Morgan and Hughes v Ballina Shire Council

Category: Procedural rulings

Parties: David Morgan (First Applicant)
David Hughes (Second Applicant)
Ballina Shire Council (Respondent)

Representation: Counsel:
A Gadiel (solicitor) (First and Second Applicant)
J Reid (Respondent)
Solicitors:
Mills Oakley (First and Second Applicant)
Parker & Kissane (Respondent)

File Number(s): 2025/221253

Publication restriction: Nil

JUDGMENT

The Applicants Seek the Determination of a Separate Question

1. The applicants, David Morgan and David Hughes, commenced Class 1 proceedings appealing the refusal of the development application by the respondent, Ballina Shire Council (“the Council”), which sought consent for the construction of a caravan park comprising approximately 175 sites, a community building, a swimming pool, amenity buildings, a manager’s residence and vegetation management works in Alstonville.

2. The Council refused the development application primarily on the basis that it was “prohibited within the 7(i) Environmental Protection (Urban Buffer) Zone pursuant to cl 9(2)(d) of the Ballina Local Environmental Plan 1987” (“LEP”).

3. The following facts were not in dispute. The land the subject of the development application comprises one lot legally described as Lot 10 DP1059499 and known as 10 Lismore Road, Alstonville (“the site”).

4. The site is irregular in shape and has an area of 6.99 ha. The site is currently vacant.

5. The development application the subject of these proceedings is DA2024/106 (“the DA”). The DA merely describes the proposed development as the “Development of tourist park including community facility and ancillary facilities”.

6. There is a dispute between the parties as to how the development proposed in the DA is properly characterised.

7. The applicants say that the use proposed in the DA is properly characterised as a form of tourist accommodation. The Council does not agree and submits that this is a mixed question of fact and law that will require determination at the appeal.

8. Figure 2-1 in the Statement of Environmental Effects (“SEE”) is reproduced below:

9. The DA is not a concept development application for the purposes of s 4.22 of the Environmental Planning and Assessment Act 1979 (“EPAA”).

The Statutory Controls

10. Clause 9(2) of the LEP provides that (emphasis added):

9 Zone objectives and development control table

(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause—

(a) development for a purpose specified under the heading “Without development consent” may be carried out without development consent,

(b) development for a purpose specified under the heading “Only with development consent” may be carried out only with development consent,

(c) (Repealed)

(d) development for a purpose specified under the heading “Prohibited development” may not be carried out.

11. The zoning table for the 7(i) zone specifies that:

Zone No 7 (i) Environmental Protection (Urban Buffer) Zone

1 Objectives of zone

A The primary objective is to create a rural buffer in the locality of Alstonville and Wollongbar and to prevent development of an urban character within any part of the zone which is likely to be seen by existing or likely future residents of the villages of Alstonville and Wollongbar or from a major road in the locality.

B The secondary objective is to enable development as permitted by the primary and secondary objectives of Zone No 1 (a1), except for development which would conflict with the primary objective of this zone.

C The exception of these objectives is development of land within the zone for public works and services, outside the parameters specified in the primary and secondary objectives.

2 Without development consent

Agriculture (not including the erection of buildings).

3 Only with development consent

Agriculture (involving the erection of buildings); bed and breakfast establishments; bush fire hazard reduction; dwelling-houses; home industries; open space; roads; roadside stalls; rural industries; rural workers’ dwellings; telecommunications facilities; utility installations.

4 (Repealed)

5 Prohibited development

Any purpose other than a purpose specified in item 2 or 3.

12. Clause 12 of the LEP is in the following relevant terms (emphasis added):

12 Dwelling-houses within Zone No 1 (a1), 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l)

(1) This clause applies to land within Zone No 1 (a1), 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l).

(1A) For the purpose of this clause, a reference to a dwelling-house includes a reference to a dwelling-house operated as a bed and breakfast establishment.

(2) The Council shall not consent to the erection of a dwelling-house on land to which this clause applies except in accordance with this clause.

(3) A dwelling-house may, with the consent of the council, be erected on vacant land to which this clause applies only where that land—

(a) has an area of not less than—

(i) in the case of land within Zone No 1 (a1) or 7 (i)—20 hectares,

(ii) in the case of land within Zone No 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f) or 7 (l)—40 hectares,

(b) is an existing holding,

(c) is an allotment created by subdivision to which development consent has been granted in accordance with clause 11,

(d) is an allotment created by a subdivision to which development consent has been granted in accordance with clause 13 as in force when consent for the subdivision was granted but before the gazettal of Ballina Local Environmental Plan 1987 (Amendment No 36), or

(e) is an allotment created by a subdivision to which development consent, or approval, was granted by the Council in accordance with the provisions of Interim Development Order No 1—Municipality of Ballina or Interim Development Order No 1—Shire of Tintenbar before the appointed day, not being development consent, or approval, that was granted subject to a condition that a dwelling could not be erected on the allotment.

(f) (Repealed)

(3A) (Repealed)

(3B) The council may consent to the erection of a dwelling-house on vacant land to which this clause applies that would have complied with subclause (3) but for the fact that part of the land has been acquired by a public authority for a public purpose.

13. Clause 28 of the LEP relevantly states:

28 Tourist accommodation

(1) This clause applies to development for the purpose of tourist accommodation on any land to which clause 12 applies on which a dwelling-house is lawfully erected or on which a dwelling-house may be erected in accordance with that clause.

(2) The council shall not consent to the carrying out of development for a purpose specified in Column 1 of the Table to this subclause—

(a) so as to permit the erection or use of more sites, units or cabins, as the case may be, than the number permitted by Column 2 of that Table, and

(b) if the allotment of land on which the development is to be carried out has an area less than that specified in Column 3 of that Table, shown opposite that purpose.

Table

| Column 1 | Column 2 | Column 3 | | Caravan/Camping Parks | 25 sites per hectare | 5 hectares | | Hotels/Motels | 10 units per hectare | 2 hectares | | Holiday Cabins | 3 cabins per hectare | 5 hectares |

…

(3) The council may grant consent to an application to carry out development to which this clause applies only if an environmental impact report containing the following matters has been lodged with the application—

(a) a full description of the proposed development,

(b) a statement of the objectives of the proposed development and how the objectives relate to the objectives of the zone,

(c) a full description of the existing environment likely to be affected by the proposed development, if carried out,

(d) identification and analysis of the likely environmental interactions between the proposed development and the environment,

(e) analysis of the likely environmental impact or consequences of carrying out the proposed development,

(f) justification of the proposed development in terms of environmental, economic and social considerations,

(g) measures to be taken in conjunction with the proposed development to protect the environment and an assessment of the likely effectiveness of the measures,

(h) any feasible alternatives to the carrying out of the proposed development and reasons for the proposed development,

(i) consequences of not carrying out the proposed development.

(4) In the preparation of the environmental impact report referred to in subclause (3), the person preparing the statement shall consult with the council and shall, in completing the preparation of the statement, have regard to any requirements notified to the person in writing by the council in respect of the form and content of the report.

A Separate Question (Finally) Arises

14. By way of notice of motion the applicants initially sought the following orders:

1. Pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005, the following question is to be determined separately from and prior to any remaining issues in the proceedings:

Is clause 28 of the Ballina Local Environmental Plan 1987 (the LEP) an exception otherwise provided for by the LEP (within the meaning of the chapeau of clause 9(2) of the LEP), such that it operates to permit the grant of development consent to a development that is for the purpose of tourist accommodation (in the form of a caravan park) on Lot 10 DP 1059499 (also known as 10 Lismore Road Alstonville NSW)?

2. The conciliation conference listed on 19 November 2025 is vacated and the matter is listed for further directions hearing before the judge charged with determining the separate question.

15. At the hearing, the applicants were granted leave to amend their notice of motion to add the following separate question in the alternative:

1A. In the alternative:

Pursuant to rule 28.2 of the Uniform Civil procedure Rules 2005, the following question is to be determined from and prior to any remaining issues in the proceedings:

Is clause 28 of the *Ballina Local Environmental Plan 1987 (*the LEP) an exception otherwise provided for by the LEP (within the meaning of the chapeau of clause 9(2) of the LEP), such that it operates to permit the grant of development consent to the proposed development on Lot 10 DP 1059499 (also known as 10 Lismore Road Alstonville NSW)?

16. The applicants were wise to do so because, as framed, question 1 raised a generic query that was not referable to the proposed development the subject of the Class 1 application. It will be a rare occasion that, in the context of a Class 1 appeal, that the Court will order a question to be determined first and separately that does not directly relate to the subject matter of the appeal. In the result, the applicants abandoned the initial separate question.

17. After a lengthy adjournment pursuant to a discussion between the parties and the Court as to the meaning of the alternative question, and following upon a concession made by the applicants that the proposed development was not for permanent housing, the alternative separate question was further refined into the following three questions and the notice of motion was further amended as follows:

1. Is the development proposed in development application DA2024/106/1 properly characterised as being for the purpose of tourist accommodation, referred to in clause 28(1) of the Ballina Local Environmental Plan 1987 (LEP)?

2. Is a dwelling house permitted to be erected on the land known as Lot 10 DP 1059499 (also known as 10 Lismore Road Alstonville NSW) (Land) pursuant to clause 12(3B) of the LEP?

3. If the answer to questions 1 and 2 is “yes”, is clause 28 of the LEP an exception to clause 9(2) of the LEP that operates to permit the proposed development on the Land?

18. In support of the application the applicants relied upon an affidavit of Julide Ayas, solicitor for the applicants, affirmed 3 October 2025.

19. With the greatest respect to Ayas, taking her evidence at its highest did no more than depose that “the Applicants would incur significant costs in preparing for, and attending, a conciliation conference.” The quantum of these costs was not, however, elucidated.

20. Similarly, no details were given in the Ayas affidavit of the savings in costs, time or even expert evidence that would be obtained if the separate question was ordered. Rather, this information was provided from the bar table following an analysis of the Council’s Statement of Facts and Contentions.

Applicable Legal Principles in Determining Whether to Order a Separate Question

21. The power to order a question to be determined 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.

22. The general rule is that all issues in proceedings are to be determined at the one time. The Court’s departure from that rule requires strong reasons, such as an anticipated significant savings in time and expense in relation to the final hearing (Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [9] per Macfarlan JA).

23. The Court must exercise its discretion to make an order for the determination of a separate question with care given that the conduct of separate trials on different issues can cause “delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid” (Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436] per Callinan J).

24. It is for the party seeking the order to show to the Court that a separate determination of a question is appropriate (820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 15 LGERA 170 at [10(b)] per Biscoe J).

25. An order is likely to be appropriate where it can facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings, so as to give effect to s 56 of the Civil Procedure Act 2005 (Spencer v Kiama Municipal Council [2024] NSWLEC 80 at [45] per Robson J).

26. In Spencer, Robson J summarised the factors in support of the making of an order for the resolution of a separate question from the authorities as follows (at [46]):

46 …where such an order may contribute to first, the prompt disposal of crucial issues in the litigation (or the whole action); second, the saving of time and costs by the narrowing of the issues in dispute; and third, in some matters, the potential settlement of the litigation.

27. Robson J opined that (at [47]):

47 It should also be remembered that the Court, in hearing Class 1 proceedings (which are usually conducted by a commissioner of the Court), is well-equipped to determine in any hearing any preliminary question that may be raised and it is trite that a court must always be satisfied before exercising jurisdiction in a matter and must always be satisfied before making an order that there is a power to do so.

28. In Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50, his Honour summarised instances where an order for a separate question is not likely to be appropriate (at [14](7)]):

(7) first, there are intertwined issues of fact or law, and the separate question is likely to result in fragmentation of the proceedings; second, there is likely to be significant overlap between the evidence adduced on the separate question and any residual questions; and third, the determination of a separate question is likely to involve issues as to the credibility of witnesses, whose evidence is likely to be material to the remaining issues in dispute.

A Separate Question Ought to be Ordered

29. The applicants primarily assert that whether the proposed development constitutes “tourist accommodation” will be determinative of the matter insofar as if it does, cl 28 of the LEP operates to permit the development with consent (cl 28(3)).

30. Clause 9(2) of the LEP applies “except as otherwise provided by this plan”. Clause 28 of the LEP imposes restrictions and mandatory considerations when granting consent for the carrying out of development to erect or use sites, units or cabins in respect of “tourist accommodation”. According to the applicants, the provision applies to a site that has a dwelling entitlement (cl 12).

31. In particular, the applicants rely on cl 28(3B) of the LEP to argue that consent may be forthcoming on the basis that part of the site, which has been historically subdivided for the purpose of the construction of a road, was acquired by a “public authority for a public purpose”.

32. In response, the Council asserts that cl 28 does not have the effect of specifying development for the purpose of a caravan park for tourist accommodation as permissible development. On the contrary, it submits that the proposed development as described in the DA, including in the SEE, is prohibited under the LEP and that no path to permissibility arises.

33. It was not in contention that the resolution of the permissibility issue in the Council’s favour would be dispositive of the entire proceedings and that concomitant time and costs would be saved.

34. Whereas the hearing of the separate question would take no more than one day, an appeal would take at least seven (the latter estimate was an agreed fact).

35. The applicants outlined the extensive nature of the documentary material that they would need to furnish during the appeal.

36. The applicants further submitted that there will be costs associated with engaging up to 16 experts to meet the issues raised by the Council in its Statement of Facts and Contentions. These experts ranged from, among others, specialised evidence on town planning, bush fire safety, acoustics, traffic, engineering, ecology, hydrology, agricultural economics, contamination, waste management, air quality and social planning.

37. Prior to the notice of motion being amended, the Council was initially opposed to the Court ordering a separate question, however, upon amendment and in light of the concession by the applicants that the proposed development was not seeking to include permanent housing, it conceded that there would be utility in ordering a separate question.

38. In doing so, however, the Council made two salient observations, first, that it is necessary to look to the substance and not the form of the DA (Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [19] per Preston J) and a traffic impact statement in the SEE accompanying the DA dated 15 May 2023 by SECA solution, indicated that the proposal was for a caravan park that envisaged 175 lots including both long term and short term use.

39. And second, that it is highly likely that the contentions would be refined and reduced with a concomitant narrowing of the evidence required, including expert evidence, by the parties to run the appeal.

40. I agree with the position adopted, and observations made, by the Council. Having regard to the principles articulated above, I am of the opinion that the separate questions as framed in the further amended notice of motion ought to be ordered. This is because:

(a) the reformulated questions are arguable; (b) the separate questions will, if answered favourably to the Council, wholly dispose of the proceedings; (c) as a consequence, this will result in a significant savings in costs and time to the parties and to the Court; (d) even if resolved in favour of the applicants, this is likely to promote settlement given that it is the Council’s present attitude that the proposed development is for an innominate prohibited use and that therefore there is nothing to conciliate; (e) the characterisation of the use of the site will require little, if any, evidence at the hearing of the separate questions; (f) the hearing of the separate questions will not be attended by the need for expert evidence and no matters of credit will be agitated; (g) facts will be able to be agreed for the purpose of determining the separate questions; (h) the separate questions do not require a factual inquiry into whether a caravan park constitutes a “tourist accommodation”; and (i) while both parties conceded that the separate questions will necessitate a factual inquiry into whether cl 12(3B) of the LEP is engaged, they agreed that the compass of historical documents required to be examined would be limited.

Orders of the Court

41. The formal orders of the Court, including orders made to prepare for the hearing of the separate questions are therefore as follows:

(1) pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, the following questions are to be determined separately from and prior to any remaining issues in the proceedings:

(a) is the development proposed in development application DA2024/106/1 properly characterised as being for the purpose of tourist accommodation, referred to in cl 28(1) of the Ballina Local Environmental Plan (“LEP”)?

(b) is a dwelling house permitted to be erected on the land known as Lot 10 DP 1059499 (also known as 10 Lismore Road Alstonville (NSW) pursuant to cl 12(3B) of the LEP?

(c) if the answer to questions 1 and 2 is “yes”, is cl 28 of the LEP an exception to cl 9(2) of the LEP that operates to permit the proposed development on the land?

(2) the conciliation conference listed on 19 November 2025 is vacated;

(3) the directions hearing listed on 24 November 2025 is vacated;

(4) the hearing of the separate questions is listed before a Judge on 25 November 2025;

(5) the parties are to file a Statement of Agreed Facts for the purposes of the hearing of the separate questions by 10 November 2025;

(6) the applicants are to file and serve their submissions and evidence by 14 November 2025;

(7) the respondent is to file and serve its submissions and evidence by 21 November 2025; and

(8) liberty to restore on 2 days' notice.

**********

Amendments

05 November 2025

The following paragraphs have been amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 on 5 November 2025: (a) at [17], the words “for short term tourist accommodation only” are deleted and replaced with the words “not for permanent housing”; and (b) at [37], the words “long term accommodation use of the site” are deleted and replaced with the words “permanent housing”.