Williams v Shellharbour City Council

[2019] NSWLEC 135

Land and Environment Court

New South Wales

Medium Neutral Citation:	Williams v Shellharbour City Council [2019] NSWLEC 135
Hearing dates:	24 September 2019
Date of orders:	24 September 2019
Decision date:	25 September 2019
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	Separate question ordered. See orders at [41].
Catchwords:	SEPARATE QUESTION: whether to order a separate question – legal principles to be applied – question if answered negatively would be entirely dispositive of the proceedings – delay in making the application – substantial savings in costs and time – separate question ordered – parties not entitled to cease preparing for final hearing pending determination of separate question thereby causing potential vacation of hearing dates.
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 4.46 Land and Environment Court Act 1979, s 34 Shellharbour Local Environmental Plan 2013, cls 4.1AA, 4.6(6), 5.10(10), 6.1, 6.3, 6.11, Sch 5 Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited:	Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 Hunter v Wyong Shire Council [2012] NSWLEC 250 Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121; (2008) 71 NSWLR 306 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446
Category:	Procedural and other rulings
Parties:	Brad Williams (Applicant) Shellharbour City Council (Respondent)
Representation:	Counsel: Ms A Pearman (Applicant) Ms P Hudson (Solicitor) (Respondent)   Solicitors: Planning Law Solutions (Applicant) Mardsens Law Group (Respondent)
File Number(s):	2018/359474

Judgment

The Parties Seek the Determination of a Separate Question

1. By notice of motion filed on 9 September 2019, the parties to a Class 1 appeal seek the determination of the following separate question in advance of the final hearing which has been listed for three days commencing on 25 February 2020:

(a) is the proposed development, which is a community title subdivision, “development for any purpose” pursuant to cl 5.10(10) of Shellharbour Local Environmental Plan 2013 (“LEP”)?

(b) if the answer to question (a) is “no”, is the proposed development, being a community title subdivision which proposes lots that are less than the minimum subdivision size shown on the Lot Size Map in relation to the subject land pursuant to cl 4.1AA of the LEP, permissible with consent under the LEP?

2. The question above was a reformulation of the original question contained in the motion, reached after discussion with the parties during the course of argument on the motion and in light of the agreed facts. As a consequence, the question can be characterised as a question of law, wholly divorced from the merits of the matter, and not a question of mixed law and fact, as previously framed. Apart from agreed facts, only limited evidence will be required to determine the separate question. No expert evidence will be required.

3. The Court agrees that it is appropriate to order the separate question as reframed above, subject to one caveat, namely, that because of the lateness of the application (an explanation is provided below), the parties cannot be guaranteed an answer to the question in sufficient time…