the submission made on behalf of the Council by Mrs Finn, its solicitor, so much is acknowledged by it. The issue is an enduring one. Its determination will impact upon other issues in the proceedings. Moreover, I am told that if the steps taken by the Council commencing with the notice in 1961 are legally ineffective to secure the realignment of North Steyne, Contention 7 will not otherwise be advanced as a ground for refusal.
9 It seems to me, therefore, that this is an appropriate case in which an order ought be made pursuant to UCPR 28.2 for the determination of a separate question. That separate question relates to the legal efficacy of the steps taken by the Council between 1961 and 1993 relating to the realignment of North Steyne.
10 The orders that I make are therefore as follows:
- 1. Order pursuant to Uniform Civil Procedure Rule 28.2 that the following question be determined separately from any
other question or issue raised in the proceedings, namely -
- a. In the circumstances and events that have happened, had a notice under s 262(3) of the Local Government Act 1919 (now repealed) been served on the owner of the land the subject in these proceedings as at the date of the repeal of that Act?
- b. In the circumstances and events that have happened, does a road widening order within the meaning of s 25 of the Roads Act 1993 apply to the land the subject of these proceedings?
- 2. Stand over the proceedings to the Registrar’s List on Tuesday 14 December 2010 for the purpose of fixing a date
for hearing and giving directions for the preparation of the separate question hearing.
- 3. Exhibits tendered for the purpose of this application may be returned.
0