Vic Vellar Nominees Pty Limited v Wollongong City Council

[2010] NSWLEC 212

Land and Environment Court

of New South Wales

CITATION:

Vic Vellar Nominees Pty Limited v Wollongong City Council [2010] NSWLEC 212

PARTIES:

APPLICANT in 10434 of 2009, 10384 of 2010, 40712 of 2010 and RESPONDENT in 40838 of 2009
Vic Vellar Nominees Pty Limited

RESPONDENT in 10434 of 2009, 10384 of 2010, 40712 of 2010 and APPLICANT in 40838 of 2009
Wollongong City Council

FILE NUMBER(S):

10434 of 2009; 40838 of 2009; 10384 of 2010; 40712 of 2010

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- whether order should be made for the determination of a separate question common to four proceedings between the parties relating to the same land - order made.

LEGISLATION CITED:

Wollongong Local Environmental Plan 1990, cl 13(2)

DATES OF HEARING:

19 October 2010

EX TEMPORE JUDGMENT DATE:

19 October 2010

LEGAL REPRESENTATIVES:

APPLICANT in 10434 of 2009, 10384 of 2010, 40712 of 2010 and RESPONDENT in 40838 of 2009
Mr N Eastman, barrister
SOLICITORS
Wilshire Webb Staunton Beattie

RESPONDENT in 10434 of 2009, 10384 of 2010, 40712 of 2010 and APPLICANT in 40838 of 2009
Mr J Lazarus, barrister
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

19 October 2010

10434 of 2009
10384 of 2010
40712 of 2010

VIC VELLAR NOMINEES PTY LIMITED v WOLLONGONG CITY COUNCIL

40838 of 2009

WOLLONGONG CITY COUNCIL v VIC VELLAR NOMINEES PTY LIMITED

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a joint application by the parties, Vic Vellar Nominees Pty Ltd and Wollongong City Council, for the determination of a separate question as formulated in paragraph 1 of the proposed minutes of order annexed hereto, which was refined during the hearing of the application today.

2 As can be seen from the useful recitals in that document, four proceedings between the parties are pending in this Court relating to the same land. The proposed separate question is common to all four proceedings. Two are Class 4 proceedings, one brought by the council, the other brought by Vic Vellar Nominees. The council’s Class 4 proceeding seeks a declaration that two partially constructed dwellings on the subject land are not “existing dwelling houses” for the purposes of cl 13(2)(a) of the Wollongong Local Environmental Plan 1990 (WLEP). The Class 4 proceeding brought by Vic Vellar Nominees is a damages claim for breach of contract, negligence and misrepresentation which was commenced in the Supreme Court and transferred to this Court on 1 September 2010. The other two pending proceedings are Class 1 proceedings brought by Vic Vellar Nominees against, respectively, the council’s refusal of a two lot subdivision application and the council’s refusal of a modification application in respect of the approved location of the “southern and northern dwellings”.

3 The proposed separate question is concerned with whether the “northern building” and the “southern building” on the subject land is each an “existing dwelling house” for the purpose of cl 13(2) of the WLEP for the reasons identified in paragraphs 24 and 25 of the council’s Second Further Amended Points of Claim in its Class 4 proceedings.

4 That question arises in all four proceedings because cl 13(2) of the WLEP provides that:

“The Council shall not consent to the subdivision of land within Zone No 7(a), 7(b) or 7(d) unless:

(a) each allotment of land to be created by the subdivision has an existing dwelling-house on it and no rights for additional dwellings are created”.

5 Vic Vellar Nominees seeks development consent for a two lot subdivision of the land. The council contends that consent is prohibited under cl 13(2) because neither of the two allotments in the proposed subdivision has an existing dwelling house on it. The two dwelling houses in question are the “northern building” and the “southern building” referred to in the proposed separate question.

6 The council accepts that if its reasons in paragraphs 24 and 25 of its Second Further Amended Points of Claim in its Class 4 proceedings are rejected in relation to each of the buildings, then that building is an existing dwelling house for the purpose of cl 13(2)(a) of the WLEP.

7 If the separate question were to be decided in favour of Vic Vellar Nominees, the parties agree that will resolve both Class 4 actions. In that event there would only remain merits issues in the two Class 1 actions, which the parties consider could be determined by a Commissioner of the Court.

8 If the separate question were to be decided in favour of the council, two matters would remain. First, Vic Vellar Nominees’ pleaded defences, including an estoppel defence and a defence that certain amendments to the WLEP are unlawful and void. Secondly, Vic Vellar Nominees’ Class 4 damages claim.

9 I am persuaded that there is substantial utility in the proposed separate question. Accordingly, the Court orders a separate question in accordance with paragraph 1 of the minutes of order annexed hereto and makes directions leading to a hearing of the separate question in accordance with paragraphs 2-9.