Association for Better Living and Education Inc v Wyong Shire Council

EX TEMPORE Judgment 1This is a contested motion for an order for preliminary determination of an issue as to whether a proposed development is prohibited in a particular zone under a planning instrument. 2The proceedings are a Class 1 merits appeal against the respondent Council's refusal of a development application for drug and alcohol rehabilitation services within existing buildings on a site near Yarramalong. The site has an area of approximately 12.5 hectares. Relevantly, it is zoned partly 1(a) (Rural Zone) and partly 7(a) (Conservation Zone) under the (now repealed but relevant) Wyong Local Environmental Plan 1991 (LEP). The existing buildings are located near each other. Some of the buildings are in the 1(a) zone and the rest are in the adjoining 7(a) zone. The applicant contends that under the LEP the proposed development is permissible with development consent in both zones as a "community facility", which cl 7 of the LEP defines as "a building or place owned or controlled by a public authority or a body of persons which may provide for the physical, social, cultural or intellectual development or welfare of the local community, but does not include a building or place elsewhere specifically defined in this clause". Alternatively the applicant recently contends that its use can be characterised as a "transitional group home", which is permissible with development consent in the 1(a) zone under the LEP and in the 7(a) zone under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP). Clause 42 of the SEPP includes the following definition: transitional group home means a dwelling: (a) that is occupied by persons as single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. 3Council contends that the proposed use answers neither of those alternative characterisations and is prohibited in the 7(a) zone. Council argues that it is not a "community facility" as defined because the services proposed to be provided in the subject buildings are not geographically limited to the "local" community but may be provided to anyone. 4In addition, there are merits issues involving expert evidence in the fields of town planning, flooding, rural fire risk assessment and planning, and civil engineering and building compliance. 5I am now dealing only with a contested motion by Council for an order for preliminary determination of the question whether the development is prohibited in the 7(a) zone. More particularly, the order sought is for preliminary determination of the following contentions: (a)the contentions set out in paragraph B1(1) of Part B of the Statement of Facts and Contentions filed by the respondent on 12 June 2014; and (b)the contentions set out in paragraph 1 of Part B of the Statement of Facts and Contentions in reply filed by the applicant on 23 June 2014. 6Paragraph B1(1) of Part B of Council's Statement of Facts and Contentions is as follows: B1 - Contentions that warrant the refusal of the application 1. The proposed development is prohibited and so there is no jurisdiction for the granting of consent to the subject development application. PARTICULARS 1.1 On 23 December 2013 the Wyong Local Environmental Plan 2013 ("WLEP 2013") commenced and the Wyong Local Environmental Plan 1991 ("WLEP1991") was repealed. 1.2 The subject development application was submitted to the Respondent on 8 October 2013. Clause 1.8A of WLEP2013 requires that the subject development application be determined as if WLEP2013 has not commenced. 1.3 Part of the site to which the subject development application relates was within the "Zone 7(a) Conservation Zone" under the WLEP1991, 1.4 Clause 10 of the WLEP1991 sets out a development control table for each of the zones prescribed in the WLEP1991. The development control table for the 7(a) zone provides that: 1.4.1 Development for the purpose of "home occupations" is permissible without consent; and 1.4.2 Development for any of the following purposes is permissible only with consent: Agriculture; bushfire hazard reduction; communications facilities; community facilities; dams; drainage; dual occupancy buildings; dwelling-houses; home businesses; nutrient control facilities; recreation areas; utility installations; and 1.4.3 Development for all other purposes is prohibited. 1.5 The proposed development is not for any of the following permissible purposes: Agriculture; bushfire hazard reduction; communications facilities; community facilities; dams; drainage; dual occupancy buildings; dwelling-houses; home businesses; home occupations, nutrient control facilities; recreation areas; utility installations. 1.6 The proposed development is prohibited. 7Paragraph 1 of Part B of the applicant's Statement of Facts and Contentions in Reply is as follows: 1. Permissibility The Applicant contends that the application is permissible with consent. Particulars a) The development is capable of being characterised as a "community facility" under Wyong Shire LEP 1991, which is a permissible use of the land in the 1(a) and the 7(a) zones. b) Alternatively, the use can be characterised as a "transitional group home" which is permissible in the 1(a) zone with consent pursuant to Wyong Shire LEP 1991 and permissible with consent under SEPP (Affordable Rental Housing) 2009 in the 7(a) zone; see McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125. 8The principles relating to the Court's discretion whether to order separate determination of a separate question were addressed by me in Hrsto v Canterbury City Council [2013] NSWLEC 195 at [4]-[6]: 4 In 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8, (2013) 195 LGERA 170 at [10], I summarised the principles to be derived from the authorities to guide the exercise of the Court's discretion whether to order the separate determination of a question 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. 5 This summary was adopted in Jenkins v Clarence Valley Council [2013] NSWLEC 161 at [15] per Pepper J. Subsequent to my decision in 820 Cawdor Road, the Court of Appeal delivered its decision in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, (2013) 195 LGERA 182. Macfarlan JA said at [10]: At the hearing before this court, it was common ground between the parties that strong reasons, such as an anticipated significant saving in time and expense in relation to the final hearing, needed to be shown to justify departure from the usual rule that all issues in a proceeding are to be determined at the one time... 6 Ward JA reviewed the authorities at [87] - [92], and said at [92]: ...it has also been recognised that if the separate determination of particular discrete issues may achieve economies in time and expense in the resolution of the proceedings or obviate the necessity for a trial on all issues then it may be both appropriate and desirable for there to be such an order... 9It emerged through discussion with counsel that the likely hearing time for the whole proceedings would be five days and for the proposed preliminary questions one day. The facts required to be established or assessed for the purpose of the preliminary hearing appear to be relatively short and largely, if not wholly, able to be agreed. 10The applicant opposes Council's motion for preliminary determination on four bases: (a)First, the Council contends that the proposed development is prohibited in the 7(a) zone, not in the 1(a) zone. Therefore, even if Council is successful in its contention of prohibition in the 7(a) zone, that would not necessarily be dispositive of the proceedings because the applicant may then amend its proposed development so that its use of buildings is confined to those in the 1(a) zone, with buildings in the 7(a) zone being limited to a permissible use such as caretaker facilities. I acknowledge that such an amendment might occur. However, preliminary determination of the prohibition issue in favour of Council will dispose of the application in its current form. It will also assist the applicant to decide whether it should to seek to amend. That in turn may also impact on merits issues. (b)Secondly, the applicant says that its recent alternative contention that the use can be characterised as a "transitional group home", which is permissible in both zones, is to be resolved by the application of earlier decisions of this Court, and is therefore appropriate for determination by a commissioner of the Court without any need for it to be determined by a judge. This submission assumes that if a separate question were to be ordered, then it would be determined by a judge. That is often what happens, but it is not necessarily the case. I do not think that it is a weighty consideration on the question of whether an order for a preliminary question should be made. (c)Thirdly, the applicant says that the estimated time of five days to hear the entire case may be substantially truncated if the parties were first directed to have a conciliation conference under s 34 of the Land and Environment Court Act 1979 because merits issue may fall away. I do not see much point in spending time and money on a s 34 conference if it is rendered futile by a determination that the development as proposed is prohibited. (d)Fourthly, in relation to the its recent alternative contention that the use can be characterised as a "transitional group home", the applicant suggested that if it were given an opportunity to provide Council with a proposed agreed statement of facts then it may be that Council would concede that the use can be characterised in that way and would therefore not continue to contend that it is not. During the hearing of the motion yesterday I took the view, with which the parties agreed, that I should give the applicant the opportunity of putting such a proposed statement of agreed facts to Council later that day, and stood the motion over to this morning so that Council could consider it overnight. Having done so, Council still contends that the use cannot be characterised as a "transitional group home" and that the proposed use in the 7(a) zone is prohibited. 11In my opinion, in these circumstances, the principles to which I have referred for guidance of the Court's discretion are satisfied such that an order should be made for separate determination of the prohibition contentions and directions given for evidence and submissions in relation thereto. There will be very substantial savings in time and costs if the preliminary questions are decided in favour of Council for that would mean the end of the proceedings as presently constituted. As discussed earlier, it will also assist the applicant to decide whether to amend the proposal so as to make it permissible, and this in turn may impact on merits issues. 12The orders of the Court are as follows: (1)Order that the following contentions be determined separately and in advance of any other contentions or questions in the proceedings: (a) the contentions set out in paragraph B1(1) of Part B of the Statement of Facts and Contentions filed by the respondent on 12 June 2014; and (b) the contentions set out in paragraph 1 of Part B of the Statement of Facts and Contentions in reply filed by the applicant on 23 June 2014. (2)The exhibits may be returned. (3)Directions in relation to evidence and submissions for the preliminary hearing in accordance with short minutes of order of today's date. 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: 11 July 2014