Olsson v Goulburn Mulwaree Council & The Minister Administering The Crown Land Act 1989, Olsson v The Minister Administering The Crown Land Act 1989

Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 Minister Administering the Crown Lands Act 1989 Mulwaree Shire Council Local Environmental Plan 1995 Uniform Civil Procedure Rules 2005

Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 CASES CITED: Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; 145 LGERA 276 Strathfield Municipal Council v Poynting [2001] NSWCA 270; 116 LGERA 319 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 Young v Parramatta City Council [2006] NSWLEC 116; 144 LGERA 193

APPLICANT I J Hemmings (Barrister) SOLICITOR J R Palmer of Pikes Lawyers FIRST RESPONDENT LEGAL REPRESENTATIVES: S Flanigan (Barrister for Goulburn Mulwaree Council) SOLICITOR S Hill of Susan Hill & Associates Lawyers Pty Ltd SECOND RESPONDENT A Hill (Barrister for The Minister Administering The Crown Land Act 1989) SOLICITOR J S Jude - Land & Property Management Authority

The Land and Environment court OF NEW SOUTH WALES

10580 of 2009 Olsson & Anor v Goulburn Mulwaree Council & The Minister Administering The Crown Land Act 1989

40853 of 2009 Olsson & Anor v The Minister Administering The Crown Land Act 1989

EX TEMPORE JUDGMENT 1 HIS HONOUR: These two proceedings involve a development application which relates to land known as 1050 Crookwell Road, Middle Arm, being Lot 181 in Deposited Plan 750002 (the land). The land is within the local government area of the Goulburn Mulwaree Council (the Council). 2 There are before the Court today two notices of motion seeking orders for separate determination of issues. Those orders are sought in reliance upon the provisions of Part 28 rule 2 of the Uniform Civil Procedure Rules 2005 (UCPR). Before I turn to deal with the notices of motion, it is necessary to say something, albeit briefly, about the proceedings and their background.

3 As I have indicated, there are two sets of proceedings before the Court. One is being administered in this Court as if it was within Class 4 of the Court's jurisdiction, whilst what I might call the principal proceedings were commenced in Class 1. I will refer to these proceedings as the Class 4 and the Class 1 proceedings respectively. 4 The Class 1 proceedings involve an appeal brought pursuant to s 97 of the Environmental Planning and Assessment Act 1979 following the lodgement of a development application by the applicants with the Council seeking development consent to erect a number of rural workers dwellings on the land. The Class 4 proceedings are proceedings that were transferred to this Court pursuant to the provisions of Division 2A of Part 9 of the Civil Procedure Act 2005. 5 The latter proceedings were commenced in the Equity Division of the Supreme Court on 29 September 2009. As ultimately formulated in the then plaintiffs' amended summons, the relief sought in the proceedings was for an order that the defendant Minister Administering the Crown Lands Act 1989: "provide its consent as owner of Lot 181, Deposited Plan 750002 known as 1050 Crookwell Road, Middle Arm to Development Application DA 447/0607 for the purposes of s 78A of the Environmental Planning and Assessment Act" .

The plaintiffs (now the applicants), Ashley Olssen and Julie Olssen, are said to be the holders of a lease from the Minister under the Crown Lands legislation . By an order made in the Equity Division on 21 October 2009, the proceedings were transferred to this Court. 6 The order made at that time was expressed to have been made pursuant to s 149D(2) of the Civil Procedure Act. That subsection relevantly provides as follows: "(2) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to the proceedings before it, that: (a) there are related proceedings pending in the other court, and (b) it is more appropriate for the proceedings to be heard, together with related proceedings, in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings."

As would be apparent, the subsection relevantly identifies the foundation for transfer as being a circumstance where there are "related proceedings" pending in this Court. 7 The related proceedings to which the section refers and which no doubt founded the order then made, were proceedings that were commenced on 20 August 2009 in this Court, being the Class 1 proceedings to which I have already referred. 8 Upon the Class 4 proceedings being transferred to this Court, those proceedings became part of the Class 1 proceedings. So much is made clear by s 149D(1)(b) which relevantly provides that any proceedings "with respect to which a transfer order under s 149B(2) takes effect are to be heard together with, and are taken to form part of, the related proceedings in the transferee court". If there is any doubt as to the effect of that provision, it is elucidated, so it seems to me, by the provisions of s 149D(2)(b) which is in the following terms: "(2) For the purposes of any proceedings continued in the transferee court: (a) … (b) in the case of proceedings affected by a transfer under s 149B (2), any process or other documentation before the transferee court may be amended so as to reflect the merger of the proceedings concerned." 9 The effect of the transfer is that in the Class 1 proceedings the issue directed to the requirement for the consent of the Minister to the development application, as owner of the land, is pertinent. Not only is this the case because of the issue raised in the Class 4 proceedings but also because in the Class 1 proceedings the respondent Council has raised in its Statement of Facts and Contentions as the very first issue, the power of the Court to grant development consent in the absence of the consent of the Minister to the applicants' development application. 10 It will be remembered that the consent of the owner of land to a development application is required by the combined operation of s 78A of the Environmental Planning and Assessment Act and cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). In particular, I note the provisions of cl 49(3) of the Regulation which, in terms, requires than an application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown. 11 The principles pertaining to the making of an order pursuant to Part 28 rule 2 have been articulated on a number of occasions. They are usefully summarised in the judgment of Jagot J in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; 145 LGERA 276 at [12]. For the sake of brevity in this interlocutory application I do not set out the summary of principles there found but record that I have considered and applied them in reaching my decision. 12 Her Honour repeated those same principles in Young v Parramatta City Council [2006] NSWLEC 116; 144 LGERA 193 at [6]. In that judgment her Honour noted the caution which had been sounded in a number of decisions of judges of the Federal Court when applying the provision of the Federal Court rules comparable to Part 28 rule 2 of the UCPR. Reference was made to the judgment of Sackville J in Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002, in particular the following observations. "[2] In recent times, repeated reminders have been given of the dangers that attend the making of orders for the separate trial of particular questions or issues that arise (or are thought to arise) in proceedings. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1, Kirby and Callinan JJ (who dissented on the main issue) warned at [168] that the: attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory … ." Their Honours pointed out that the dangers of a trial of separate issues include the potential for interlocutory appeals delaying final determination of the proceedings. For this and other reasons they expressed the view that: [s]ingle-issue trials should … only be embarked upon when their utility, economy and fairness to the parties are beyond question." 13 It is with these principles in mind that I come to deal with the two notices of motion presently before me. 14 The first notice of motion which I am required to determine is that dated 4 March 2010 and filed on behalf of the Minister. It identifies two questions. The first, in terms stated in the notice of motion, is whether the Court has jurisdiction to entertain or rather to make the order that the applicant seeks. I have earlier referred to that order as articulated in the amended summons that was originally filed in the Equity Division. The second question that is raised by the Minister's notice of motion and which he seeks to have determined as a separate issue is whether the purpose of the lease into which the applicants in the proceedings have entered is a purpose which prevents the Minister from consenting to the applicants' development application. 15 As articulated and explained in submissions, Mr Hill, who appeared on behalf of the Minister, indicated that the jurisdiction of the Court to entertain the questions posed was not in question. Rather, as I understood his submission, the issue which he sought to agitate in the first of the proposed separate questions was whether, having regard to the terms of the lease, informed or expanded as they may be by the provisions of Crown Lands legislation, the Minister can or should be ordered to consent to the applicants' development application. The second issue that he raises identifies the need to interpret the Crown lease but, as well, requires, as he acknowledged, consideration of the manner in which the development intended by the applicants is to be carried out. 16 I was initially attracted to the submission made on behalf of the Minister that the first of the questions or issues identified was appropriate for an order under Part 28 rule 2. Mr Hemmings, who appeared for the applicants and opposed the making of any order, acknowledged that unless the Minister gave his consent to his clients' development application or was ordered so to do in these proceedings, then he could not, as a matter of law, sustain his Class 1 appeal. I will refer to this issue as "the owners' consent issue". 17 However, in response to Mr Hill's submission, Mr Hemmings submitted that in order to address the owners' consent issue it would be necessary to canvas the detail of the application, as elucidated either by the applicants themselves or expert evidence. That evidence, as would be appreciated, would also be relied upon to address issues otherwise raised both by the second issue which the Minister sought to agitate as well as several other several issues raised by the Council in its Statement of Facts and Contentions and which are not isolated for separate determination. There was thus the prospect of duplication in the evidence to be given if it be the case that the owners' consent issue was not decided in favour of the Minister. 18 In reply to Mr Hemmings' submission, Mr Hill accepted that the manner of use intended by the applicant and the detail explaining it were matters relevant for consideration when determining the owners' consent issue. Acceptance on behalf of the Minister that this was the case persuaded me that my initial attraction to separate determination of this question was not appropriate. The possibility of falling into the error identified by Young CJ in Equity (as his Honour then was) in Strathfield Municipal Council v Poynting [2001] NSWCA 270; 116 LGERA 319 came readily to mind. His Honour observed: "112 Very often isolating a separate set of questions actually increases the costs. There are several reasons for this. First, people get lulled into a false sense of security that they are only looking at the cost of a short hearing rather than a three day final hearing. However, by the time one takes into account the extra work considering the impact the answers have on the proceedings, engrossing and serving orders, applications for leave to appeal and the appeal itself, the bill for legal costs may be higher. Secondly, the parties cease to focus on the main issues, and, more importantly, resolving those main issues, whilst their lawyers have an intellectually satisfying debate on some arcane point. 113 The perceived law is that separate questions should only be posed when there is a critical matter which if dealt with in a preliminary hearing will far more likely than not be convenient and significant expense."

Those observations are pertinent in determining the fate of the Minister's separate question motion. Particularly is this so when one adds to them the observations of Santow J in Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 where His Honour said (at [24]): " … an obvious danger with quarantining what are claimed to be the only relevant facts is that others may later turn out to be relevant. Then the Court is in danger of impermissibly exceeding its proper judicial function, by deciding hypothetical rather than real questions in reliance on incomplete facts or facts not all found or agreed". 19 The potential, in light of the concession made in the Minister's submissions, that full facts pertaining to the application would need to be found and are capable of bearing upon the issue to be determined seems to me to fall squarely within the observation and caution sounded by Santow J if one were to proceed on a limited sets of facts only to find that further facts are appropriate to the consideration of the issues tended for consideration. 20 The second issue identified in the Minister's notice of motion seems to me equally inappropriate for separate determination. While it cannot be doubted that the purpose of the Crown lease in question can be distilled from the lease itself and from the legislation which informs its making and operation, the acceptance by Mr Hill that in the process of that exercise it is appropriate to consider the detail of the development application as articulated by those called to explain and support it, militates against an order for separate determination. 21 Unquestionably, the two issues identified in the Minister's notice of motion are discrete issues. However, the real question for the purpose of considering the application of Part 28 rule 2 of the UCPR is whether it is appropriate in the circumstances to order separate determination of those issues. In my opinion and for the reasons given it is not. Accordingly, the Minister's notice of motion dated 2 March 2010 will be dismissed. 22 The Council's notice of motion is dated 3 March 2010. The issue that it identifies is expressed as follows: "Whether the operation and effect of cl 20 Mulwaree Shire Council Local Environmental Plan 1995 renders proposed development application number 447/0607/DA as prohibited." 23 Mr Flannigan, who appeared for the Council, says that the effect of cl 20 of Mulwaree Local Environmental Plan 1995 (the LEP) is that the applicants' development application must be refused and he says that for two reasons. First, the clause requires that in order to sustain an application for a rural workers dwelling it is necessary for there to be an existing dwelling standing on the land that is the subject of the development application. He asserts from the bar table that there is no dwelling at all presently standing that land. Clause 20, so he argues, is therefore not engaged as it is the only source of power for a consent authority to consent to the applicants' development application. 24 The second issue which cl 20 of the LEP raises, in the context of the present development application, is that properly understood it does not involve the construction of a rural workers dwelling or rural workers dwellings within the meaning of the LEP, as that LEP incorporates, by reference, the provisions of the Environmental Planning and Assessment Model Provisions 1980. 25 In order to make good the second of these contentions there is required to be an exploration of the manner in which the applicants propose to conduct their activities on the land. For the reasons already articulated in dealing with the Minister's notice of motion, that circumstance speaks against the making of an order for separate determination of an issue directed to cl 20, so far as it is suggested that the application does not, in fact, involve a proposal to erect rural workers dwellings. 26 However, the first basis upon which cl 20 is invoked by the Council as a source of prohibition of the applicants' development application warrants close consideration. Mr Hemmings on behalf of the applicants concedes that if the argument raised on that first basis is against him, in that the presence of a principal dwelling standing on the land is essential in order to engage the operation of cl 20, then, on the assumption that there is no such dwelling, his clients' application must fail. He had no specific instructions as to whether there was a dwelling on the land but he accepted that the assertion made on behalf of the Council that there was no such dwelling was likely to be correct. While he disputed that cl 20 had the effect contended for it, he acknowledged, as I have indicated, that if he was wrong then there was no power in the Court to accede to his clients' application. 27 Clearly, the point is a very short one. Assuming that the absence of a principal dwelling on the land is conceded, I would be prepared to order a separate hearing on that issue. If decided favourably to the Council, it is determitive of the applicants' proceedings. Obviously, the issue would need to be confined to that identified by Mr Flanigan in the first part of his argument. 28 Accordingly, I make the following orders: 1. The notice of motion filed by the Minister Administering the Crown Lands Act 1989 on 2 March 2010 is dismissed. 2. Pursuant to Part 28 rule 2 of the Uniform Civil Procedure Rules that the following question be first and separately determined: Whether, upon the proper construction of cl 20 of Mulwaree Environmental Plan 1995, a lawfully erected dwelling house is required to be standing upon the land known as 1050 Crookwell Road, Middle Arm, being Lot 181 in DP 750002, before the Council or, on appeal, the Court is empowered to grant development consent to the erection of one or more rural workers dwellings upon that land. 3. Refer the matter to the Registrar on 11 March 2010 for the purpose of fixing a date for hearing of the separate question before a judge of the Court.

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