In these Class 1 appeal proceedings, by notice of motion filed 30 March 2022 the applicant, Brasson Investments Pty Ltd, seeks the following orders:
"1 The Applicant is granted leave pursuant to Part 28 Division 2 of the Uniform Civil Procedure Rules 2005 to raise two separate issues of law as follows:
a. Whether the proposed development is prohibited pursuant to clause 4.1A of the Lane Cove Local Environmental Plan 2009; and
b. Whether clause 4.1(4A) of the Lane Cove Environmental Plan 2009 applies to the proposed development.
…"
The notice of motion for a separate question proceeded before me today as Duty Judge. Lane Cove Municipal Council ('Council') opposes the application. The applicant reads without objection the affidavit of its solicitor, Alyce Edith Kliese, affirmed 29 March 2022, wherein Ms Kliese deposes to certain background matters concerning the refusal by Council of the applicant's development application DA85/2021 for a dual occupancy (attached) residential development and strata subdivision.
Ms Kliese deposes that the primary issue of law relates to the interpretation and application of cl 4.1A of the Lane Cove Local Environmental Plan 2009 ('LCLEP') concerning subdivision of dual occupancy developments, as outlined in Contention 2 of Council's statement of facts and contentions ('SOFAC') filed 14 March 2022; and that a secondary issue, detailed in Contention 1 of Council's SOFAC, relates to the interpretation and application of cl 4.1(4A) of the LCLEP concerning the minimum subdivision lot size for dual occupancy developments. In addition, the applicant also tendered a letter from Council dated 25 October 2021 communicating the reasons for the refusal of the development application.
The proposed development involves the construction of a dual occupancy (attached) residential development and strata subdivision. The proceedings, being proceedings to which s 34AA of the Land and Environment Court Act 1979 (NSW) ('Court Act') applies, are set down for a conciliation conference and hearing on 17 and 18 May 2022.
At the hearing of the motion today, Mr D W Robertson of counsel, appeared for the applicant and Ms A Foley, solicitor, appeared for Council. Both Mr Robertson and Ms Foley made careful submissions referring the Court to the facts of the matter and to the relevant legal principles.
The background is relatively clear from the material before the Court, and I simply note that the essence of the applicant's concerns relate to the proper construction of cll 4.1A and 4.1(4A) of the LCLEP. It would appear that Contention 2 regarding cl 4.1A would likely amount to a prohibition if the Court found in favour of Council's construction, and, similarly, it would appear that Contention 1 regarding cl 4.1(4A) would also amount to a prohibition and may be determinative absent a written request pursuant to cl 4.6 of the LCLEP.
In relation to the exercise of the discretion conferred by r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), I consider that the following propositions (with some interpolation) are of relevance.
First, it may be accepted that it is ordinarily appropriate that all issues in proceedings be disposed of at one time: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 ('Clune') at [5] (Johnson J); Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 ('Tallglen') at 141-142 (Giles CJ in Comm Div); Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5] (Brereton J).
I take this principle into account particularly in relation to the Court's Practice Note - Class 1 Residential Development Appeals (3 April 2018) which itself has received relatively recent consideration in a not dissimilar application concerning a small-scale residential development governed by s 34AA of the Court Act in Sciacchitano v The Council of the Municipality of Kiama [2019] NSWLEC 104, where Preston CJ of LEC noted, and I embrace, that there is an expectation that these types of proceedings will proceed expeditiously and the very nature of s 34AA proceedings is that they must first proceed to a conciliation and if conciliation is unsuccessful and is terminated, proceed immediately to hearing. As such, I accept that there is an expectation that all issues in proceedings governed by s 34AA of the Court Act will be dealt with at the same time, and that is set out clearly in the Practice Note at (71). It is clear that success in the present motion would result in the abandonment of the s 34AA conciliation conference and hearing on 17 and 18 May 2022.
The second principle is that the exercise of discretion to make an order for the determination of a separate question should be approached with an appropriate degree of care and caution because, "[i]t sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid": Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436] (Callinan J); Tallglen at 141-142. I again note that the necessary consequence of this matter proceeding to a separate question is that there would be a delay of the s 34AA conciliation conference and hearing to which I have previously referred.
The third principle, is that since the passage of the Civil Procedure Act 2005 (NSW) ('CP Act'), "the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously": Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6] (Brereton J); Clune at [6] (Johnson J).
The fourth principle is that an order for separate question is likely to be appropriate where it can be clearly seen that it will facilitate the just, quick and cheap resolution of the real issues in the proceedings so as to give effect to s 56 of the CP Act: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 ('820 Cawdor') at [10(c)] (Biscoe J); Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7] (Einstein J).
I am of the view that the material presently relied upon being the affidavit of the applicant's solicitor, Ms Kliese, is not sufficient to convince me that there will be a sufficient or material saving in terms of both cost and time if the matter was to proceed to a separate question. Although I formed a different view in R.I.G Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2020] NSWLEC 155 ('R.I.G Consulting'), to which my attention has been drawn, the present case differs in that there is no evidence before the Court of the precise amount of time that would be saved or the amount of costs that would or may be saved, whereas in R.I.G Consulting, both parties had consented to the determination of a separate question, agreed to a statement of facts, and provided precise evidence of the savings of costs anticipated. It is, in my view, insufficient that there is a view of a legal practitioner that there may be a significant saving in terms of both cost and time.
Moreover, while there may be some savings to the applicant, there is no evidence before the Court to indicate what those savings are and whether, in relation to a relatively small-scale residential development, that such savings should be a matter that would influence the Court in this application. The consequent days lost in the Court's timetable and the allocation of judicial and/or commissioner time is a matter of importance. In these circumstances, I am not of the view that the evidence is sufficient to satisfy me that that which is otherwise to be determined is not able to be properly determined in the ordinary course of conciliation and hearing.
I also note that the question sought to be determined separately, is the "type" of question that is before consent authorities (and this Court on appeal) on a daily basis in relation to many development applications. Moreover, I note that if an appeal involves a discrete question of law, it is the Court's usual practice that a commissioner with legal training is allocated to hear the matter.
I also note that the decision to order a separate question is ultimately one for the Court and, in those circumstances, the attitudes of the parties are relevant to the exercise of the discretion to make an order: Cruden v Sae-ung [2021] NSWSC 1070 at [41(p)] (Hallen J); TVW Enterprises Ltd v Duffy, M.J. [1985] FCA 109 at [8] (Toohey J). I note that Council, the relevant consent authority and the respondent in this matter, for the reasons ably put by Ms Foley, opposes the application. I take that position into account while forming my own view in relation to the matter, although it is fair to say that my views include those matters which were otherwise put to the Court on behalf of Council.
For those reasons, I find that it is inappropriate to order a separate question, and I dismiss the notice of motion.
The Court orders:
1. The applicant's notice of motion filed 30 March 2022 is dismissed.
[2]
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Decision last updated: 07 June 2022