Raphael Shin Enterprises Pty Ltd v Minister for Planning

Land and Environment Court (NSW)|2018-03-05|Before: Molesworth AJ

Solicitors: Sparke Helmore (Applicant) Department of Planning (Respondent) File Number(s): 2017/332253

Preliminary Note

As a preliminary note, this case was heard just four days after the Environmental Planning and Assessment Act 1979 (EPA Act) was substantially amended by the Environmental Planning and Assessment Amendment Act 2017 (EPA Amendment Act), which commenced on 1 March 2018. In order to facilitate an understanding of the transition to the EPA Act after 1 March 2018, in this judgment both the previous sections of the Act and the updated section references in the now extant Act will be set out.

Relevant legislation regarding the separation of questions

Rule 28.2 of the UCPR provides the power by which the Court may determine a question separately. The provision is as follows: 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.
Rule 28.4 then sets out the circumstances when the determination of a question separately is appropriate: 28.4 Disposal of proceedings (1) This rule applies if the decision of a question under this Division: (a) substantially disposes of the proceedings or of the whole or any part of any claim for relief in the proceedings, or (b) renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim for relief in the proceedings. (2) In the circumstances referred to in subrule (1), the court may, as the nature of the case requires: (a) dismiss the proceedings or the whole or any part of any claim for relief in the proceedings, or (b) give any judgment, or (c) make any other order.
The Court's Practice Note for Class 1 Development Appeals relevantly sets out the Court's practice with respect to the consideration of an application for the separate determination of an issue: 76. In the ordinary course, all issues (including issues requiring findings on questions of law) should be heard together unless an issue genuinely capable of separate determination is likely to be determinative of the appeal. Note: A Judge or a Commissioner who is an Australian Lawyer may be appointed to conduct the final hearing to facilitate the objective of having all issues heard together. 77. If any party seeks to raise an issue of fact or law that the party contends precludes or demands the determination of the development appeal application in a particular way or otherwise seeks to have an issue dealt with separately before the final hearing in accordance with Part 28 Division 2 of the Uniform Civil Procedure Rules 2005, the party must apply to do so by notice of motion supported by a short affidavit setting out the issue and the reasons why it should be dealt with separately. If possible, the notice of motion is to be returnable at the first directions hearing. 78. If an order is made for a separate hearing: (a) short matters (less than 2 hours) may be listed on the first available Friday before the Duty Judge or Duty Commissioner for issues of law or fact respectively; and (b) other matters will be listed for hearing in the ordinary course, and the usual directions in Schedule H will apply.
It is to be noted that the Practice Note effectively confirms that the default position is that, in the ordinary course, all issues, including issues requiring findings on questions of law, should be heard together. Later in this judgment I consider various judicial authorities which examine the circumstances when it has been considered that an issue can be genuinely capable of separate determination, thereby facilitating a determination of an appeal.

The relevant planning controls applicable to the Site

The Site is zoned RU2 Rural Landscape under the PS LEP. Land uses within the PS LEP are classified as permitted without consent, permitted with consent, and prohibited. Relevantly, within the RU2 zone, land uses permitted with consent include 'eco-tourist facilities' and 'tourist and visitor accommodation'. Prohibited land uses are 'backpackers' accommodation', 'hotel or motel accommodation', 'serviced apartments', and any development not specified in the 'permitted without consent' or 'permitted with consent' categories.
'Eco-tourist facility' is defined in the Dictionary in the PS LEP as: … a building or place that: (a) provides temporary or short-term accommodation to visitors on a commercial basis, and (b) is located in or adjacent to an area with special ecological or cultural features, and (c) is sensitively designed and located so as to minimise bulk, scale and overall physical footprint and any ecological or visual impact. It may include facilities that are used to provide information or education to visitors and to exhibit or display items.
There are two relevant notes to the definition of eco-tourist facility as it appears in the PS LEP Dictionary. The first note advises that one must see cl 5.13 for requirements in relation to the granting of development consent for eco-tourist facilities. The second note advises that eco-tourist facilities are not a type of tourist and visitor accommodation. The reader is then referred to that definition in the Dictionary.
'Tourist and visitor accommodation' is defined in the PS LEP Dictionary as: … a building or place that provides temporary or short-term accommodation on a commercial basis, and includes any of the following: (a) backpackers' accommodation, (b) bed and breakfast accommodation, (c) farm stay accommodation, (d) hotel or motel accommodation, (e) serviced apartments, but does not include: (f) camping grounds, or (g) caravan parks, or (h) eco-tourist facilities.
Accordingly, if the Proposal is considered to be an eco-tourist facility it will be permitted (with an appropriate development consent in place), however if it is more properly characterised as, for example, hotel or motel accommodation or serviced apartments it will be prohibited within the zone (due to the express prohibition in the RU2 land use table, notwithstanding their inclusion in the general definition of 'tourist and visitor accommodation'). An 'entertainment facility', by virtue of not being specified in either of the permitted development categories in RU2, would also be a prohibited land use on the Site.
Section 89E of the EPA Act (now s 4.38) as in force at the time of the application provided (relevantly): 89E Consent for State significant development (1) The Minister is to determine a development application in respect of State significant development by: (a) granting consent to the application with such modifications of the proposed development or on such conditions as the Minister may determine, or (b) refusing consent to the application. (2) Development consent may not be granted if the development is wholly prohibited by an environmental planning instrument. (3) Development consent may be granted despite the development being partly prohibited by an environmental planning instrument. …
Clause 5.13 of the PS LEP deals with eco-tourist facilities, and provides, relevantly: (1) The objectives of this clause are as follows: (a) to maintain the environmental and cultural values of land on which development for the purposes of eco-tourist facilities is carried out, (b) to provide for sensitively designed and managed eco-tourist facilities that have minimal impact on the environment both on and off-site. (2) This clause applies if development for the purposes of an eco-tourist facility is permitted with development consent under this Plan. (3) The consent authority must not grant consent under this Plan to carry out development for the purposes of an eco-tourist facility unless the consent authority is satisfied that: (a) there is a demonstrated connection between the development and the ecological, environmental and cultural values of the site or area, and (b) the development will be located, constructed, managed and maintained so as to minimise any impact on, and to conserve, the natural environment, and (c) the development will enhance an appreciation of the environmental and cultural values of the site or area, and (d) the development will promote positive environmental outcomes and any impact on watercourses, soil quality, heritage and native flora and fauna will be minimal, and (e) the site will be maintained (or regenerated where necessary) to ensure the continued protection of natural resources and enhancement of the natural environment, and (f) waste generation during construction and operation will be avoided and that any waste will be appropriately removed, and (g) the development will be located to avoid visibility above ridgelines and against escarpments and from watercourses and that any visual intrusion will be minimised through the choice of design, colours, materials and landscaping with local native flora, and (h) any infrastructure services to the site will be provided without significant modification to the environment, and (i) any power and water to the site will, where possible, be provided through the use of passive heating and cooling, renewable energy sources and water efficient design, and (j) the development will not adversely affect the agricultural productivity of adjoining land, and (k) the following matters are addressed or provided for in a management strategy for minimising any impact on the natural environment: (i) measures to remove any threat of serious or irreversible environmental damage, (ii) the maintenance (or regeneration where necessary) of habitats, (iii) efficient and minimal energy and water use and waste output, (iv) mechanisms for monitoring and reviewing the effect of the development on the natural environment, (v) maintaining improvements on an on-going basis in accordance with relevant ISO 14000 standards relating to management and quality control.

Should a preliminary question be determined?

As foreshadowed above, r 28.2 of the UCPR provides that the Court may make orders for the determination of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
The parties were in agreement as to the relevant principles in relation to the Court's discretion to order the determination of a separate question. These principles have been considered and applied many times, for instance in Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 at [10]-[18], Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 at [30]-[36], and in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [87]-[97]. The principles were usefully summarised by Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8 at [10] as follows: (a) Generally speaking, all issues should be tried and decided at the same time. (b) It is for the party seeking the order to show to the Court that separate decision of a question is appropriate. (c) Separate decision of a question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. This gives effect to s 56 of the Civil Procedure Act. Thus, the procedure needs to be fair and involve real savings in time and cost. (d) Separate decision of a question may be appropriate where it is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. (e) In particular circumstances separate decision of a question may be appropriate even if it will not bring the proceedings to an end. This may occur where the decision will substantially narrow the field of controversy by obviating unnecessary and expensive hearing of other questions or where the decision carries with it a strong prospect that the parties will then be able to agree upon resolution of the proceedings. But on such occasions care must be exercised lest fragmentation of the proceedings (particularly where the exercise of appeal rights is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. (f) Separate decision of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to remaining issues in the proceedings (and thus require the remaining issues to be dealt with by another judge). (g) Where the question sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and all the facts upon which that question has to be considered should be agreed or clearly ascertainable. (h) Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely. All these principles are relevant to the determination of this case and so will be discussed below, seriatim, where apposite to each issue.

Minister's submissions

The Minister (the applicant on the motion) argued that the purpose of the application was "to achieve economies in time and expense in the resolution of the proceedings and to obviate the necessity for a full merits hearing on all issues". This is because, the Minister submitted, if the question as to the correct characterisation of the Development was resolved in its favour, the substantive proceedings would be disposed of.
As evidence, the Minister relied on two affidavits of Ms Donette Holm, a solicitor for the Minister, dated 23 January 2018 and 27 February 2018. Ms Holm deposed that the Minister's preliminary assessment of the Proposal identified a number of issues of concern, including the following going to its permissibility: The Proposed Development is not permissible as the Proposed Development is not properly characterised as an "eco-tourist facility" under the Port Stephens LEP. The Proposed Development is not sensitively designed and located so as to minimise bulk, scale and overall physical footprint or visual impact due to the height, length and sighting of the buildings in the context of the surrounding landscape and the amount of fill required to develop the site. The Proposed Development is not sensitively designed and located so as to minimise ecological impact as the Proposed Development will: (a) substantially (and potentially, significantly) impact endangered ecological communities (saltmarsh and swamp oak); (b) impact the adjoining Tilligerry Nature Reserve and SEPP 14 Coastal Wetlands in a manner that has not been assessed; and (c) result in a net loss of vegetation and estuarine habitat, including endangered ecological communities, in a sensitive coastal area.
The Minister argued that the Development should therefore not be characterised as an 'eco-tourist facility', but is more properly considered a 'mixed use development' consisting of 'hotel or motel accommodation', 'serviced apartments' and an 'entertainment facility'. If this was the case, the Development would be prohibited within the current RU2 zoning, and would therefore, as per s 89E(2) (now s 4.38(2)) of the EPA Act, be incapable of being approved by the consent authority (in this instance, the Minister).
The Minister acknowledged that the separate question is a mixed question of fact and law, however submitted that such a situation is not fatal to an application for such a question to be heard separately (citing Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 at [44]).
The Minister contended that determination of the separate question would be more efficient, in relation to both time and expense. It was submitted that the scope of evidence required for determination of the proposed separate question would be significantly narrower than the evidence required to determine the merits of the application, and would be limited to town planning and ecology evidence concerning the application of the definition of 'eco-tourist facility' in the PS LEP to the Proposal. That is, limited to consideration of whether the development is sensitively designed and located so as to minimise the impacts specified in paragraph (c) of the definition of 'eco-tourist facility' (bulk, scale and overall physical footprint, ecological impact and visual impact). The Minister submitted that, having regard to the definition of 'eco-tourist facility', the Court should not accept that characterisation of the development would require consideration of bushfire issues, the presence of acid sulphate soils, flooding impacts, loss of vegetation due to construction of a road, the public interest, or non-compliance with cl 5.13 of the PS LEP. As such, there would be no need, in determining the preliminary question, for expert evidence from a hydraulic engineering expert, a traffic expert, a contamination expert or a visual expert, all of which would be required for a substantive merits review of the Proposal.
The Minister argued that where there is overlap between issues likely to require expert evidence at the hearing of the separate question and those likely to require expert evidence at a substantive hearing, they would only need to be considered at a preliminary hearing to the extent they are relevant to the proper characterisation of the Proposal.
There was some discussion during the hearing about the extent of overlap between the factual matters relevant to the determination of the separate question and the factual matters relevant to the substantive matter.
The Minister accepted that there would be some overlap, however, argued that the overlap was not so fundamental that there would not be efficiencies that could be gained by the hearing of the separate question (Transcript, p 8).
The Minister posited that the definition of eco-tourist facility is such that there are a limited number of issues to be determined, relative to the full list of matters set out in cl 5.13. The Minister's reasoning for this was, not only that there are fewer matters to be considered in the definition of eco-tourist facility, but the extent to which each issue must be examined. The Minister noted that the test in the definition was the minimisation of physical footprint and ecological or visual impact through sensitive design and location. The test was not, the Minister submitted, focussed on all of the impacts of the development (Transcript, pp 6-8). By way of example, the Minister discussed potential impact on endangered ecological communities (EEC), which has been identified as an issue. The Minister submitted that, at a hearing of the separate question it would be sufficient for the purposes of characterisation of the development to hear evidence of whether there had been efforts to locate and design the Proposal to minimise the impact on EEC, without needing to turn to a full assessment of what that impact might be (Transcript, p 10).
On this basis, the Minister estimated that a preliminary hearing on the proposed separate question could be accommodated within 2-3 days, whereas hearing the substantive matter would require 7-10 days.
In response to the Applicant's contention that the hearing of the separate question, even if decided in the Minister's favour, would not bring an end to the proceedings because the Applicant may seek to amend its application to fall within the definition of 'eco-tourist facility', the Minister noted that this presupposed that the amendments required to bring the Proposal within the definition would not be so significant as to render the Proposal a different development (thus requiring a new application), effectively a transformation to a different proposal.

Applicant's submissions

The Applicant opposed the motion, arguing that the separate question was neither dispositive of the proceedings, nor would it facilitate the just, quick and cheap resolution of the proceedings. It was the Applicant's position that the usual rule that all issues should be heard together ought not be departed from in this instance.
The Applicant contended that because the separate question was a mixed question of fact and law, and the facts are contentious and will require the calling of expert witnesses, the question is not appropriate for separate and preliminary determination.
Further, the Applicant argued that there was substantial overlap between the questions of fact to be determined in the separate question and those questions of fact to be determined in the substantive matter. Issues that the Minister contended need not be considered in determining the separate question, such as bushfire and flooding, are issues that are inherently linked to the matters required to be determined by the separate question (for example, ecological impacts and the amount of fill and its effect on flooding). The Applicant submitted that the degree of overlap meant that the ecological issues raised by the Minister in its contention on permissibility are the same as those raised in its contention on ecology. The planning issues raised by the Minister in its contention on permissibility are also raised in its contention on town planning.
The Applicant noted the Minister's position that the Court would not be required to consider the matters at cl 5.13 of the PS LEP in its determination of the preliminary question, however argued that issues relevant to the separate question are also relevant to the matters set out in cl 5.13 and that the issues ought therefore be heard and determined at the same time. The Applicant further submitted that there was a similarity in the issues to be considered in the definition of eco-tourist facility and cl 5.13, and that this meant that the defined term ought to be read in the context of cl 5.13 (and in particular, that the meaning of "sensitively designed" must be informed by the requirements of cl 5.13).
The Applicant contended that in any event the determination of the separate question will not result in significant savings of time or cost. It relied on an affidavit of its solicitor, Ms Naomi Simmons, dated 14 February 2018 to, amongst other things, estimate the time and cost required in order to hear the separate question and that required in order to hear the substantive matter. Ms Simmons estimated in her affidavit that a hearing on the proposed question is likely to take almost the same amount of time in preparation, joint conferencing and attendance before the Court as the substantive proceedings, that is, six days for the separate question and seven days for a substantive hearing.
As alluded to at [34] above, the Applicant argued that the proposed separate question is not dispositive of the proceedings as, even if it was heard and resolved in the Minister's favour, it was not likely to result in a substantial saving of time or expense as the Applicant could seek leave to amend the Proposal or appeal the decision of the Court. If the separate question was heard, and the Applicant was successful, it argued, such is the overlap between the issues that the issues dealt with in hearing the separate question would have to be re-heard in the substantive proceedings. Additionally, it noted that in circumstances where the separate question was heard, and the Applicant was successful, further delay would be occasioned because the matter would not be listed for merits hearing until such time as a separate question has been determined and a judgment has been handed down (Transcript, p 32).
With respect to the separate question being one of mixed fact and law, the Applicant considered that the facts of the present matter are more akin to the facts in Royal Motor Yacht Club (Broken Bay) v Northern Beaches Council (No 4) [2016] NSWLEC 126 (where an application for a separate question was refused) than those in Dial A Dump (where such an application was granted). In Dial A Dump, the Applicant contended, there was no overlap in the issues to be considered in determining the preliminary question (whether the applicant had an interest in land) and the issues to be determined in the substantive matter (quantum of compensation), whereas in Royal Motor Yacht Club (Broken Bay) v Northern Beaches Council (No 4) the merits issues "overlapped and informed" the separate question.

Consideration

It is convenient to structure the deliberation part of my judgment by considering the relevant principles in relation to the Court's discretion whether or not to order the determination of a separate question in proceedings as were set out in summary in the judgment of Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council. Those principles were set out in paragraph [21] above. Reciting those principles, seriatim, provides a useful checklist of the matters the Court should consider.

All matters arising in proceedings should be heard concurrently and determined in one judgment

It is appropriate that the Court commences its consideration by confirming that it has generally been accepted that all matters arising in proceedings should be heard concurrently and determined in one primary judgment. The courts have long recognised that adopting that approach is most likely to accord with the overriding approach to litigation to proceed in a manner that would achieve a just, quick and cheap resolution, it being accepted that if all issues are determined together then a just resolution will be achieved most expeditiously. This approach gives effect to s 56 of the Civil Procedure Act. All participants in adjudication processes in this country are, essentially, charged to adopt such a course unless special circumstances warrant the adoption of a different approach.
In these proceedings the parties took diametrically opposed stances with the Minister arguing that its application on the Motion was intended to "achieve economies in time and expense in the resolution of the proceedings and obviate the necessity for a full merits hearing on all issues". In contrast, the Applicant argued that the usual rule that all issues should be heard together ought not be departed from, as to do so would not facilitate the just, quick and cheap resolution of the proceedings. For reasons which I will now explain, I consider that the Minister's optimism that a cheaper and quicker resolution is achievable, if the separate question pathway is followed, is misplaced.

Onus rests with the Minister seeking the separate question pathway

The next preliminary principle to confirm is that the onus rests squarely with the Minister to satisfy the Court that in these proceedings there are sufficient grounds to justify the Court ordering that the separate question pathway should be followed. As the normal course is that all issues arising in proceedings be heard together, the party seeking a deviation from that normal course rightly bears the burden to convince the Court that its arguments have merit. I have concluded that in the context of the considerations I will now elaborate upon, the Minister has failed to satisfy that onus.
The Court must now focus on the question whether the separate question pathway would facilitate the just, quick and cheap resolution of the real issues in the proceedings. In short, the procedure adopted must be both fair and should demonstrably indicate that there will be real savings in time and costs. The Court has concluded that far from being clear that there would be real savings in time and costs, the opposite could be the outcome. Again for reasons I will elaborate, the Applicant's assessment of the time required to arrive at an end point which is determinative of the whole Class 1 proceedings, is more likely to be correct.

Will there be a saving in time and expense if a separate question is ordered?

I have concluded that there is minimal chance that the separate question pathway will be a faster one than proceeding to hear the Class 1 application. When one focusses on the PS LEP definition of eco-tourist facility, there are two components which should be relatively easy to determine and one component that could potentially be lost in a mire of conflicting evidence. The first component, whether the Proposal constitutes "a building or place that provides temporary or short-term accommodation to visitors on a commercial basis" should not be a complicated question to resolve. The second component, whether "a building or place is located in or adjacent to an area with special ecological or cultural features" should be capable of being determined on a threshold assessment of the facts. In short, what is the ecological and/or cultural status of nearby land to the Site? The answer to that question should be uncontroversial, a factual matter the parties should agree upon.
However, the third component of the characterisation assessment: whether the building or place is sensitively designed and located so as to minimise bulk, scale and overall physical footprint and any ecological or visual impact" is, in the Court's assessment, far from being straightforward. The word "any" attached to ecological and visual impact, creates a broad compass. It is to be anticipated that many an expert will have potentially differing views. This third component of the eco-tourist facility requires an assessment whether, prospectively, the Proposal can be established, managed and performed in a way that minimises impacts. In essence the definition lays down performance standards which, if not met, would place the Proposal outside the definition and into prohibited territory.
Of course there will be factors that might not need to be considered at the threshold when determining whether the Proposal can be brought by the Applicant within the definition, but going by the arguments before me the parties are at loggerheads as to which aspects may or may not have to be examined if I were to direct that a separate question be considered. Further, I consider it highly relevant that the definition of eco-tourist facility links cl 5.13 to the consideration of the definition. Clause 5.13(3) was set out in paragraph [19] above. In the Court's view the way by which the definition of eco-tourist facility has been cast, inextricably links it to the "checklist" (as I have chosen to call it) of considerations found in cl 5.13(3). I reject the Minister's submissions that the determination of the characterisation of the Proposal can be carried out without reference to cl 5.13(3). In essence, the Minister said that one could curtail or contain the range of issues to be examined to determine whether the Proposal can fit within the definition - the compass of issues would not necessarily be broad - when determining the separate question.
In the Court's view, if the Applicant is confident that its expert evidence can satisfactorily address each of the criteria set out in cl 5.13(3) then conceivably the Proposal might, in the end, be confirmed as being an eco-tourist facility. However the journey to that point will inevitably be a long and complex one, traversing many differing disciplines. It may be that the Minister, relying on expert evidence, can demonstrate that the Proposal cannot be such a facility, but to reach that point in the proceedings will inevitably involve the hearing of evidence called by both sides. Because of the approach taken in the PS LEP to the definition of eco-tourist facility, building in a qualitative assessment on a range of issues, one can anticipate that there will be a range of opinions on each issue. For instance, in order to be a compliant proposal, the Proposal must be "sensitively designed", but there is no hard and fast rule as to what may or may not be sensitive. So the Court anticipates experts with differing views as to whether the design is sensitive. Likewise, with the use of the word "minimise" when it comes to bulk and scale and overall physical footprint and ecological impact and visual impact, again the Court anticipates a range of views likely to be expressed by expert witnesses.
There is, in the Court's view, no clear cut distinction between the range of issues needed to be addressed in the context of the required qualitative assessments for the proposed separate question compared to the range of issues needed to be addressed, all qualitative assessments, for a full hearing of the Class 1 Application. The Court does not accept that, in the context of the critical issue of the characterisation of the Proposal, necessarily focussed on whether it will be sensitively designed and located so as to minimise bulk, scale and overall physical footprint and any ecological or visual impact, there will be any saving in time and expense. The exercise that would be required to determine the separate question is so dependent upon expert evidence assisting the Court, I accept the submissions of the Applicant that there would be very little discernible difference in time required.
The Court does not believe that the characterisation of the Proposal can be separated from any analysis of the meaning and application of the definition of the eco-tourist facility as it appears in the PS LEP. This is a Proposal where the Applicant is entitled to place its evidence in full before the Court in an effort to convince the Court, prospectively, that the "performance standard" or criteria for this land use, as found in component (c) of the definition and cl 5.13, can be met. Inextricably, the factual assessment of the components of the Proposal will lead to a determination of the potential lawfulness or otherwise of the Proposal: in essence, whether it can come within the LEP definition.
With respect to the issue of credibility of witnesses, a factor mentioned in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council, given the degree to which the definitional issues in this case will need to be determined following receipt of expert evidence, it is highly likely that the credibility of the witnesses will be called into issue. Is witness 1 as expert as witness 2 to venture a reliable opinion on the given question? In the context of the extensive parameters of the matters to be addressed, by virtue of cl 5.13(3) alone, being qualitative assessments based on differing professional expert opinion, controversy and credibility is to be expected.
The Court does not accept that the determination of the separate question is likely to be dispositive of the proceedings. Later in this judgment I explore in detail the implications of a mooted possible appeal and I also explore the prospect of the development application for the Proposal being amended, by deleting components which might render the Proposal more acceptable. In both instances, these scenarios weigh against the Minister's motion as indicating that the separate question pathway is unlikely to be dispositive of the proceedings.
The separate question pathway is unlikely to substantially narrow the field of controversy. Given that the resolution of the proposed separate question would require a multi-day hearing which would require extensive, (in the Court's opinion), examination of law and facts, the exercise would be similar to that required for a full hearing. Further, where the parties express radically different assessments of the time that would be required to hear the separate question, then the Court should be additionally wary. The Court considers that it is unavoidable, in determining whether the Proposal falls within the definition of eco-tourist facility, that the mix of law and fact will involve many contentions not without complexity. Assertions regarding differential factual assessments will be controversial and the resultant intertwined legal analysis will, as a consequence, not be simple. In short, the facts upon which the separate question must focus can be anticipated to be highly contentious, thereby rendering the legal determination difficult.

Whether the prospect of an appeal is a proper consideration

Although the prospect of an appeal from a judgment in the first instance should, preferably, not be allowed to be a major influence on the mind of judges properly performing their adjudication role, in circumstances where the objective is to achieve a just, quick and cheap resolution of the real issues in the proceeding, there is a rational basis to look beyond the determination of the separate question and decide, whatever the outcome with respect to that question, whether that is likely to be the end of the matter. In the context of a significantly expensive development proposal (which by reason of its estimated great cost, I surmise that the Proposal must be forecast by the Applicant to be likely to be commercially profitable if finally established), which in this case is estimated to be about $230 million in project costs, adopting a pragmatic perspective is justifiable. With so much at stake, it would be inevitable that the Applicant would pursue all available pathways to achieve a resolution in favour of its proposal. Accordingly, should it fail at the "starting blocks" by losing on the separate question - say that its proposed development is prohibited because it is unable to be characterised as an eco-tourist facility - it would seem more than likely, "on the cards", that such a finding would be tested. Such a "testing" on appeal of a finding on the separate question may or may not be successful, but if it is successful the Applicant would simply return to the "starting blocks" to have the consideration of its Class 1 application commenced again.
Reviewing the authorities on the relevance of a potential appeal, it would seem that each case has been, correctly in my view, assessed on the respective relevant circumstances arising. Although the prospect of an appeal is not determinative, it is nevertheless a factor that can and has been taken into consideration. Given the charge to the judiciary to seek a pathway that achieves a just, quick and cheap outcome, I consider that in the circumstances of this case, ordering the determination of the separate question will not achieve that desirable outcome, in the context of a likely scenario of an appeal. If the question which constitutes the proposed separate question was a more clear cut or confined question of law, my view might have been different. However, in this case the inextricably interwoven questions of law and fact obfuscates the issue.
Pepper J in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4), wherein Her Honour did not agree to order a separate question, said at [22]:
While it is true that if the separate question is answered in the council's favour it will be wholly dispositive of the proceedings at first instance, there is no guarantee that the Court's decision will not be appealed. Put another way, the determination of the separate question is unlikely to assist in finality of litigation. On the other hand, Pepper J in Dial A Dump Industries Pty Ltd v Roads and Maritime Services at [42]: The submissions can be rejected for the following reasons. First, the spectre of an appeal thereby fragmenting and delaying the final determination of the DADI and ALF claims, and augmenting the cost of the DADI proceedings, is not determinative (Perilya Broken Hill Limited v Valuer-General (No 5) [2015] NSWLEC 20 at [82]). Given the size of the claim, it is likely that, applying this logic, whether separately determined or not, the losing party will appeal the decision of the Court. Where, in a claim of this magnitude, the proceedings may be relatively swiftly disposed of if the question is answered in the negative, resulting in significant savings in time and costs to the parties, even if the outcome may be challenged elsewhere, the Court, ought to facilitate this by ordering the separate question. In Perilya Broken Hill Limited v Valuer-General (No 5) [2015] NSWLEC 20 at [82] Biscoe J observed: The answer to the separate question would be the last major step in determining before trial what evidence is relevant, the parties and the Court having devoted much energy to that task as this judgment attests. If, as the VG contends, the answer is that the minerals are assumed to be privately owned - which was the agreed basis on which the parties proceeded before Lloyd AJ - then the public ownership possibility raised by the Court of Appeal at [76] of its judgment can be put to rest. Of course, there is the spectre of delay that is always present whenever determination of a separate question is ordered, of leave to appeal against the determination being granted before trial and, if a stay of the trial is also ordered, of further delay. I take that into account. However, that is not determinative. Further, it cannot be assumed that leave or a stay would be ordered given that the trial would be unlikely to take more than three days if the Court upholds the VG's private ownership contention. Both parties filed written submissions in relation to the answer to the separate question in 2013, which I summarised in my December 2013 judgment. If the parties wish to supplement them with oral submissions, oral submissions should only take a few hours and I am available to hear them later this week.
The likelihood of a prospective appeal following a full Class 1 hearing, in circumstances where a separate question pathway is not followed, would conceivably result in a shorter timeframe to reach a final conclusion than if the separate question pathway had been followed. If all the issues are heard together via the usual pathway, including the same characterisation issue that would have been at the core of the separate question, then there may be a multiplicity of reasons why an assessment of a project of such a proposed scale is given either the green or red light by the Court. With a multiplicity of reasons constituting a Class 1 judgment, some of which might be the determination of merit issues, either party would be more fully informed of their chances of success should they be considering an appeal after an omnibus judgment. If the initial judgment is confined to a more restricted determination, in this case characterisation of a proposed land use to determine whether it is prohibited, the chances of a challenge is probably more likely, given that the economic incentive of doing so is sufficiently great. On the other hand, an omnibus judgment, providing a number of grounds for the final determination, in this case is less likely to be conducive to an appeal.

The implications of s 89E(3)

The Court considers the implication of s 89E(3) (now s 4.38(3)) of the EPA Act is a further factor that weighs in favour of the Applicant resisting the Minister's motion. The effect of s 89E(3) is that development consent may be granted for a SSD despite the development being partly prohibited by an environmental planning instrument. The Court considers that in this case there is fertile ground for legal argument that even if components of the Proposal are prohibited, where such prohibition of components provide the arguable basis for the whole Proposal being prohibited because with those components it cannot be an eco-tourist facility, it is not difficult to conceive of an alternative argument to the effect that even with those prohibited components, s 89E(3) contemplates that consent might nevertheless be capable of being granted. Is it the dog that wags the tail, or the tail that wags the dog? For the purposes of this judgment on the Motion, I have not seen fit to explore this issue, being the relevance and interpretation of s 89E(3), in any depth. However, I cannot ignore the fact that the Court would anticipate extensive argument on the meaning and implications of s 89E(3) and that the final determination of the associated issues would most likely give rise to the determination of questions comprising a mixture of fact and law, conceivably assisted by the receipt of expert evidence, quite possibly extensive, examining component parts of the Proposal. Therefore, taking into account the potential implications of s 89E(3), I consider this is a factor that goes to the question whether a separate question ought be ordered. I have concluded that this factor weighs against the Minister's motion.

The potential of an amendment to the application

Further, counsel for the Applicant made it clear to the Court that it was within contemplation that "troublesome components" of the Proposal (the Court's description, not the Applicant's) could conceivably be truncated or excised from the Proposal. If aspects of the Proposal, particular components or activities, were identified as the very components or activities which pushed the Proposal into prohibited territory, that is by causing it to be defined as something other than a permissible eco-tourist facility, then by way of an amendment application, either in the course of the current Class 1 proceedings or possibly via a new development application, the troublesome components might be deleted.
Pragmatically, the Court must accept that if the "stakes are high enough" then the Applicant will utilise whatever avenues are available to it, such as the prospect of an amendment to the Proposal which it foreshadowed in submissions. It is likely that until the Applicant either secures a consent or faces an omnibus refusal on a number of grounds (including merit assessment grounds), then the identification of issues capable of being isolated and overcome and the determination of related separate questions, will not see an end to the proceedings. Consequently, being mindful of the overriding objective of s 56 of the Civil Procedure Act 2005 to achieve a just, quick and cheap determination of proceedings, the Court concludes that as the Applicant is entitled to argue that an amendment to the Proposal may convert it from being potentially prohibited to potentially permissible, with such an argument quite possibly based on the receipt of expert evidence, then this constitutes a further basis for dismissing the Minister's Motion.

Conclusion

In the context of all of the matters I have addressed in this judgment, I have determined that the Applicant has succeeded in resisting the Minister's Notice of Motion which, accordingly, will be dismissed.

Orders

The Court orders that: 1. The Minister's Notice of Motion be dismissed; 2. The Applicant's Class 1 Application in these proceedings be listed in the ordinary course so that all issues, including issues requiring findings on questions of law, be heard and determined together; 3. There be no order as to costs. 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: 09 April 2018

At a glance

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Judgment (17 paragraphs)

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Cases Cited (6)

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