Johnson Property Group Seeks the Determination of a Separate Question
By notice of motion filed on 18 December 2019, the applicant in Class 1 proceedings (commenced on 4 November 2019), Johnson Property Group Pty Ltd ("Johnson"), seeks one of two orders, namely, either that:
1. the Class 1 hearing be listed for final determination before a judge of the Court "in accordance with s 33 of the Land and Environment Court Act 1979" ("the LEC Act") on 25 February 2020 ("the s 33 application"); or
2. in the alternative, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") that the following question be determined by judge of the Court prior to and separate from the hearing of the balance of the issues in these proceedings ("the separate question application"):
Does the Applicant have a right of appeal against the Respondent's rejection of its Development Application for the construction of cycleways and intersection improvement works located on Lot 8 Section 3 DP 3533 Freemans Drive, Stockton Street, Kahibah Street, Newcastle Street and Station Street, Cooranbong and Morisset.
The separate question goes to the competency of the present Class 1 appeal, that is, whether Johnson has a right of appeal against the respondent's, Lake Macquarie City Council ("the Council"), rejection of Johnson's development application ("the DA").
The Council does not oppose Johnson's alternative application. Indeed its Statement of Facts and Contentions ("SOFC") lists only one contention, in effect, the present iteration of the separate legal question. No merit issues are yet raised by it. This is because, at this nascent stage of the appeal, and as the affidavit evidence and submissions relied upon by both parties indicates, if the discrete legal question is determined in the Council's favour it will dispose of the entirety of the Class 1 appeal. However, if the separate question is determined adversely to the Council, then the Council has indicated that it will seek to file contentions on merit issues.
This position had been earlier notified to Johnson (see the affidavit of Mr James Griffiths sworn 20 December 2019, the solicitor acting for the Council).
The Council has properly, in my view, proceeded this way to avoid incurring unnecessary legal costs in the preparation of a fulsome SOFC (see ss 56 to 60 of the Civil Procedure Act 2005 ("CPA")).
For the reasons explained below, it is appropriate that the Court hear and determine the separate question posed by the parties prior to any further issue being determined in the Class 1 appeal. Johnson's s 33 application must, however, fail.
[3]
Johnson Applies for a DA for the Construction of a Cycleway and Intersection Improvement Work
As agreed by the parties, the background facts giving rise to the two applications are described below.
The Class 1 appeal relates to the DA rejected by the Council for integrated development both under the Environmental Planning and Assessment Act 1979 ("EPAA") and s 138 of the Roads Act 1993 for:
1. the construction of a cycleway, identified as items 8 b - Part 3, 8(d) and 8(e) within the North Cooranbong Planning Agreement between the Council and Johnson dated 1 June 2015 ("2015 Agreement"), as amended by a Deed Amending the Planning Agreement (North Cooranbong) dated 19 December 2017 ("2017 Deed") and Annexure F of the 2015 Agreement; and
2. provision of intersection improvement work identified as item 18 within the 2015 Agreement.
The site is described in the DA as Lot 8 Section 3 DP 3533 as well as road reserves being Freemans Drive, Stockton Street, Kahibah Street, Newcastle Street and Station Street, Cooranbong and Morisset ("site").
Lot 8 Section 3 in DP 3533 is shown as owned by Australasian Conference Association Limited ("ACA"). The Council has seen a written consent from ACA dated 11 November 2015, pursuant to which ACA has consented to Johnson submitting any development application on land owned by it, including Lot 8 Section 3 DP 3533.
The site is currently owned and used as follows:
1. the several road reserves are used as public roads vested in the Council as the roads authority; and
2. Lot 8 Section 3 DP 3533 is shown in the Council records and by title searches to be owned by ACA and is used as vacant land with a water body situated on it.
Part of the site is proposed for use as a cycleway (except Lot 8 Section 3 in DP 3533) that runs along public road corridors through a mixture of rural residential and urban settings. Part of the site anticipated as intersection line marking is an existing public road intersection.
On 3 October 2019 documentation comprising the DA was left, together with a letter from Johnson of the same date addressed to the Council, at the front counter of the Council's administration office.
On 9 October 2019 the Council wrote to Johnson rejecting the DA due to a lack of owners consent from all relevant land owners. The Council's letter stated:
Unfortunately the package [of documents constituting the DA] did not include evidence of owners consent from all relevant owners of land and does not comply with the statutory requirements for a valid development application under the Environmental Planning and Assessment Regulation 2000.
Accordingly, Council returns the package of documents under cover of this letter.
On 17 October 2019 Johnson wrote to the Council requesting a review of the Council's rejection of the DA pursuant to s 8.2(1)(c) of the EPAA ("Review Application").
On 31 October 2019 the Council was taken to have refused the Review Application.
As stated above, on 4 November 2019 Johnson commenced the Class 1 proceedings.
Subsequently on 7 November 2019, the Council formally refused the Review Application. The Council's letter to Johnson stated that:
The outcome of the review is that Council's decision to refuse lodgement of your application has been CONFIRMED on the basis that the consent of all owners is required but cannot be provided.
On 12 December 2019 the Council filed its SOFC in the proceedings. It states as follows:
B1 - Contentions that warrant the refusal of the application
The appeal must be refused because:
1. The right of appeal under s 8.7 of the EPA Act is not engaged.
Particulars:
i. The Proposed DA did not contain the consent of all owners of land the subject of the application, as required by clause 50 and Schedule 1 of the EPA Regulation.
ii. The Council was entitled to, and rejected, the Proposed DA, pursuant to clause 51 of the EPA Regulation.
iii. The decision to reject the Proposed DA was not changed following a review.
iv. For the purpose of the EPA Act, the Proposed DA is taken never to have been made, pursuant to clause 51(3) of the EPA Regulation.
v. As such, the right of appeal under section 8.7(1) of the EPA Act has not been engaged.
vi. Additionally, the Council, by rejection of the Proposed DA, did not make a determination of the application, within the meaning of section 8.7(a) of the EPA Act.
Again as stated above, the Council's SOFC lists no other contentions.
The Council has not filed a notice of motion seeking to strike out the proceedings.
[4]
How the Discrete Legal Question Arises
The discrete legal issue the subject of the application for a separate question arises by reason of the following arguments, about which I express no view and make no findings.
Pursuant to s 4.12(a) of the EPAA, a person may, subject to the Environmental Planning and Assessment Regulation 2000 ("EPA Regulations") lodge a development application with a consent authority.
The EPA Regulations provide that a development application must contain the information and be accompanied by the documents specified in Pt 1 of Sch 1 (cl 50).
Item 1(1)(i) of Sch 1 requires evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by the EPA Regulations.
The DA lodged by Johnson was not accompanied by the consent of the Council in its capacity as the owner of the roads on which the cycleway and intersection are proposed.
A consent authority may reject a development application if it is not accompanied by the information or the documents specified in Pt 1 of Sch 1 of the EPA Regulations (see also cl 51).
The Council argues that it was entitled to reject the DA because it was not accompanied by the consent of the owner of the land as required by Item 1(1)(i) of Pt 1 of Sch 1 of the EPA Regulations.
A decision to reject a development application may be the subject of a review under s 8.2(1)(c) of the EPAA. But a decision reviewed under this section is arguably not subject to further review.
The EPAA expressly prescribes the legal consequence of the rejection of a development application and states that if the decision is not changed on review, the application is taken for the purposes of that Act never to have been made.
Section 8.6(1) of the EPAA states that:
A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to an appeal to the Court under this Division.
Each of ss 8.7 to 8.9 of the EPAA are the provisions within the relevant Division that "so provides". In this instance, s 8.7 is the relevant provision and provides a right to an applicant who is dissatisfied with the determination of a development application to appeal to the Court against that determination.
There appears to be a distinction between a rejection and a determination as set out in s 8.2 of the EPAA.
It is therefore arguable that the proper construction of the EPAA is that the appeal right afforded by s 8.7 is only in respect of a determination, and not a rejection, of a development application.
For the purposes of the EPAA, the development application is therefore taken never to have been made pursuant to cl 51(3) of the EPA Regulations.
Additionally, by rejecting the development application, the Council did not make a determination of the application within the meaning of s 8.7(1) of the EPAA. As such, the right of appeal under s 8.7(1) does not arise and/or has not been engaged.
[5]
The Section 33 Application
By its s 33 application, Johnson sought, in effect, expedition of the entirety of the hearing and determination of the Class 1 appeal, or at the very least, the determination of the sole legal issue raised by the Council's SOFC on the date specified in its motion (this was not entirely clear from the text of the motion or Johnson's written and oral submissions).
The application is misconceived for a number of reasons. First, no order for expedition has been sought in its notice of motion. This is so notwithstanding that the need for Johnson to seek such an order was clearly explained to Johnson by the Court on two separate occasions (on 22 January 2020, by Acting Registrar Walton, and on 29 January 2020, by email communication from my chambers). No application was made by Johnson to amend the motion to seek such an order.
No evidence is contained in either the affidavit of Ms Naomi Simmons, affirmed 18 December 2019 (the solicitor acting for Johnson), or the affidavit of Mr Griffiths, that would, in any event, warrant the granting of expedition.
Second, s 33 of the LEC Act merely states the following:
33 Exercise of jurisdiction generally
(1) Classes 1, 2 and 3 of the Court's jurisdiction shall, in accordance with this Act, be exercised by a Judge or one or more Commissioners.
(2) Classes 4, 5, 6 and 7 of the Court's jurisdiction shall, in accordance with this Act, be exercised by a Judge.
(2A) Class 8 of the Court's jurisdiction shall, in accordance with this Act, be exercised by a Judge or by a Commissioner who is an Australian lawyer.
(3) The Court's jurisdiction under section 16(1A) is to be exercised by a Judge, but this subsection does not prevent a Judge from being assisted by one or more Commissioners in accordance with section 37.
The provision does not empower the Court to grant expedition. Rather that power is located in s 61 of the CPA and r 2.1 of the Uniform Civil Procedure Rules 2005 ("UCPR") (see Wirrabara Village Pty Ltd v The Hills Shire Council [2018] NSWLEC 6; (2018) 229 LGERA 20 at [35]).
Third, before whom matters are listed for hearing in this Court is determined by the Chief Judge (or Acting Chief Judge, as the case may be) pursuant to s 30 of the LEC Act.
Fourth, merely because a Class 1 appeal raises a legal question does not, without more, warrant the matter being determined by a judge, as Johnson appeared to submit. The commissioners of this Court routinely hear and determine legal issues in appeals heard in Class 1 of the Court's jurisdiction.
In my view, the s 33 application is wholly without merit and is therefore rejected.
[6]
The Separate Question Application
The power to order a separate question is contained in r 28.2 of the UCPR:
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 principles to be applied in the exercise of the Court's discretion to order the determination of a separate question were summarised in Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 (referring to 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170).
These principles have been accepted by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182, and in subsequent decisions of the Court, including most recently in Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 (at [22]-[29]). The principles are that:
1. generally, it is preferable that all issues be tried and determined at the same time;
2. it is for the party seeking the order to demonstrate that separate determination of a question is appropriate;
3. separate determination of a question is likely to be appropriate where it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings (see s 56 of the CPA);
4. separate determination of a question may be appropriate where it is critical to the outcome of the proceedings and/or where it will be wholly dispositive of the matter;
5. separate determination of a question may be appropriate even if it will not bring the proceedings to an end, but where it will narrow the issues in dispute or minimise the evidence required to be adduced, thereby reducing the duration of the hearing;
6. separate determination of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to the remaining issues in the proceedings;
7. where the question sought to be separated involves a question of law, there should be a clear articulation of the legal issue raised and the facts upon which that question has to be decided should be agreed, or at the very least clearly ascertainable; and
8. where the facts upon which the decision depends are contentious, the utility of the separate question process diminishes.
Applying these principles to the present application all but compels the ordering of the separate question. If answered in the Council's favour, the Class 1 proceedings will be terminated absent the need for either party to incur further evidential or legal costs. Moreover, the evidence required to answer the separate question ought to be confined, if not wholly agreed, and will be largely documentary in nature.
To the extent that an additional legal question was foreshadowed by Johnson, namely, whether the Court has the power under s 39 of the LEC Act to give owner's consent in Class 1 proceedings (see generally Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 at 731-732), there is no reason why this issue cannot be determined by the commissioner (or judge) allocated to hear the appeal, together with all other merit contentions that may be agitated by the parties, should the separate question be answered in the negative. Neither party sought to cavil with this position.
[7]
Costs
Finally, in its motion Johnson originally sought an order that the costs of the motion be costs in the cause. Upon being reminded that these are Class 1 proceedings (see r 3.7 of the Land and Environment Court Rules 2007) and in light of the Court's rejection of its s 33 application, Johnson did not (sensibly, in my opinion) press for the order.
[8]
Orders
The final orders of the Court are therefore that:
1. pursuant to r 28.2 of the UCPR the following question is to be determined separately from any other question in the proceedings:
Does the Applicant have a right of appeal against the Respondent's rejection of its Development Application for the construction of cycleways and intersection improvement works located on Lot 8 Section 3 DP 3533 Freemans Drive, Stockton Street, Kahibah Street, Newcastle Street and Station Street, Cooranbong and Morisset.
1. the hearing of the separate question is listed for determination before a judge on 30 March 2020 at 10am;
2. the parties are to file and serve a statement of agreed facts by 24 February 2020;
3. the parties are to file and serve an agreed bundle of documents and any other evidence upon which they seek to rely by 2 March 2020;
4. the applicant is to file and serve an outline of its submissions by 13 March 2020;
5. the respondent is to file and serve an outline of its submissions by 23 March 2020; and
6. the exhibits are to be returned.
[9]
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Decision last updated: 05 February 2020