Commitment Pty Ltd v Georges River Council

Land and Environment Court (NSW)|2022-07-13|Before: Pepper J

Commitment Seeks an Order for a Separate Question

By amended notice of motion filed at the hearing on 13 July 2022, the applicant in Class 1 proceedings, Commitment Pty Ltd ("Commitment"), seeks an order that the following four part separate question be heard and determined separately ("separate question"): 1. whether on the true construction of cl 1.8A of the Georges River Local Environmental Plan 2021 ("the GRLEP"), the development application was made before the commencement of the GRLEP; 2. if the answer to question (a) is "yes", whether the GRLEP applies to the subject development application; 3. whether, on the true construction of cl 1.7 of the Georges River Development Control Plan 2021 ("the GRDCP"), the development application was made before the commencement of the GRDCP; and 4. if the answer to question (c) is "yes", whether the GRDCP applies to the subject development application.
The application is supported by the respondent, the Georges River Council ("the Council").
In support of the motion, the parties relied upon a further agreed statement of facts filed in Court on 13 July 2022 and the statement of Lindsay Fletcher, Commitment's consultant town planner, dated 5 July 2022 ("the Lindsay statement").
For the reasons explained below, the hearing of the separate question should be ordered.

The Development Application

On 24 September 2021 the DA was submitted to the NSW Planning Portal (PAN-149030).
On 28 September 2021 the Council sent a letter to Commitment purporting to reject the DA the subject of PAN-149030 for failing to provide the minimum information required for assessment of an application.
Also on 28 September 2021 Commitment's planner sent a letter to the Council advising that the minimum information required for assessment of an application had been submitted to the NSW Planning Portal, and requesting advice on the required Council DA fees.
On 30 September 2021 the DA was submitted to the NSW Planning Portal (PAN-150957).
Also on 30 September 2021 Commitment's planner, on behalf of Commitment, sent an email to an officer of the Council requesting further information including the required DA fee.
On 8 October 2021 the DA fee was paid.
On 28 October 2021 the Council sent an "Acknowledgement of Development Application" letter to Commitment.

Relevant Planning Framework

On 8 October 2021 the GRLEP was published on the NSW legislation website. Clause 1.1AA of the GRLEP provides: This Plan commences on the day on which it is published on the NSW legislation website.
The GRLEP applies to the land identified on the Land Application Map, which includes the site.
The Hurstville Local Environmental Plan 2012 ("HLEP") and the Hurstville Development Control Plan No 1 ("the HDCP") applied to the site immediately before the commencement of the GRLEP.
Clause 1.8 of the GRLEP states: (1) All local environmental plans and deemed environmental planning instruments applying only to the land to which this Plan applies are repealed. Note - The following local environmental plans are repealed under this provision - Hurstville Local Environmental Plan 2012 Kogarah Local Environmental Plan 2012 (2) All local environmental plans and deemed environmental planning instruments applying to the land to which this Plan applies and to other land cease to apply to the land to which this Plan applies.
Accordingly, on 8 October 2021 the HLEP was repealed and on and from that date no longer applied to the site.
Critically, cl 1.8A of the GRLEP says (emphasis added): 1.8A Savings provisions relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The GRDCP came into effect on 8 October 2021. Clause 1.2 of the GRDCP states: This DCP was adopted by Council on 24 March 2021 and came into effect on 8 October 2021.
Clause 1.6 of the GRDCP provides that (emphasis added): The provisions of this DCP must be read in conjunction with Georges River Local Environmental Plan (LEP) 2021. Where there is any inconsistency between this DCP and LEP, the provisions of the LEP prevail. This DCP replaces the following DCPs and policies applying to the former City of Hurstville LGA and former City of Kogarah LGA. This includes: • Hurstville Development Control Plan 1
Clause 1.7 of the GRDCP states (emphasis added): 1.7 Savings Provision If an application has been made before the commencement of the DCP in relation to land to which the DCP applies, and the application has not been finally determined before that commencement, the application must be determined as if the DCP had not commenced. All applications received after the commencement date of an amendment to the DCP are subject to the DCP as amended.
Clause 1.8 of the GRDCP says: This DCP applies to all land within the Georges River Council Local Government Area, except those areas identified in Section 1.6.
The site is not identified in Section 1.6 of the GRDCP.
Clause 50 of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation") as in force at the time the DA was submitted to the NSW Planning Portal states (emphasis added): 50 How must a development application be made? (cf clause 46A of EP&A Regulation 1994) (1) A development application must - (a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, And… (d) be lodged on the NSW planning portal. … (9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.
It was not in contention that: 1. the GRLEP applies to the site and to development applications made on the day of and from the commencement of that instrument; 2. the GRDCP applies to the site and development applications made on and from the commencement of the GRDCP; 3. any development application relating to the site made before the commencement of the GRLEP and the GRDCP are subject to the provisions of the HLEP and the HDCP; and 4. the DA was prepared having regard to the development standards and controls contained in the now repealed HLEP and HDCP.
Both the savings provisions contained in cl 1.8A of the GRLEP and cl 1.7 of the GRDCP save an application that "has been made" before commencement of those instruments.
Commitment submitted that the phrase "has been made" in the savings provisions has a meaning distinct from the meaning of the term "lodged" pursuant to cl 50(9) of the EPA Regulation in force at the date the DA was submitted to the NSW Planning Portal. Clause 50(9) of the EPA Regulation states: (9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.
Commitment also submitted that the DA was "made" on 30 September 2021, and was "lodged" on 8 October 2021. Accordingly, the DA is saved by cl 1.8A of the GRLEP and cl 1.7 of the GRDCP.
By contrast, the Council argued that pursuant to cl 50(9) of the EPA Regulation, an application has only been "made" when it is "lodged", and accordingly, the DA was not "made" prior to the commencement of the GRLEP and the GRDCP.

The Legal Issue in Dispute

In summary, the parties differ as to when the DA was "made" for the purposes of the savings provision in cl 1.8A of the GRLEP and cl 1.7 of the GRDCP.
Commitment says that the: 1. DA was "made" before the commencement of the GRLEP and is therefore saved by cl 1.8A of the GRLEP; 2. DA must be determined as if the GRLEP had not commenced, and therefore; and 3. HLEP and the HDCP apply to the DA.
In reply, the Council says that: 1. the DA was not "made" before the commencement of the GRLEP and is therefore not saved by cl 1.8A of that instrument; 2. on the date that the DA was made, the GRLEP applied to the site; and 3. the GRLEP and the GRDCP apply to the DA, and therefore, the HLEP and the HDCP do not.

The Class 1 Appeal

On 15 February 2022 Class 1 proceedings were commenced by Commitment, appealing the Council's deemed refusal of the DA.
On 12 April 2022 the Council filed and served its Statement of Facts and Contentions ("SOFAC"). The SOFAC assesses the DA against the GRLEP and the GRDCP for the reasons set out above. It contends that: 41. Georges River Local Environmental Plan 2021 (GRLEP) was published on the NSW Government Gazette website on 8 October 2021. According to cl1.11AA, the Plan commenced on the day it was published. GRLEP supersedes the previous environmental planning instrument that applied to the Site, Hurstville Local Environmental Plan 2012 (HLEP). 42. The GRLEP contains a savings provision in clause 1.8. However, as the Application was lodged on 8 October 2021, which was not before the commencement of the Plan, the application is not 'saved' under the provisions of the GRLEP and as such the GRLEP applies. 43. GRLEP applies, as s24 of the Interpretation Act 1987 states that "If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day." Section 5(6) of the Act confirms that this rule also applies to the making of an environmental planning instrument as well as a statutory rule.
The Council's position on the applicability of the GRLEP forms the basis for contentions 1, 2, 3, 5, 8 and 10 in the SOFAC. In particular, at paragraphs 69 to 70 of the SOFAC, the Council states that the GRDCP is the applicable instrument governing the DA. This assertion forms the basis for contentions 1, 2, 3, 5, 8 and 10.
The applicability of the different legislative instruments has significant implications for both assessment and determination of the DA in circumstances where the Council's SOFAC has been prepared on the basis that the GRLEP and the GRDCP are the instruments that apply to the DA. The following contentions have been drafted on the basis of this position: 1. contention 1: the proposal presents a poor streetscape outcome; 2. contention 2: the landscaping on the site does not comply with the landscape area development standard in the GRLEP and is inadequate; 3. contention 3: the building bulk and form is inappropriate; 4. contention 5: the inadequate consideration of traffic and parking; 5. contention 8: there is inadequate consideration of water disposal; and 6. contention 10: there is insufficient information.
The differences between the GRDCP and the HDCP, and between the GRLEP and the HLEP (as relevant to the proceedings), are further outlined below: HDCP GRDCP DS5.1 The maximum number of children in an R2 density residential zone is 40 No control. DC6.4 Front setback in R2 zone is 5.5 Part 6.1, Section 3 Controls Front Setbacks 1 i. 4.5m to the main building wall / facade; D6.5 side setbacks are 0.9m Part 6.1, Section 3 Controls Side and Rear Setbacks 2 ii. 1.2 metres for ground and first floor for lots greater than 12.5 metres in width D6.6 rear setbacks are 3m Part 6.1, Section 3 Controls Side and Rear Setbacks 2 (1). 15% of the average site length (in this case 5.0775) or 6 metres whichever is the greater. Therefore, 6 metres. No control. Part 6.1, Section 3.10 requirement for compliance with provisions of Georges River Council's Stormwater Management Policy 2020. DS7.1 1 space for every 2 staff members Part 6.1, Section 3.13 DS7.2 Parking - 1 space per 10 children (ie 6 for this proposal) 1 space per 2 staff = 12 1 space per 5 children so 12 in total = 16 HLEP GRLEP Clause 6.3 Stormwater management - in deciding whether to grant consent the consent authority must be satisfied that: (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and No control. (b) includes, if practicable, on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development's reliance on mains water, groundwater or river water, and (c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact, and (d) is designed to minimise the impact on public drainage systems. No control. Clause 6.12(5)(f) Minimum Landscaped areas 10%. Proposal is 5.7%. No control. Clause 6.10 Design Excellence which contains a 'must not grant consent' provision unless the consent authority considers the development exhibits design excellence.

The Council received three submissions to the DA during the notification period. Those submissions raised concerns about traffic and parking, setbacks and landscaping, all of which are fundamental to the assessment of the DA and are subject to significantly different controls under the different planning instruments which the parties say apply to the site and the assessment of the DA.
If the GRLEP is the environmental planning instrument applying to the development, then it is not in dispute that the DA does not meet the development standard contended in cl 6.12(5)(f). Accordingly, a cl 4.6 request will be required to vary that development standard. Because the DA has been assessed under the HLEP, no request has been prepared.
The DA has not been designed against the design excellence provisions in cl 6.10 of GRLEP and the consent authority cannot grant consent unless it considers that the development exhibits design excellence. Contentions 1, 2 and 3 of the SOFAC all relate to design excellence standards and set out the Council's position that the DA does not meet design excellence standards in accordance with cl 6.10 of GRLEP.

Applicable Legal Principles

The power to order a question to be decided separately is contained in r 28.2 of the Uniform Civil Procedure Rules 2005, which provides that: 28.2 Order for decision 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.
The relevant considerations regarding whether to order a separate question were most recently summarised by this Court in CK Design Pty Ltd v Penrith City Council [2022] NSWLEC 82 (at [29]-[32]). Those principles, and the cases cited therein, are adopted and applied to these proceedings without repetition.

Joint Submissions of the Parties

The parties jointly submitted that if the determination of the separate question is made in favour of Commitment, then the field of controversy will be substantially narrowed and there is a strong prospect that the parties will be able to agree upon the resolution of the proceedings before or during the course of the s 34 conciliation conference.
Whereas, if the determination of the separate question is made in favour of the Council, compliance with the following development controls of the GRLEP and the GRDCP will not, according to the Lindsay statement, be physically possible at the site, namely: 1. the provision of at least 10% of the site as landscaped area pursuant to cl 6.12 of the GRLEP; and 2. the provision of 16 onsite carparking spaces pursuant to cl 3.13 of the GRDCP.
Accordingly, if the determination of the separate question is made in favour of the Council, Commitment stated that it would discontinue the proceedings and withdraw the DA, thereby disposing of the proceedings in their entirety.
The differences between the application of the various environmental planning instruments also have important cost and time consequences. If the separate question is not heard beforehand the contingent possibility that either the GRLEP and the GRDCP or the HLEP and the HDCP may apply will substantially affect the conduct of the proceedings as outlined above.
An initial consequence will be the impairment of the utility of the s 34 conciliation conference. In this case, the ability of the parties to productively engage in conciliation will be limited because the legislative framework to be used for the assessment of the DA is not agreed. Further, even if agreement is reached, the disagreement about the differing assessment regime casts doubt on whether any agreement could be given effect to by the Court.
Thus not only will the unresolved separate question greatly reduce, if not eliminate, any prospects of settlement prior to hearing, it will also impair the opportunities for the parties to narrow the issues during, and following, the s 34 conciliation conference. This is contrary to the Court's conciliation processes which seek to give effect to the overriding purpose of civil litigation contained in s 56 of the Civil Procedure Act 2005 ("the CPA").
If the matter is not able to be resolved as a result of conciliation, a further consequence is that the parties, through their respective experts and legal representative, will be required to duplicate the merits assessment addressing both the GRLEP and the GRDCP and the HLEP and the HDCP.
Further, the Council's contentions have been prepared solely on the basis that the GRLEP and the GRDCP apply to the DA. Each party agreed that if the Council was not successful on the determination of the separate question, the contentions would need to be redrafted to have regard to the HLEP and the HDCP.
The conduct of the hearing will also itself be made more complex. This is not only due to the legal submissions about which local environmental plan and development control plan applies, but because the parties will be required to adduce evidence and make submissions contingently as to the merit conclusions that should be found by the Court in the event either statutory regime is found to apply.
If the separate question is ordered, the disagreement and uncertainty as to the application of the GRLEP and the GRDCP and the HLEP and the HDCP will be resolved at an early state in the proceedings. This will be consistent with the achievement of the just, quick and cheap resolution of the real issues in the proceedings (s 56 of the CPA) because: 1. the parties can potentially reach agreement in conciliation, which is a purpose and benefit of the Court's conciliation processes; 2. even if agreement is not reached, the potential for issues to be narrowed will be greater if the parties are approaching the development under a single assessment regime; 3. the preparation of expert evidence is not made more complicated and costly; and 4. the conduct of the hearing is reduced in scope, complexity and duration.

The Separate Question Should Be Ordered

Applying the principles referred to above and having regard to the submissions, with which the Court agrees, and evidence put to the Court, it is appropriate to order the separate question.
First, the separate legal question is arguable and is clearly defined requiring no expert evidence, no determination of credit, and no voluminous documentary evidence. The determination of the separate question ought not require further evidence beyond that presently agreed to by the parties (Johnson Property Group Pty Limited v Lake Macquarie City Council [2020] NSWLEC 4 at [47]).
Second, if the Court determines that the DA is subject to the GRLEP and the GRDCP that is, if the separate question is answered in favour of the Council, this will be dipositive of the proceedings (820 Cawdor Road Pty Ltd v Wollondilly Shire Council (2013) 195 LGERA 170; [2013] NSWLEC 8 at [10]).
The merit contentions will require the preparation of considerable costly expert evidence which would be wasted if the GRLEP and the GRDCP applies. It would defy common sense and be contrary to the spirit, if not the text, of the overriding purpose contained in s 56 of the CPA not to order the determination of a separate question in these circumstances.
If the Court determines that the GRLEP and the GRDCP does not apply, the hearing of the separate question nevertheless has utility because it substantially narrows the field of legal and evidential controversy between the parties (Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [89]).
The narrowing of the issues in dispute will not only facilitate, but are central to, settlement negotiations between the parties at the s 34 conciliation conference.
Third, the resolution of the separate question will involve significant savings in costs and time for both parties in the preparation of the s 34 conciliation conference and the substantive hearing. The Court would also incur savings by reducing the length and complexity of the substantive hearing. This is notwithstanding that it is ordinarily preferable that all issues in a proceeding be disposed of at one time (Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50 at [14]).
For these reasons, I am satisfied that the order for a separate question should be made.

Orders

The Court therefore makes the following orders: 1. pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, leave is granted for the following separate question of law to be determined by the Court ("the separate question"): 1. whether on the true construction of cl 1.8A of the Georges River Local Environmental Plan 2021 ("the GRLEP"), the development application was made before the commencement of the GRLEP; 2. if the answer to question (a) is "yes", whether the GRLEP applies to the subject development application; 3. whether, on the true construction of cl 1.7 of the Georges River Development Control Plan 2021 ("the GRDCP"), the development application was made before the commencement of the GRDCP; and 4. if the answer to question (c) is "yes", whether the GRDCP applies to the subject development application; 1. the matter is listed for hearing of the determination of the separate question of law on 2 August 2022; 2. the parties are to confer and prepare an agreed statement of facts and a bundle of documents on which the parties seek to rely at the hearing. The bundle is to include a table of contents and be paginated. The agreed statement of facts and bundle are to be filed by 22 July 2022; 3. the applicant is to file and serve an outline of submissions (not exceeding 15 pages) by 26 July 2022; 4. the respondent is to file and serve an outline of submissions (not exceeding 15 pages) by 29 July 2022; 5. the parties have liberty to restore the matter to the list on two working days' notice; and 6. the exhibits are to be returned.

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: 15 July 2022

(2013) 195 LGERA 170

(2013) 195 LGERA 182

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