Ironlaw Pty Ltd v Wollondilly Shire Council

EX TEMPORE Judgment 1Ironlaw Pty Ltd (Ironlaw) made an application to Wollondilly Shire Council (the Council) for development consent to construct and operate a waste or resource transport station and resource recovery centre at 25 Government Road, Bargo. That application has not been determined by the Council. 2Ironlaw has appealed to the Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act). It does so on the ground that, for the purpose of exercising its entitlement to appeal to the Court, its development application is deemed to have been refused by the Council: s 82 of the EPA Act. 3The appeal has not yet been fixed for hearing. Each party has, by notice of motion, sought the determination of a separate question or issue before any hearing on the merits. These questions or issues arise from the Contentions raised by the Council in its Statement of Facts and Contentions filed in accordance with the Court's practice requirements. In substance, the respective questions or issues identified are: (i) whether the development proposed by Ironlaw is "designated development" identified in Sch 3 to the Environmental Planning and Assessment Regulation 2000 (the Regulation) (identified by Ironlaw), and (ii) whether the development application "is invalid because consent in writing has not been provided by the owner of the land to which the application relates" (identified by the Council). 4A further order sought by the Council is that it be given leave to rely upon an Amended Statement of Facts and Contentions attached to its Notice of Motion, filed on 21 November 2012. Ironlaw does not oppose the making of that order. It is by reference to the Amended Contentions contained in that document that the second of the two issues or questions that I have identified is raised by the Council. 5The Council supports Ironlaw's motion for separate determination of the first of the two issues that I have identified. However, Ironlaw opposes the separate determination of the second of those two issues. 6Ironlaw accepts that if the first of the two issues, namely that pertaining to designated development, is determined adversely to it, the development application has not met the requirements of the EPA Act or the Regulation as they pertain to an application for designated development. As a consequence, its application must be refused if it be determined that it seeks consent for designated development. I will return to this matter shortly. 7The second issue that I have identified turns upon the absence of consent from the Crown to the making of Ironlaw's development application so far as it pertains to works proposed to form and construct what is presently an unmade Crown road together with other associated roadworks said to affect land owned by the Crown. By cl 49 of the Regulation, where a development application is made other than by the owner of the land to which the development application relates, the consent in writing of the landowner must be provided as part of the development application. 8A number of cases decided in this Court have held that in order to comply with the EPA Act and the Regulation, the consent of the owner of land to the making of a development application must be provided and be available at the time at which that application is determined. While the development application is incomplete, absent that consent, such consent may be provided to the decision-maker, in this case the Council or the Court, at any time prior to the application being determined. 9Assuming the correctness of the decisions that have so held, the manner in which the Council frames its question or issue for preliminary determination would seem to be inappropriate. The consent of the Crown as landowner may be forthcoming before the hearing of Ironlaw's appeal is listed for determination. Nonetheless, it must be accepted that the Court would not embark upon the process of merit determination of the present development application if there remained no realistic prospect that the Crown would consent to the making of the development application at any time prior to the Court finally determining the appeal. 10As presently framed, I do not think that the Council's question or issue as to the validity of the development application is appropriate for preliminary and separate determination. If a separate question was to be formulated, it would need to address both - (i) the utility of prosecuting the proceedings in the absence of the Crown's consent to the development application, and (ii) the absence of any realistic prospect that such a consent would be provided prior to the determination of the present proceedings. 11I am prepared to accommodate the possibility that the Council may wish to pursue an issue directed to these matters. Therefore, I propose to give leave to the Council to file a motion seeking determination of a separate question directed to the issue that I have identified. Any such motion must be supported by evidence sufficient to justify the determination that the question or issue be separately tried. 12Against the possibility that the Council may wish to take that course, I propose to give directions as to the time by which such a motion, with its supporting evidence, is to be filed and served. If, on the hearing of any such motion, the Court is persuaded that the question should be determined as a preliminary matter, it can be determined concurrently with the first question or issue that I have earlier identified. 13I have already indicated that both parties support the making of an order for separate determination of the first issue. Their consensus in this regard does not, of itself, determine the decision that I should make although, for obvious reasons, it is a factor to be considered when making that determination. 14The application for separate and preliminary determination of the first issue is made under Pt 28, r 28.2 of the Uniform Civil Procedure Rules 2005. The application of that rule has been considered in a number of cases. The legal principles were usefully summarised by Jagot J in Metropolitan Local Aboriginal Land Council v The Minister Administering the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 and repeated by her Honour in Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193. They have been referred to and applied by me in Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138 and Reysson v Roads and Traffic Authority [2011] NSWLEC 153. They were summarised by Biscoe J in Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 in the following terms (at [11]): "(a) Generally speaking, all issues should be tried at the same time. If an issue of law or fact is raised which, if decided in one way, will dispose of the claim then a separate determination of that issue may be appropriate. (b) Care must be taken to ensure that any such question is 'ripe' for separate and preliminary determination. This will be so where the matter is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. (c) Where the issue sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and the facts upon which that question has to be considered should be clearly ascertainable. (d) Special problems can arise where the question sought to be separated is one of mixed fact and law. (e) In order to dispose of what may first appear to be a pure question of law, the enquiry might range round questions of fact and the proper inferences to be drawn from the primary facts. Hence, it should be able to be seen with clarity that the determination of the separate question will be beneficial to the conduct of the proceedings and resolution of the dispute." 15In the present case, the first issue earlier identified raises the proper categorisation of the development application and therefore involves a mixed question of fact and law. However, the manner in which the issue is sought to be confined is identified by reference to [1] of the Contentions identified by the Council in its Statement of Facts and Contentions. Having contended that the development proposed by Ironlaw is designated development, the particulars given for that contention are identified. 16In summary, the contention is that roadworks proposed by Ironlaw as being ancillary to the construction and operation of its proposed waste and resources recovery facility are works that cause the overall development to fall within the provisions of cl 32 of Sch 3 to the Regulation. The clause is engaged, so it is submitted, because those ancillary works will either be within 100m of a natural water body or involve bridge construction that will be located within 500m of a residential zone or within 250m of a dwelling not associated with the development: cl 32(1)(d)(i) and (vi) of Sch 3. Necessary to be considered in this context are the provisions of cl 38A of Sch 3 which appears to address ancillary works to development that by reason of those works might engage the provisons of the Schedule. 17The nature and extent of development proposed by Ironlaw in its development application does not appear to be in contention for the purpose of considering the preliminary question or issue. The matters to which I have adverted, subject to the relevant facts being presented in an agreed form, would seem, in general terms, to identify the ambit of debate. In light of the concession made by Ironlaw that it has not sought to meet the requirements of a development application for designated development, the determination of the preliminary issue adversely to it must have the consequence that its application be refused. The prospect of this outcome is of significance both for the parties, in terms of the costs that they might otherwise have to bear, and for the Court, in terms of the time needed to be set aside for a hearing, if this issue is left for determination at the conclusion of a hearing on the merits. The Council has identified a number of merit issues in opposition to Ironlaw's application. 18Applying the principles to which I have referred, I am satisfied that it is appropriate for the first issue earlier identified to be determined separately from any other issue in the proceedings. The determination of the issue, if adverse to Ironlaw, will dispose of the proceedings and further, its determination, "will be beneficial to the conduct of the proceedings and resolution of the dispute". 19As I have earlier indicated, if the Court is persuaded that the absence of consent of the Crown, as owner of part of the land to which the application relates, is an issue that should be determined separately from the merit issues in the proceedings, then that question may be appropriately determined at the time at which the further issue or question is determined. However, that will turn upon the success of any notice of motion brought by the Council in accordance with the leave that I have earlier contemplated in that regard. 20I therefore propose the following orders: 1.Grant leave to the Council to rely upon the Amended Statement of Facts and Contentions attached to its Notice of Motion filed on 21 November 2012. 2.Order that the following question be determined separately from and before the trial of any other question or issue in the proceedings: "Whether the Applicant's development application is an application 'in respect of designated development' within the meaning of s 78A(8) of the Environmental Planning and Assessment Act 1979 by reason of the matters articulated in subparagraphs 1(a) to (c) inclusive of Part B of the Council's Amended Statement of Facts and Contentions attached to its Notice of Motion filed on 21 November 2012." 3.Order that any Notice of Motion proposed to be filed by the Council directed to the utility of conducting the proceedings in the absence of the consent by the Crown to the applicant's development application and any realistic prospect of that consent being obtained before a final hearing of the proceedings be filed and served by 4.00pm on Wednesday 5 December 2012. 4.Direct that the Council file and serve with any such Notice of Motion the evidence upon which it proposes to rely in support of that Motion. 5.Direct that the Applicant file and serve any evidence upon which it proposes to rely in answer to any such Notice of Motion by 4.00pm on Wednesday 12 December 2012. 6.Fix Tuesday 18 December 2012 at 9.30am before me for the hearing of any Notice of Motion filed in accordance with Order 3. 7.Give leave to the parties to approach the Registrar forthwith to obtain a date for hearing of the separate question that is identified in Order 2. 8.Direct that by Monday 17 December 2012 the parties file an Agreed Statement of Facts upon which they will rely for the purpose of arguing the separate question identified in Order 2. 9.Costs reserved.