820 Cawdor Road Pty Ltd v Wollondilly Shire Council

A.REASONS FOR ORDERING SEPARATE DECISION OF THE QUESTIONS 7Part 28 of the Uniform Civil Procedure Rules provides for the separate decision of questions as follows: Part 28 Separate decision of questions and consolidation Division 1 Preliminary 28.1 Definition (cf SCR Part 31, rule 1) In this Part, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise. Division 2 Separation of questions 28.2 Order for decision (cf SCR Part 31, rule 2) The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings. 28.3 Record of decision (cf SCR Part 31, rule 5) If any question is decided under this Part, the court must, subject to rule 28.4, either: (a) cause the decision to be recorded, or (b) give or make such judgment or order as the nature of the case requires. 28.4 Disposal of proceedings (cf SCR Part 31, rule 6) (1) This rule applies if the decision of a question under this Division: (a) substantially disposes of the proceedings or of the whole or any part of any claim for relief in the proceedings, or (b) renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim for relief in the proceedings. (2) In the circumstances referred to in subrule (1), the court may, as the nature of the case requires: (a) dismiss the proceedings or the whole or any part of any claim for relief in the proceedings, or (b) give any judgment, or (c) make any other order. 8The two criteria in r 28.4(1) are factors for consideration when deciding whether to order the separate decision of a question. But the general discretion has regards to additional factors. 9In deciding whether to make such an order, the Court is obliged to seek to give effect to the overriding purpose of the Civil Procedure Act and rules of Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings: ss 56(1)-(2) Civil Procedure Act. 10Legal principles to guide the exercise of the Court's discretion as to whether to order the separate decision of a question, as identified in earlier decisions of the Court, were summarised in Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 at [11] by myself. Reference may also be made to the discussions in Hunter v Wyong Shire Council [2012] NSWLEC 250 at [12] - [15] per Pepper J, Hornsby Shire Council v The Valuer General of New South Wales [2012] NSWSC 894 at [27] - [35] per Garling J and Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7] - [8] per Einstein J, and to the authorities referred to therein. The principles to be derived to guide the exercise of the Court's discretion whether to order the separate decision of a question may be expanded and restated in summary form as follows: (a)Generally speaking, all issues should be tried and decided at the same time. (b)It is for the party seeking the order to show to the Court that separate decision of a question is appropriate. (c)Separate decision of a question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. This gives effect to s 56 of the Civil Procedure Act. Thus, the procedure needs to be fair and involve real savings in time and cost. (d)Separate decision of a question may be appropriate where it is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. (e)In particular circumstances separate decision of a question may be appropriate even if it will not bring the proceedings to an end. This may occur where the decision will substantially narrow the field of controversy by obviating unnecessary and expensive hearing of other questions or where the decision carries with it a strong prospect that the parties will then be able to agree upon resolution of the proceedings. But on such occasions care must be exercised lest fragmentation of the proceedings (particularly where the exercise of appeal rights is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. (f)Separate decision of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to remaining issues in the proceedings (and thus require the remaining issues to be dealt with by another judge). (g)Where the question sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and all the facts upon which that question has to be considered should be agreed or clearly ascertainable. (h)Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely. 11If question 1 is answered no, it will be determinative of the appeal. If question 1 is answered yes, then the answer to question 2 will determine the extent to which consent to the DA is permissible. The parties agreed that determination of the separate questions would be likely to result in a significant saving in time and costs in relation to the other issues in the case and in avoiding interlocutory processes, including the statutory conciliation conference that might have to be held on the Land, which is located a substantial distance from Sydney. The Council's estimate of the saving of time for the hearing of other issues was two to three days and the applicant's estimate was half a day to two days, depending on whether the conciliation conference is held on the Land or in Sydney. All the facts relevant to deciding the proposed questions have either been found in the earlier proceedings between the parties or are uncontroversial. Due to a misunderstanding by the parties of directions made by the Deputy Registrar, the parties prepared for the hearing on the basis that they should be ready to proceed immediately to a hearing of the questions if separate decision were ordered and they filed written submissions relating to those questions. The hearing of the preliminary questions would conclude on the same day as the hearing of the motion that they be heard separately. 12In those circumstances, at the hearing I considered it appropriate to make, and did make, an order for separate decision of the two questions and indicated that I would provide reasons later. 13I turn to consider the questions for separate decision.

B.THE ANSWERS TO THE SEPARATE QUESTIONS 14The parties' competing positions, which the separate questions address, are summarised above at [3]. 15The DA describes the proposed development as "staged removal of damaged elements and reconstruction as necessary to an existing development". This "existing development" is a dilapidated building occupied as a dwelling by Mr Richard Garton, a recluse in his late 60s with a history of manic depressive disorder. The description in the DA is amplified in the accompanying statement of environmental effects. It indicates that the proposed development involves substantially rebuilding the existing building and, in addition, providing facilities which it does not have, namely, a kitchen, toilet, provision of water and electrical connections. An accompanying report of an engineer, Mr Appleyard, notes that "there is an almost complete lack of structural integrity in all timber framing components and connections. In addition, many of the timber framing components have had their nominal section sized [sic] reduced by white ant infestation, wet rot and other deleterious actions". The report also notes that the building "Cannot be readily rectified (if at all) except by virtually complete demolition and re-construction". The Building was erected lawfully as a dwelling house in about the 1890s although its use as a dwelling was abandoned some time prior to Mr Garton's occupation commencing. Mr Garton has lived in it for approximately the last 20 years. 16The statement of environmental effects accompanying the DA states that the DA is made under cl 4.2A of WLEP 2011 and that it is made in respect of Lloyd AJ's findings in earlier proceedings that (a) Mr Garton can remain in occupation, (b) there is a concern about structural stability and (c) essential repairs can be carried out. It states that the objective of the DA is to ensure the on-going health and safety of the existing occupant and that it is made under cl 4.2A of the WLEP 2011. 17The earlier proceedings were unsuccessful Class 4 civil enforcement proceedings brought by the Council against Cawdor and the occupier, Mr Garton: Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71. The Council sought declarations and orders relating to the unlawful use and occupation by Mr Garton of the Building, which he used as a dwelling, including an order that Cawdor and the occupier be restrained from using the Building as a dwelling house until development consent was obtained for that purpose. Lloyd AJ held that: (a)although the Building did not have facilities normally found in a house (kitchen, bathroom, toilet, laundry, water, electricity, stove, refrigerator, heating or cooling), Mr Garton used and occupied the Building as a separate domicile and therefore it was a "dwelling" as defined in WLEP 2011: at [26]; (b)that dwelling, together with two other dwellings on the land, which had been approved by the Council, meant that there was "multi dwelling housing" as defined in WLEP 2011 on the land, which is prohibited within the relevant zone: at [26]; (c)however, for discretionary reasons, no relief should be granted and the summons should be dismissed. Therefore Mr Garton could remain in occupation: at [11] - [17]; (d)there was concern about structural stability of the Building and essential repairs can be carried out: at [15] - [17]. 18The definitions in WLEP 2011 which led Lloyd AJ to conclusions (a) and (b) above are as follows: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building. Note. Multi dwelling housing is a type of residential accommodation-see the definition of that term in this Dictionary. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. dwelling house means a building containing only one dwelling. Note. Dwelling houses are a type of residential accommodation-see the definition of that term in this Dictionary. 19In relation to facilities and occupation by Mr Garton, Lloyd AJ made the following findings of fact, at [1]: The building has no facilities that we normally find in a house - it has no kitchen, no bathroom, no toilet, no laundry, no water laid thereon, no electricity, no stove, no refrigerator, no heating and no cooling. Mr Garton cooks on a grate on an open fire or on a camping stove, and keeps his perishable food cool by storing it in a container topped with a wet cloth. He uses a toilet in an empty building on the property which appears to be connected to a septic tank, but which he has to flush with a bucket. 20In relation to the structural stability of the Building, his Honour said, at [15] - [16]: 15 The only reservation I have in exercising the Court's discretion in this way is the physical condition of the building - not so much its lack of facilities, but its structural stability. In this respect I refer to the evidence of Mr LD Appleyard, a consulting civil and structural engineer who gave evidence for the Council. 16 Mr Appleyard conceded that the building, as with most buildings of its age, was originally over-designed. I understand this to mean that it was built to a higher standard of structural stability than would nowadays be required. The structure of the building has, however, deteriorated. Without going into the details, Mr Appleyard is of the opinion - which is not disputed - that the structure is now manifestly unsound and unsafe and, in particular, it is at a clear and obvious risk of collapse due to wind action. In cross-examination, however, Mr Appleyard conceded that the structure could have a lifespan of up to a further ten years in the absence of any abnormal wind events. In his opinion, the integrity of the building is beyond salvation and cannot be readily rectified except by virtually complete demolition and reconstruction. He conceded, however, that a staged removal and reconstruction would not affect the structural stability of the building. 21As the DA specifies that it is for the purpose of a dwelling house, if consent to this DA is permissible and were to be granted, it would go far beyond ensuring its stated objective of ensuring Mr Garton's health and safety. That is because it would convert the existing unlawful use of the Building as a dwelling house into a lawful and perpetual use of the Building as a dwelling house by reason of s 81A(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) even after Mr Garton departs. That situation was not contemplated in the judgment of Lloyd AJ. This is Council's concern. Section 81A(1) provides: 81A Effects of development consents and commencement of development (1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M. Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building. 22However, importantly, Council conceded at the hearing that Cawdor could achieve its stated objective of securing the health and safety of Mr Garton by amending the DA to an application for consent as to a non dwelling structure such as a farm building, which is permitted with development consent under the Land Use Table. Consistently with Lloyd AJ's judgment, Mr Garton could continue to reside there. 23The DA, founded as it is on cl 4.2A(4)(a), is opportunistic in the temporal sense that once Mr Garton quits the Building, it will cease to be a dwelling, as defined in WLEP 2011 by reference to his domicile. Hence that clause will cease to apply and consent would be impermissible under the Land Use Table because it would result in prohibited multi dwelling housing. However, if in the meantime consent is granted to this DA, the present unlawful use of the Building as a dwelling house will become lawful in perpetuity by reason of s 81A(1) of the EPA Act even after Mr Garton quits the Building. 24Clause 2.3 of WLEP 2011 provides for a Land Use Table as follows: 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone: (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part: (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) This clause is subject to the other provisions of this Plan. ... 25The fate of the preliminary questions turns on the construction of cl 4.2A(4)(a) of the WLEP 2011. Clause 4.2A provides: 4.2A Erection of dwelling houses on land in certain residential, rural and environmental protection zones (1) The objectives of this clause are as follows: (a) to minimise unplanned rural residential development, (b) to enable the replacement of lawfully erected dwelling houses in residential, rural and environmental protection zones, (c) to protect and manage areas of high ecological and scenic landscape value by preventing dwelling houses on parcels of a size that may have those values damaged by such development, (d) to maintain existing development opportunities by providing certainty about the area of land required for the erection of a dwelling house, (e) to control rural residential density affected by historical subdivision patterns in Zone R5 Large Lot Residential. (2) This clause applies to land in the following zones: (a) Zone RU1 Primary Production, ... (3) Development consent must not be granted for the erection of a dwelling house on land to which this clause applies, and on which no dwelling house has been erected, unless the land is: (a) a lot that is at least the minimum lot size specified for that land by the Lot Size Map, or (b) a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, or (c) a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement. (4) Despite subclause (3), development consent may be granted for the erection of a dwelling house on land to which this clause applies if: (a) there is a lawfully erected dwelling house on the land and the dwelling house to be erected is intended only to replace the existing dwelling house, or (b) the land would have been a lot referred to in subclause (3) had it not been affected by: (i) a minor realignment of its boundaries that did not create an additional lot, or (ii) a subdivision creating or widening a public road or public reserve or for another public purpose. 26Clause 2, within Part 2, of WLEP 2011 provides for the Land Use Table. The Land Use Table sets out the objectives of each zone, development that may be carried out without development consent or with development consent, and development that is prohibited. It prohibits multi dwelling housing, as defined. There is multi dwelling housing on the Land by virtue of Mr Garton using the Building as his domicile (thus satisfying the second limb of the definition of "dwelling") and the presence on the Land of two other dwelling houses previously approved by Council. 27Council submits that, consequently, consent to the DA is impermissible. Cawdor submits that consent is permissible under cl 4.2A(4)(a) of WLEP 2011 as an exception to the prohibition in the Land Use Table. 28Section 11 of the Interpretation Act 1987 (NSW) provides that "Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made". By dint of s 11, the words "erection" and "erected" in cl 4.2A of WLEP 2011 have the extended meaning in the definition of "erection of a building" in s 4(2)(b)(i) of the EPA Act, which includes "the rebuilding of, the making of alterations to, or the enlargement or extension of, a building". 29Thus, works such as those proposed by the DA in the present case all come within the extended meaning of "erection" and "erected" in cl 4.2A of WLEP 2011. 30Clause 2.3(4) of WLEP 2011 provides that cl 2 is subject to the other provisions of the WLEP 2011. Therefore the Land Use Table for which cl 2.3(1) provides is subject to cl 4.2A(4)(a). 31Whilst accepting that the Land Use Table is subject to cl 4.2A(4)(a), Council submits that that provision is merely an exception to a development standard in cl 4.2A(3) and is applicable only to development applications for which consent can be granted under the Land Use Table. 32In my opinion, when cl 4.2A(4)(a) is read in context, it does not expand the cases in which development consent is permitted under the Land Use Table and is only a development standard for consents to development permitted by the Land Use Table in Part 2, in which cl 2 appears. Part 2 is entitled "Permitted and prohibited development". In contrast, the title to Part 4, in which cl 4.2A appears, is "Principal development standards". In my view, this scheme indicates that Part 2 covers the field of permitted and prohibited development and that Part 4 is concerned only with development standards for development permitted with consent under Part 2. 33In my view, the word "replace" in cl 4.2A(4)(a), and the word "replacement" in the objective in cl 4.2A(1)(b) are intended to indicate that consent cannot be given to an additional dwelling house. Clause 4.2A permits the replacement of old dwelling houses, which may not have the functionality of a modern dwelling house, with dwelling houses that do have that functionality. For example, if the area had not been the subject of reticulated sewerage or electricity when the dwelling house was erected, consent could be given to a replacement dwelling house which had those elements. I do not think it was the intent of the clause to preserve outdated construction. 34As Cawdor suggests, the Council's suggested limitation to existing elements in cl 4.2A(4)(a) of the WLEP 2011 is also difficult to reconcile with cl 145(1)(b) of the Environmental Planning and Assessment Regulation 2000, which provides that a certifying authority must not issue a construction certificate for building work unless the proposed building will comply with the relevant requirements of the Building Code of Australia. That Code may require elements which do not exist in the building to be replaced under cl 4.2A(4)(a) (for example, suitable sanitary facilities: see cl FF2.1(a) of the Code). 35It is a small point but I do not think that the Council's submission is accurate in characterising cl 4.2A(4)(a) as an exception to the development standard in subclause (3). The latter is concerned with the situation where there is no dwelling house on the land; whereas the former is concerned with the opposite situation where there is a dwelling house on the land. Therefore it seems to me that subclause (4)(a) is a stand alone development standard, rather than an exception to subclause (3). 36It follows that development consent may not be granted to the DA in the present case. 37If I am in error, there is a question which the Council raises, overlapping with question 2, whether cl 4.2A(4)(a) only permits consent to be granted to the DA to the extent that it proposes replacement of existing elements of the Building. Although the DA is largely concerned with replacement of existing elements of the Building, it does extend to the provision of four elements which do not presently exist: a kitchen, toilet, provision of water and electrical connections. The Council originally submitted that cl 4.2A(4)(a) only permits replacement of existing elements and therefore does not permit consent to those four elements. The submission was founded upon the word "replace" in that clause. Ultimately, the Council submitted that (a) cl 4.2A(4)(a) only permits the replacement of existing elements where the existing dwelling house is so characterised by reason of someone using it as a domicile thus bringing it within the definition of "dwelling"; and (b) that if it was a dwelling house because it otherwise satisfied the definition, then the clause would not be limited to replacement of the existing elements. This distinction seems to me to be arbitrary. I do not accept the Council's submission in either its original or ultimate form. 38In my opinion, cl 4.2A.4(a) is not limited to the replacement of existing elements. Several considerations support this conclusion. First, in my view, as stated earlier, the word "replace" in subclause (4), and the word "replacement" in the objective in subclause (1)(b), is intended to indicate that consent cannot be given to an additional dwelling house, not that only the same elements can be replaced. Secondly, cl 4.2A(4)(a) is concerned with consent to the "erection" of a dwelling house. The extended meaning of "erection of a building" in s 4(2)(b)(i) of the EPA Act includes not only rebuilding of a building but "the making of alterations to, or the enlargement or extension of, a building". Thus, the clause permits development consent for the alteration, enlargement or extension of a dwelling house where it is intended only to replace the existing dwelling house. The concepts of alteration, enlargement and extension in this context suggest that additional elements may be included. 39Thirdly, cl 4.2A(4)(a) is concerned with consent to the erection of a "dwelling house". In my view, that means a dwelling house with elements which today are regarded as characteristic of a dwelling house - including the four elements in the present case which the Council contends fall outside the scope of the clause. A dwelling house to be replaced may have been built in the nineteenth century when characteristic modern elements, such as electricity or an inside toilet were missing, or over the years an element, such as a kitchen may have been swept away or converted to another use. In my view, it is highly unlikely that the legislative intention was that cl 4.2A(4)(a) would not permit a replacement dwelling house with such modern elements. 40For these reasons, I answer question 1 "No" and question 2 "Does not arise". It follows, as the parties agree, that the appeal should be dismissed.

ORDERS 41The orders of the Court are as follows: (1)The Court answers the questions for separate decision as follows: Question 1: Whether development consent may be granted to the development application pursuant to clause 4.2A of WLEP 2011 notwithstanding that multi dwelling housing is prohibited in the RU1 Primary Production zone in which the land is located. Answer: No Question 2: If yes to Question 1, whether power to grant development consent pursuant to clause 4.2A(4)(a) of WLEP 2011 is confined to the replacement of elements of "the existing dwelling house" such that the power to grant consent to the development application pursuant to clause 4.2A(4)(a) is confined to the replacement of the elements of the existing building described in Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 (5 April 2012). Answer: Does not arise (2)The appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2013