W and J Lee Property Investments Pty Ltd v Georges River Council

[2018] NSWLEC 103

Land and Environment Court

New South Wales

Medium Neutral Citation:	W & J Lee Property Investments Pty Ltd v Georges River Council [2018] NSWLEC 103
Hearing dates:	29 June 2018
Date of orders:	29 June 2018
Decision date:	29 June 2018
Jurisdiction:	Class 1
Before:	Moore J
Decision:	At [4] to [6]
Catchwords:	SEPARATE QUESTION - notice of motion seeking separate question - proposed separate question a confined one - proposed separate question potentially dispositive of proceedings - determination of separate question should not interfere with the date set for conciliation conference - separated question ordered
Category:	Procedural and other rulings
Parties:	W & J Lee Property Investment Pty Ltd (Applicant and Respondent on the Motion) Georges River Council (Respondent and Applicant on the Motion)
Representation:	Counsel: Dr S Berveling, barrister (Applicant and Respondent on the Motion) Ms A Hemmings, barrister (First Respondent and Applicant on the Motion)   Solicitors: G&B Lawyers (Applicant and Respondent on the Motion) Lindsay Taylor Lawyers (Respondent and Applicant on the Motion)
File Number(s):	8499 of 2018
Publication restriction:	No

EXTEMPORE JUDGMENT

1. HIS HONOUR: Having read the material appended to the affidavit of Ms Puckeridge, affirmed on 22 June 2018, and, in light of the fact that, by consent, I have granted leave to the Respondent Council to amend its Statement of Facts and Contentions in accordance with Annexure F to Ms Puckeridge's affidavit - that document containing within it the contention that the proposal currently the subject of the Class 1 proceedings must be refused because it is designated development - I turn to the issue of the proposed separate question. As a consequence of what the Council says is the application of cl 32(1)(d)(v) in Sch 3 of the Environmental Planning and Assessment Regulation (the Regulation), the Council says the development is mandated to be dealt with as designated development.

2. The matter should be determined as a separate question, as the determination of that question, if found in favour of the position proposed by the Council, will be dispositive. Determination of the separate question is largely an issue of fact. To the extent that issues of interpretation might be involved, they will be extremely limited, given the confined nature of the relevant provision of the Regulation upon which the Council relies. The parties agree that the matter will take a maximum of one day.

3. The Applicant for development consent is, in effect, adequately informed of the nature of what will form the basis of the Council's evidence, as the relevant material upon which the Council can be expected to rely when turned into proper evidentiary form has been served on the Applicant for development consent as a consequence of the service of the affidavits of Ms Puckeridge of 22 June and 26 June 2018 and the annexures thereto.

4. I therefore order that the matter be set down to be determined as a separate question, that question being:

Whether DA2016/0107 is an application for designated development within the meaning of the Environmental Planning and Assessment Act 1979?

5. I set that matter down for hearing commencing at 10.00 am in court on Monday 30 July 2018.

6. I do not, at this stage, make the third order sought by the Council - that is, the vacation of the conciliation conference presently set for 6 September 2018 - as it is my confident anticipation that a decision will be available in sufficient time on the separate question to be able to preserve that conciliation conference date if the Council is unsuccessful on the separate question.

7. It is appropriate for me to direct the parties to confer now and provide my Associate, by close of business on Monday 2 July 2018, a timetable for the formalisation of the Council's evidence and the provision of any evidence in reply upon which the Applicant for development consent wishes to rely. There should be liberty to relist before the List Judge on three days' notice on any Friday between now and that date.

8. The timetable that is to be prepared should also encompass a contingent timetable, post 30 July 2018, for the exchange of position papers between the parties against the eventuality that the conciliation conference might go ahead. It would be my anticipation that it would be appropriate for those position papers to be exchanged some time during the week commencing 27 August 2018 so that it would not be necessary for the parties to go to the expense of preparing such material until after the separate question had been determined.

9. With respect to the Notice of Motion filed 30 May 2018 on behalf of Allied Pinnacle New South Wales Pty Limited, I stand that Notice of Motion over until 30 July 2018 before the judge who is hearing the separate question. I observe that it would be unnecessary for the Applicant on that motion to attend on that day, but I reserve liberty to the Applicant on that Notice of Motion to seek to exercise the general liberty to relist that I have given to the parties to the proceedings at an appropriate point after the decision on the separate question has been determined.

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Decision last updated: 04 July 2018