Blackmore Design Group Limited v Manly Council

The Proposed Development 5The proposed development is located at 9-11 Victoria Parade, Manly ("the site"). It is described in the DA as: Proposed Mixed-Use Development Including (29) apartments, (1) Retail & Basement Car Parking for (6) vehicles & (1) Car stacking system for (22) vehicles. Demolition of two existing properties on-site. Strata subdivision plus stratum subdivision. 6The proposed development is said to involve the demolition of existing structures on the site and the construction of a six storey building containing: (a)one retail premises of 80m2 on the ground floor; (b)29 apartments; (c)basement car parking with 28 spaces; (d)landscaping; and (e)strata and stratum subdivision. 7In a Statement of Agreed Facts accompanying the council's application, further detail of the proposed development was given as follows: (a) A basement car park with 28 car parking spaces, including 2 car stackers (one for 14 cars and the other for 8 cars) and 5 visitor car parking spaces. The basement includes a loading bay, toilet and hand basin, storage areas for 6 of the single bedroom apartments and 6 of the two bedroom apartments, and a fire escape leading to Victoria Parade. (b) The ground floor contains a retail area of 80m2, entry to the residential complex, 2 single bedroom apartments, 1 single bedroom apartment with study alcove, a garbage area for 21 garbage bins, a lift which services the basement and upper floor levels, fire escape, a driveway entry and ramp to the basement car park, a maintenance entry to the western light well, private courtyard gardens, and detention tanks located on the eastern side. (c) The first floor contains 2 single bedroom apartments, 2 single bedroom apartments with study alcove, 1 two bedroom apartment with study alcove, and 1 lower level of a dual level single bedroom apartment. (d) The second floor has 1 single bedroom apartment, 2 single bedroom apartments with study alcove, 1 two bedroom apartment, 1 two bedroom apartment with study alcove, and 1 upper level of a dual level single bedroom apartment. (e) The third floor contains 2 single bedroom apartments, 2 single bedroom apartments with study alcove, 1 two bedroom apartment with study alcove, and 1 lower level of a dual level single bedroom apartment. (f) the fourth floor comprises 1 single bedroom apartment, 2 single bedroom apartments with study alcove, 1 two bedroom apartment with study alcove, 1 upper level of a dual level single bedroom apartment, and 1 lower level of a dual level single bedroom apartment with study alcove. (g) The fifth floor has 2 single bedroom apartments, 2 single bedroom apartments with study alcove, and 1 upper level of a dual level single bedroom apartment. (h) All the apartments have private balconies. (i) The roof is proposed to contain the lift overrun and 10 skylights. 8The site is zoned B2 - Local Centre pursuant to the Manly Local Environmental Plan 2013 ("the LEP"). That zone provides for the following development (emphasis added): Zone B2 Local Centre 1 Objectives of zone · To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. · To encourage employment opportunities in accessible locations. · To maximise public transport patronage and encourage walking and cycling. · To minimise conflict between land uses in the zone and adjoining zones and ensure amenity for the people who live in the local centre in relation to noise, odour, delivery of materials and use of machinery. 2 Permitted without consent Home-based child care; Home occupations 3 Permitted with consent Amusement centres; Boarding houses; Boat sheds; Car parks; Child care centres; Commercial premises; Community facilities; Educational establishments; Entertainment facilities; Environmental protection works; Flood mitigation works; Function centres; Group homes; Health consulting rooms; Home businesses; Home industries; Hostels; Information and education facilities; Medical centres; Passenger transport facilities; Recreation facilities (indoor); Registered clubs; Respite day care centres; Restricted premises; Roads; Service stations; Shop top housing; Signage; Tourist and visitor accommodation; Veterinary hospitals; Water recycling facilities; Water supply systems 4 Prohibited Water treatment facilities; Any other development not specified in item 2 or 3 9"Shop top housing" is defined in the Dictionary of the LEP in the following terms: shop top housing means one or more dwellings located above ground floor retail premises or business premises. Note. Shop top housing is a type of residential accommodation-see the definition of that term in this Dictionary. 10The council refused the DA. One of the reasons for doing so as stated in the notice of determination was because the proposed use of the site was prohibited under the LEP. 11It was not a matter of dispute that in land zoned B2 - Local Centre, "shop top housing" is permissible with consent. Equally, it was uncontentious that if the development is not properly characterised as "shop top housing", then the proposed use is prohibited. 12On appeal, the council maintains the position that, as constituted in the DA and in the accompanying plans, the proposed development is not "shop top housing", and is therefore prohibited. 13Blackmore asserts the contrary view. It relies, in this regard, on the fact that the proposed development is defined as "shop top housing" in the Statement of Environmental Effects prepared by its planning consultant.

Power to Order a Separate Question 14Rule 28.2 of the Uniform Civil Procedure Rules 2005 ("the UCPR") provides that a "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". 15In making such an order, the Court must have regard to the overriding purpose rule contained in s 56 of the Civil Procedure Act 2005 ("the CPA"). 16The legal principles applicable to the exercise of the Court's discretion to order the determination of a separate question were summarised by Jagot J in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; 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]). The principles were recently usefully reformulated and distilled by Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 as follows (at [10]): (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. 17These principles have been endorsed and applied by this Court on numerous occasions (see, for example, Hunter v Wyong Shire Council [2012] NSWLEC 250 at [12]-[15]; Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 at [11]; Wollongong City Council v Vic Vellar Nominees Pty Limited [2011] NSWLEC 138 at [19] and Reysson v Roads and Traffic Authority [2011] NSWLEC 153 at [10]). 18More recently in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182, the Court of Appeal restated the applicable legal principles in the following way (at [87]-[92]): 87 In Idoport Pty Limited v National Australia Bank Limited (15) [2000] NSWSC 1215, Einstein J (at [7]) summarised the applicable principles when considering an application for the separate determination of an issue made under the former Part 31 r 2 of the Supreme Court Rules (those principles being equally applicable to the exercise of discretion under rule 28.2 of the Uniform Civil Procedure Rules: Pioneer Park Pty Limited (in liquidation) v ANZ Banking Group Limited [2005] NSWSC 832; Matrix Film Investment 1 Pty Limited v Alameda Films llc and Warner Brothers Entertainment and Pictures Inc [2007] NSWSC 523). In so doing, his Honour noted, among other things, that the court is enjoined to give effect to the overriding statutory purpose provided for under the applicable court rules and that the court begins with the proposition that it is ordinarily appropriate that all issues in the proceedings should be disposed of at the one time (Tallglen v Pay TV Holdings Pty Limited (1996) 22 ACSR 130). 88 One set of circumstances in which his Honour noted that the separate determination of an issue might prove to be an appropriate procedure was "where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy" (his Honour there citing CBS Productions Pty Limited v O'Neill [1985] 1 NSWLR 601 at 606 per Kirby P and Dunstan & Simmie & Co Pty Limited [1978] VR 670 at 671 per Young CJ and Jenkinson J). 89 Pausing there, it was not suggested in the above cases that it is necessary (for the power to state a separate question to be exercised) that the determination of the separate question be finally dispositive of the litigation or of one or more issues in the litigation; rather, it was contemplated that it might be sufficient if it would substantially narrow the field of litigious controversy (requiring a quantitative assessment to be made). Disposition of a step necessary for the determination of one or more issues in the proceedings might well have the effect in a particular case of substantially narrowing the field of litigious controversy. Thus, while it is submitted for Allandale that, at most, the separate question would resolve a potential step in the determination of the relevant issue in the compensation proceedings, that of itself does not preclude the exercise of the power under Rule 28.2.) 90 Einstein J also set out various circumstances in which he considered that the separate determination of an issue would rarely be seen to be an appropriate procedure (to some of which reference was made by Mr Lancaster SC, Senior Counsel for Allandale), those including where there are intertwined issues of fact or law (such that the determination of the separate question would not have any substantial effect on the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation) and where there is a possibility that the resolution of the separate issue will not finally determine the issue but merely result in an appeal from that decision in relation to that separate issue creating what his Honour referred to as a multiplicity of proceedings, interruptions to the court and undesirable fragmentation of the proceedings. 91 In various authorities, caution has been advocated in the exercise of such a power (such as Perre v Appand Pty Ltd (1999) 198 CLR 180 at [436] per Callinan J; Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at [24] per Santow J, as his Honour then was; Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [112] - [113] per Young CJ in Eq, as his Honour then was). In Idoport, Einstein J noted the reason for such caution in the following passage: The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings ... 92 However, 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 ... 19The Court of Appeal went on, with respect to the exercise of the discretion to order a separate question, to observe that (at [95]-[96]): 95 The reference to a "critical" matter seems to me to be a reference to something that is or may be necessary for the determination of a particular question in the proceedings (as opposed to an incidental or ancillary issue). If the separate question is or may be dispositive of a relevant issue in the proceedings (or even dispositive of a discrete step in the process of determining a relevant issue in the proceedings), then if there is a reasonable prospect of a significant saving of costs by its determination in advance, this would (among others) be an appropriate factor to take into account when determining whether to exercise the discretion to order a preliminary hearing on the separate question. 96 ... it is important to note that what is being carried out in the exercise of the discretion is a balancing exercise as to the likely utility in the expeditious and cost-effective case management of the proceedings, having regard to the interests of justice as between the parties, of posing the question for separate determination in advance of the hearing. ... 20In summary, therefore, cogent reasons, such as anticipated savings in time and expense in relation to the final hearing, should be shown to justify departure from the orthodox position that all issues in a proceeding are to be determined at the one time (Allandale at [10], [92] and [95]-[96]). 21Where the resolution of the question would be dispositive of the litigious controversy, or would substantially narrow the field of controversy, this will favour the making of an order for a separate question. This is not a necessary circumstance, but may be a sufficient one (Allandale at [88]-[89] and [95]). 22Conversely, circumstances in which separate determination of an issue may not be appropriate include: where there are intertwined issues of fact or law such that the determination of the separate question would not have any substantial effect on the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation; or where there is a possibility that the resolution of the separate issue will not finally determine the proceedings (Allandale at [90]-[91] and [94]).

An Order for the Determination of a Separate Question Should be Made 23The council relied on an affidavit of Mr Michael Winram sworn 10 September 2014 in support of its application. In his affidavit Mr Winram noted that the Class 1 application filed by Blackmore includes two sets of plans and that the council raises 17 contentions in its Statement of Facts and Contentions filed in the Court. 24The separate question contained in the council's application relates to contention 1 of the council's Statement of Facts and Contentions in respect of the characterisation and permissibility of the proposed development. Contention 1 stipulates, consistent with the notice of determination of the DA, that the proposed development is prohibited in the B2 - Local Centre zone, and that therefore, the DA must be refused by the Court as the consent authority. In particular, the contention states that the proposed development is not "shop top housing" but is more properly characterised as a mixed use development including a "residential flat building" with "commercial premises" on the ground floor, that is prohibited within the zone. 25Mr Winram notes that should the matter proceed to a s 34 conciliation conference, or to a hearing, the council would need to prepare for and adduce evidence on all 17 contentions. This would include evidence with respect to planning, urban design, heritage, parking and access. The council has hence already engaged three external consultants in the fields of planning, traffic and heritage. 26Mr Winram anticipates that the council's application for a separate question will take half to one day to be heard, whereas if the matter were to proceed to a hearing, it would require four to five days of hearing time. He anticipates that there will be no facts in dispute for the purposes of determining the separate question application. 27Blackmore does not agree. It submits that the proposed separate question will not be determinative of the proceedings, even absent its application to amend, because it asserts existing use rights on the relevant site with respect to a mixed use development. 28This contention has not been made elsewhere by Blackmore. It is the first occasion that it has been raised. 29Blackmore submitted that the council's application was premature insofar as it had been filed at the same time as the council filed its Statement of Facts and Contentions. That is to say, Blackmore was denied the opportunity of raising with the council its contention that it would be relying upon existing use rights. 30The existing use rights argument is likely, Blackmore further submits, to be fact-intensive and could involve a contest between the parties' witnesses. 31These matters thus suggest that the exercise by the Court of its discretion to order a separate question would, having regard to the legal principles articulated above, be inappropriate. 32In addition, Blackmore draws to the Court's attention that there is an extant amendment application that seeks to put "beyond any doubt" whether the proposed development, properly characterised, is "shop top housing". Although that application is not presently before the Court, the Court must nevertheless have regard to its existence. Once again, according to Blackmore, this reinforces the premature nature of the council's application. 33In my opinion, however, Blackmore's arguments are insufficient to deny the council the opportunity of having the separate question it raises determined before all other issues. First, although there is force in the observation by Blackmore that the council has acted with regrettable haste in filing its notice of motion at the same time as its Statement of Facts and Contentions, thereby denying Blackmore the opportunity of raising the issue of existing use rights, Blackmore has nevertheless been aware since the council's refusal of the DA that the council believed that the proposed use of the site was prohibited within the zone. No attempt has been made by Blackmore, until today, to raise the issue of existing use rights. 34Significantly, in this regard, Blackmore's purported reliance on existing use rights is not verified by any affidavit evidence. It is also not reflected in the DA, including in the accompanying plans. Moreover, I accept the submission of the council that if Blackmore were to rely on an existing use rights argument as claimed, it would need to reframe its DA given the different footprint contained therein and the proposed intensification and enlargement of use contained in that application. A question would then arise as to whether or not the amended DA would in fact constitute a fresh development application. 35Second, although the Court is mindful of the amendment application that Blackmore has filed, if the separate question is determined adversely to the council this would arguably obviate the need for the Court to hear and determine Blackmore's application. Alternatively, resolution of the preliminary question, if decided in favour of the council, could assist Blackmore in refining its application to amend the DA. 36In my view, it is highly likely that the determination of the separate question proposed by the council, even if it transpires not to be wholly dispositive of the proceedings, will nonetheless result in substantial savings in time and costs to both parties over the course of the litigation. 37In these circumstances, the Court is inclined to order that the question posed by the council be separately heard and determined. To do so would be in conformity with the dictates of s 56A of the CPA.

Orders 38Order 1 of the council's notice of motion filed 3 September 2014 is made, namely, that the Court separate and determine the following question for decision by a judge or commissioner of the Court: Whether the development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within the Zone B2 - Local Centre pursuant to the provisions of the Manly Local Environmental Plan 2013. 39The matter is therefore listed before the Registrar on 19 September 2014 for further directions.

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: 19 September 2014