Wollongong City Council v Vic Vellar Nominees Pty Ltd

[2011] NSWLEC 138

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138

Hearing dates:

28 July 2011

Decision date:

12 August 2011

Before:

Craig J

Decision:

1. The Council's notice of motion dated 12 July 2011 is dismissed.

2. The Council must pay the costs of that notice of motion.

3. Stand over all proceedings to the List Judge on Friday 19 August 2011.

4. Direct the parties to bring in short minutes of order at that time directed to the case management and further hearing of all proceedings.

Catchwords:

PROCEDURE - motion to determine separate question pursuant to Uniform Civil Procedure Rules 28.2 - whether the 'utility, economy and fairness' of determining a separate question is 'beyond question' - strictures of Uniform Civil Procedure Rules 28.2 not satisfactorily met - proposed question reframes separate question already answered - seeking to interpret or review previous answer - inappropriate use of facultative process in Uniform Civil Procedure Rule 28.2 - motion dismissed.

Legislation Cited:

Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rule 28.2
Wollongong Local Environmental Plan 1990

Cases Cited:

Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832
Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
Vic Vellar Nominees Pty Ltd v Wollongong City Council [2010] NSWLEC 212
Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 60
Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; (2010) 178 LGERA 445
Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193

Category:

Procedural and other rulings

Parties:

40838 of 2009
Wollongong City Council (Applicant)
Vic Vellar Nominees Pty Ltd (Respondent)

10434 of 2009, 40712 of 2010
Vic Vellar Nominees Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

40838 of 2009
Mr J E Lazarus (Applicant)
Mr N M Eastman (Respondent)

10434 of 2009; 40712 of 2010
Mr N M Eastman (Applicant)
Mr J E Lazarus (Respondent)
40838 of 2009
Sparke Helmore (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

10434 of 2009, 40712 of 2010
Wilshire Webb Staunton Beattie (Applicant)
Sparke Helmore (Respondent)

File Number(s):

40838 of 2009; 10434 of 2009; 40712 of 2010

Judgment

1. By notice of motion filed on 12 July 2011, Wollongong City Council ( the Council ) moves the Court for an order under Uniform Civil Procedure Rule ( UCPR ) 28.2 that a question be determined separately from and prior to any other remaining issue in the proceedings. Vic Vellar Nominees Pty Ltd ( Vic Vellar ) opposes the motion.

1. There are three interrelated proceedings currently before the Court. They arise from the rezoning of land owned by Vic Vellar on the Illawarra Escarpment at Corrimal. The rezoning occurred in 1993. Subsequently, the Council granted development consent and building approval for the erection of two dwellings on that land. Those dwellings have since been partially constructed. They have been referred to as "the northern building" and "the southern building" respectively. In 2009, Vic Vellar sought development consent for subdivision of that land.

1. The three interrelated proceedings involve an appeal in Class 1 of this Court's jurisdiction as well as two proceedings in Class 4. The appeal in Class 1 was commenced by Vic Vellar following refusal of its development application to subdivide the land ( the Subdivision Appeal ). The first of the two proceedings in Class 4 of the Court's jurisdiction involves an application by the Council for declaratory relief. It seeks an order to the effect, that by reason of the operation of Wollongong Local Environmental Plan 1990 ( WLEP ), neither of the partially constructed dwellings on the subject land is an "existing dwelling-house" within the meaning of that instrument, with the result that subdivision of the land must be refused. These proceedings have been referred to as "the Enforcement Proceedings".

1. The second set of proceedings in Class 4 are proceedings commenced by Vic Vellar against the Council. They are proceedings first commenced in the Supreme Court and transferred to this Court pursuant to s 149B of the Civil Procedure Act 2005. In those proceedings Vic Vellar claims damages for breach of contract, negligence and misrepresentation ( the Damages Claim ).

1. The separate question that the Council frames and seeks to have determined is as follows:

"Whether either the northern or southern buildings on the land comprising Lot 21 DP 838638 (' Land ') can be characterised as an 'existing dwelling house' within the meaning of clause 13(2) of the Wollongong Local Environmental Plan 1990 (' WLEP1990 '), notwithstanding the modification of Development Consent No. 92/772(' Consent ') and Building Approval number B797/94 (' BA ') granted by the Court relating to the Land at 7 Glenlea Street Corrimal on 1 June 2011, by reason of either of the following:

(a) Both buildings were constructed partly on land zoned 7(a) under WLEP 1990, in which zone dwelling-houses were a prohibited use; or

(b) Neither building was constructed in the location approved in either the Consent or by the BA."

1. On 31 December 2010, Biscoe J determined a similar separate or preliminary question ( Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266) ( the December Judgment ). His Honour determined the question then framed favourably to the Council. However, on 7 April 2011 his Honour refused an application for summary judgment made by the Council which it founded upon the answer that his Honour had given to the preliminary question. Rather, he ordered that an appeal from the Council's deemed refusal of an application to modify the development consent ( the Modification Appeal ) relating to the erection of the two dwelling houses on the land should first be listed for hearing, with the Subdivision Appeal, the Enforcement Proceedings and the Damages Claim adjourned pending determination of that appeal ( Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 60) ( the April Judgment ).

1. For reasons that follow, I have determined that the Council's notice of motion should be dismissed. Its attempt to frame and have heard a second separate question, closely related to the first, is not an appropriate use of the power available under UCPR 28.2. The strictures attending the making of an order for separate determination of a question or issue have not been satisfactorily met in respect of the further question sought to be advanced by the Council.

Background

1. The background to the imposition of planning controls, the consent and approval given for the erection of two dwelling-houses upon the land and a description of the interrelated proceedings to which I have referred are usefully summarised at [4] - [13] in the April Judgment. I have no need to repeat that background material. I do however record that since April what was referred to by his Honour as the Modification Appeal has been determined. On 1 June last, Commissioner Fakes made orders by consent upholding that appeal and modifying the building development consent and approval. It is that determination which is identified in the question now posed by the Council for separate determination.

1. Biscoe J first determined whether to entertain a separate question for determination when a joint application was made to him by the parties so to do on 19 October 2010 ( Vic Vellar Nominees Pty Ltd v Wollongong City Council [2010] NSWLEC 212. In deciding that the questions then framed were appropriate for separate determination, his Honour stated (at [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."

1. The separate questions determined by his Honour in the December Judgment were framed as follows:

"(a) Whether each of the northern building and the southern building on Lot 21 in DP 838638 is not an "existing dwelling-house" for the purpose of cl 13(2) of the WLEP because of:

(i) the reasons identified in paragraph 24(a) - (c) of the Council's Second Further Amended Points of Claim in its Class 4 proceedings;

(ii) the reasons identified in paragraphs 25(a) - (c) of the Council's Second Further Amended Points of Claim in its Class 4 proceedings.

(b) On the assumption that the Council was to prove the matters identified in paragraphs 24(d) and 25(e) of the Council's Second Further Amended Points of Claim, whether each of the northern building and the southern building on Lot 21 in DP 838638 is not an "existing dwelling-house" for the purpose of cl 13(2) of the WLEP."

Each of those questions was answered in the affirmative.

1. Question (a) of the two questions answered by his Honour is relevant but not central to the debate in the present notice of motion. His Honour determined that question, essentially on the basis that in order to qualify as an "existing dwelling-house" the buildings in question must be constructed not only to provide sleeping facilities for its occupants, but must also contain kitchen, bathroom and toilet facilities, if not laundry facilities. As the partially constructed buildings did not contain those facilities they could not be regarded as existing dwelling-houses (December Judgment at [50] and [64]).

1. It is question (b) of the questions answered by his Honour that is of central importance to the present application. His Honour determined that question, making the assumptions expressed at its commencement. It was a requirement, so his Honour found, that any existing dwelling-house was required to have been lawfully erected and upon the facts he had been asked to assume this requirement was not met. Importantly, he did not determine the facts necessary to make good that assumption (December Judgment at [71]). The facts asserted in paragraphs 24(d) and 25(e) of the Council's pleading were that each of the northern and southern buildings had been constructed in breach of either ss 76A or 76B of the Environmental Planning and Assessment Act 1979 ( EPA Act ) in that each building -

"(i) ... was constructed partly on land zoned 7(a), in which zone dwelling-houses were a prohibited use and/or

(ii) ... was not constructed in the location approved in either the Consent or the Building Approval".

1. By its amended points of defence, Vic Vellar denies that the two buildings were erected in breach of ss 76A or 76B and further denies that they were not built in accordance with the development consent or building approval granted in respect to them. Thus, the assumptions upon which Biscoe J answered question (b) remain in contest.

The present question

1. I have already identified at [5] the question that, by its present notice of motion, the Council now frames for separate determination. Mr Lazarus of counsel, who appeared for the Council, acknowledged that the present question is, in substance, very similar to question (b) that has already been answered by Biscoe J. The latter question has been reframed in order to avoid ambiguity that is said to arise from the manner in which question (b) was both framed and answered by his Honour.

1. The Council contends that by reason of the response provided by Biscoe J to question (a), no matter what work is undertaken to the northern and southern buildings, so as to provide those facilities determined by his Honour as necessary to categorise them as "existing dwelling-houses", the provisions of cl 13(2) of the WLEP could never be engaged. This is because those buildings were not lawfully erected on the land.

1. This has the consequence that pursuit of the Modification Appeal has been to no avail and completion of building works otherwise required to complete the dwellings will be of no avail, as consent can never be given to subdivision of the land. It is submitted that this is the consequence of the answers given by Biscoe J to the questions that have been answered. It is the submission that the Council will make on a final hearing of the proceedings.

1. Nonetheless, the Council seeks to have the question that it has reframed determined as a preliminary and separate matter now. It submits that there is utility in doing this as a determination in its favour would resolve the entirety of the Enforcement Proceedings, the Subdivision Appeal and the Damages Claim. Further, evidence from the Council's solicitor suggests that if the three interrelated matters proceed to hearing, an aggregate hearing time in excess of one week is likely to be required, with the result that a considerable saving of costs will occur if the separate question now propounded is determined favourably to it. Hearing of the question now posed should, so it is submitted, occupy no more than one day.

1. Finally, it suggests that determination of the question that is the subject of its motion would not involve any issue of disputed fact. The only facts relevant to determination of the question, so it is contended, is proof of those facts that were assumed by Biscoe J for the purpose of answering question (b). The Council contends that there is no bona fide dispute as to the existence of those facts.

Applicable principles

1. The principles applicable to the making of orders for the determination of separate questions are, with respect, usefully summarised by Jagot J in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 at [12] and restated by her Honour in Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 at [6] - [9]. In light of the comprehensive statement of principles there contained, it is unnecessary that I recite them in this judgment. They are reflected in my determination.

1. There are two matters of present importance that arise from consideration of that statement of principles. First is the caution that should attend the separate determination of a question or issue and the confidence to be had that the determination of such a question will, in reality, involve savings in time and cost. This proposition is exemplified in the joint judgment of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 where their Honours observed (at [168]):

"The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap."

1. Their Honours continued (at [170]):

"Single-issue trials should, in our opinion, only be embarked upon when their utility, economy and fairness to the parties are beyond question."

1. In Young v Parramatta City Council , Jagot J sought to draw these cautionary principles together, in a manner which I would respectfully embrace, when her Honour said (at [11]):

"A number of the decisions referred to above identify the appropriate degree of confidence (that the proceedings will be fair and involve real savings in time and cost) to warrant the making of an order for separate determination. In Tallglen, the criterion was described as one where the beneficial results should be able to be seen "with clarity". In Poynting , the formula adopted was that the procedure ought "far more likely than not be convenient and save significant expense". In Tepko , the standard identified as appropriate was the "utility, economy and fairness to the parties" of the making of the order sought to be "beyond question"."

1. The second matter that arises from the statement of principles is very much related to the first. It is that the determination of a separate question ought ordinarily be made on the basis of either facts found or agreed. Where determination depends upon facts about which there is genuine contention, the utility of the separate question process must seriously be questioned. The requisite degree of confidence is less likely to exist.

Vic Vellar's response

1. Mr Eastman of counsel, who appears for Vic Vellar, opposed the order sought by the Council on two broad bases. First, he submitted that what the Council seeks is, in effect, a reopening of the question already determined by Biscoe J. Second, he submits that determination of the question posed by the Council would not have the effect upon the disposition of the interrelated proceedings for which the Council contends.

1. In agreeing to the separate determination of the questions answered by Biscoe J, Vic Vellar contends that the temporal manner in which the questions were framed was significant. It sought to argue the matter before his Honour on the basis that, in fact and law, the northern and southern buildings on the subject land were existing dwelling-houses in their present state of construction. His Honour's answer to that question is, so it is submitted, that at the time of his determination they could not be so described.

1. However, it is further contended on behalf of Vic Vellar that the effect of the answers given by his Honour to questions (a) and (b) was not to foreclose to Vic Vellar the opportunity to cure that temporal invalidity. It is submitted that not only is this consequence implicit in the answers given by his Honour to the questions, as framed, but is also implicit in the orders made by his Honour in April 2011. At that time he dismissed the Council's application for summary judgment and ordered the sequence in which all related proceedings should proceed to determination.

1. Although it is acknowledged by Vic Vellar that the Council does not concede a temporal limitation in the answers given by Biscoe J to questions (a) and (b), the acknowledgment by the Council that the question now posed for separate determination seeks to address an ambiguity in those answers is tantamount to a reopening of the question already determined. It is inappropriate that this be done by seeking to engage the provisions of UCPR 28.2.

1. The second way in which Vic Vellar seeks to sustain its opposition to the separate hearing of the question now framed is in two parts. First, assuming an affirmative answer to that question, determining that the carrying out of past unlawful works are fatal to the grant of development consent to subdivision, even if works are carried out in accordance with the modified building approval granted by the Court, it says that significant issues will remain to be determined in the Enforcement Proceedings and potentially in the Damages Claim.

1. Further, Vic Vellar asserts that the critical facts identified in paragraphs 24(d) and 25(e) of the Council's pleading, necessary to the determination of the question posited by the Council, are genuinely in dispute. Not only did it deny the allegations in its amended points of defence filed on 1 October 2010 but it has obtained and will rely upon evidence supporting that denial. It maintains that each of the northern and southern buildings on the land were located in conformity with plans that were both the subject of development consent and building approval granted by the Council.

The question is inappropriate for separate determination

1. It is significant in determining the Council's notice of motion that the question presently framed reflects an endeavour to have determined conclusively that which it contends is either implicit in, or the consequence of, the answers already provided by Biscoe J to questions (a) and (b). The framing of questions in successive applications for separate determination, depending upon the answer given to a previous question, seems to me to be an inappropriate use of the procedure available under UCPR 28.2. That procedure requires, in general, that a separate question or questions be framed felicitously so that the consequence of the answer or answers given is clear in its effect upon the outcome of the proceedings. Unless this is done and all questions appropriate for separate determination are agitated at the one time, the facultative purpose of the procedure is defeated and the strictures applying to its use not observed.

1. In an interlocutory application of the present kind it is not appropriate that I express a concluded view as to the effect of the answers given by Biscoe J to questions (a) and (b). However, there is substance in the argument advanced by Vic Vellar that in making the orders that he did on 7 April last, his Honour accepted, as arguable, the proposition that his answers to the questions posed to him had not determined the issue of what I would describe as "inherent invalidity" by reason of past unlawful construction, as is claimed to be the case by the Council.

1. That latter conclusion follows for three reasons. First, at [26] of the April Judgment, Biscoe J records the submission made to him on behalf of Vic Vellar that "if certain steps were taken, the subject dwelling houses could be 'existing dwelling houses' for the purposes of cl 13(2) of WLEP 1990." The submission as recorded by his Honour then continues by identifying "the certain steps" to be taken leading to the determination of the Modification Appeal and, assuming that appeal is determined in favour of Vic Vellar, the undertaking of work to complete the dwellings followed by the hearing of the Subdivision Appeal.

1. It will be remembered that on that occasion Biscoe J was determining the notice of motion filed by the Council for summary dismissal of both the Enforcement Proceedings and Subdivision Appeal and also the notice of motion by Vic Vellar, seeking orders for the progressive determination of the interrelated proceedings. In expressing his conclusion on these notices of motion, his Honour said (at [28]):

"In my opinion, there is sufficient weight in Vic Vellar's submissions to justify the conclusion that it ought to have the opportunity to achieve the outcome it seeks by the course that it has proposed ".

The course proposed involved taking "the steps" identified in its submission.

1. The second matter supporting the proposition that the answers given to questions (a) and (b) may not have resolved the issue in the manner argued by the Council is his Honour's reappraisal of the consequences for the proceedings, following determination of those questions. Relevantly he said (at [29]):

"When the order to determine the preliminary questions was made I had understood, based upon what I was told, that if they were to be determined in favour of the Council, the only two remaining matters would be the pleaded defences in the Enforcement Proceedings and the Damages Claim. However, I am persuaded on the material now put before me that Vic Vellar did not intend to abandon its other pending proceedings and that this was communicated to the Council."

The orders that his Honour then made gave effect to the position articulated by Vic Vellar.

1. The third matter of relevance is the manner in which his Honour expressed his conclusion when addressing the Council's application for summary judgment. He said (at [28]):

" ... summary judgment or judgment under UCPR 28.4 should be refused. A very clear case is required before summary judgment is granted and the power is sparingly employed. In the Enforcement Proceedings, the estoppel defence and discretionary considerations have not yet been determined. It is premature to give judgment in those proceedings."

1. Although the Council prays in aid the reasons expressed by his Honour for dismissal of its motion for summary judgment, it seems to me that the absence of a "very clear case" for summary judgment, coupled with the orders then made, are matters that speak against the consequence of his Honour's answers to the separate questions for which the Council contends. It can hardly be expected that his Honour would have made the orders that he did, potentially involving Vic Vellar in a futile exercise by embarking upon the process of progressive determination of all outstanding proceedings, if the result of answers given to the questions posed were then seen to have the consequence that Vic Vellar could never achieve the outcome that it sought.

1. Vic Vellar is correct in contending that the Council is, in reality, seeking to reopen the question determined by Biscoe J. By the orders made on 7 April, his Honour has effectively determined the course that should be taken to resolve the outstanding proceedings between the parties. The posing of a second question for separate determination should not be used in a manner which has the effect of reviewing his Honour's decision to make the orders that he did on 7 April.

1. The principles applicable to the making of an order for separate determination of a question speak against the Council's present application. I cannot conclude with confidence that the "utility, economy and fairness to the parties" in making the orders sought is "beyond question".

1. In the context of "fairness", I note that in compliance with Order 2 of the orders made by Biscoe J on 7 April, the Modification Appeal was listed for hearing and determined on 1 June last. The Council participated in that hearing. Indeed, it ultimately indicated its consent to the modification sought by Vic Vellar. It was only on 12 July that the present notice of motion was filed. In the circumstances, there is an element of unfairness in the Council participating in the process established by his Honour's orders and then belatedly making an application which, if sustained, render the prosecution of the Modification Appeal a wasted exercise.

1. A consideration of the utility and economy to the parties in determining the application for a separate question also weighs in favour of Vic Vellar. There are contested issues of fact to be determined that are germane to the question posed. While these contested issues may not be as extensive as those required to be determined in exploring all issues arising in the various proceedings, I cannot dismiss the prospect that other issues might ultimately bear upon the determination of the question posed for consideration. In the face of this uncertainty, there will be the danger that other facts may later turn out to be relevant, resulting in a decision that is, in a sense, hypothetical because reliance is placed "on incomplete facts or facts not all found or agreed" ( Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 per Santow J at [24]).

1. For these reasons, the question advanced by the Council in its notice of motion is not appropriate for separate determination prior to the determination of the other issues arising in the interrelated proceedings. In the circumstances I have outlined, the mechanism available under UCPR 28.2 should not be engaged for a purpose that, in effect, seeks to interpret or review answers to the separate questions determined by Biscoe J.

1. The litigation between the parties should be prepared for hearing in a manner consistent with that ordered by Biscoe J on 7 April 2011. I therefore propose to stand over the proceedings to the List Judge on Friday 19 August, to the intent that the parties should then bring in short minutes of order for the case management of the proceedings that are yet to be determined.

Orders

1. The orders that I make are therefore as follows:

1. The Council's notice of motion dated 12 July 2011 is dismissed.

2. The Council must pay the costs of that notice of motion.

3. Stand over all proceedings to the List Judge on Friday 19 August 2011.

4. Direct the parties to bring in short minutes of order at that time directed to the case management and further hearing of all proceedings.

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Decision last updated: 17 August 2011