The matter before the Court is a notice of motion filed on 21 June 2016 by Northern Beaches Council ('the Council'), the Respondent in a Class 1 appeal by the Applicant (Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd) against the deemed refusal of a development application lodged with the Council in September 2015.
The development application sought consent for what was described as "[a]lterations and additions to an existing marina at Royal Motor Yacht Club involving the removal of 28 existing berths and new extension to accommodate a total of 67 new berths [and] Relinquishment of between 6 and 12 existing swing moorings". The development application was accompanied, inter alia, by an Environmental Impact Statement dated September 2015 ('the EIS'). The development application and the EIS were attached to the Class 1 application.
The notice of motion filed by the Council seeks an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 ('the UCPR') that a particular question be heard separately, and in advance of any other issue. The question articulated in the motion is:
Is the use of that part of the site the subject of development application (Development Application N0379/15) which is within the W1 Natural Waterway zone for the purpose of a marina within the meaning of the Pittwater Local Environment Plan 2014 a lawful existing use, within the meaning of s 106 of the Environmental Planning and Assessment Act 1979.
The motion came before me on 8 July for hearing. The Council was represented by Ms O Adams, solicitor. The Royal Motor Yacht Club (the Applicant), was represented by Ms N Bergman. The Royal Motor Yacht Club has indicated its consent to the order sought by the Council. The Council moved on an affidavit of Ms Adams affirmed on 20 June 2016.
Having read the affidavit and considered the EIS, I heard short oral submissions made by Ms Adams generally reflecting the matters stated in her affidavit. Understandably, given the agreement between the parties, there was no contradictory evidence.
As I indicated to the parties on 8 July, I was aware of, and had given some consideration to, the Class 1 application and the documents attached thereto including, in particular, the EIS which contained information in relation to the nature and extent of the area over which existing use is claimed and the relationship between that area and the extent of the development for which consent was sought. Some material attached to the EIS (including a joint memorandum of advice of Mr Noel Hemmings QC and Mr Peter Tomasetti SC dated 18 December 2014 styled "Existing Use Rights Memorandum of Advice" prepared for the Royal Motor Yacht Club) was specifically referred to in Ms Adams' affidavit. Ms Adams also deposed to the fact that the Council had received two further (contradictory) legal opinions of Mr Patrick Larkin SC as to the existence of any existing use rights apparently obtained by the Horseshoe Cove Association, a body which I was informed was an objector to the development.
In particular, I indicated to the parties that despite their "agreement", I was not satisfied that the principles guiding the exercise of the discretion (considered in a number of recent cases including 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; 195 LGERA 170 at [10]; Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [87]-[97], Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 at [6]-[11] and Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 at [30]), had been properly the subject of consideration. I was not satisfied that the Council had discharged its burden to show that all the issues in the proceedings should not be tried and decided at the same time and in particular, that the hearing of the proposed separate question would likely facilitate the just, quick and cheap resolution of proceedings (Civil Procedure Act 2005, s 56).
I also had a concern that the nature and extent of the evidence likely to be marshalled for the hearing of the separate question had not been agreed between the parties and it was unclear as to the time it would take it for the hearing of the separate question. In the circumstances, I was not comfortably satisfied that the factual circumstances in relation to the existing use rights issue were "clearly ascertainable". Conscious of the caution against separating proceedings unless it is "possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings": Idoport Pty Ltd v National Australia Bank Limited (15) [2000] NSWSC 1215 at [7], I suggested that the parties give further consideration to the matter and provide any further material on or before 13 July 2016.
On 12 July 2016 the Court received written submissions prepared on behalf of the Council. The submissions address (and seek leave to rely on) an amended notice of motion which adds an additional question being:
(b) If the answer to the question above is yes, what is the extent and nature of the lawful existing use?
The principles applicable to the exercise of the Court's discretion to order the determination of a separate question were distilled by Biscoe J as follows in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council at [10] and have been endorsed and applied by this Court on numerous occasions:
1. Generally speaking, all issues should be tried and decided at the same time.
2. It is for the party seeking the order to show to the Court that separate decision of a question is appropriate.
3. 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.
4. 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.
5. 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.
6. 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).
7. 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.
8. Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely.
The Court of Appeal considered the principles in Allandale Blue Metal Pty Ltd v Roads and Maritime Services at [87]-[97] and the principles were also considered by this Court in Dial a Dump Industries Pty Ltd v Roads and Maritime Services at [30]-[36] and Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 at [14].
Whilst I am conscious of the cautionary observations made in a number of earlier decisions, based on the material now submitted, I am comfortable that it is appropriate to make an order for a separate determination of the proposed questions in the amended notice of motion. My reasons may be briefly stated.
First, given the nature and extent of the material in support of the development application (including details of public consultation by way of formal submissions from residents and stakeholders), I accept that the likely (merit) issues of disagreement between the parties that would come up, as submitted by the Council and accepted by Royal Motor Yacht Club, "...cover multiple disciplines including town planning, visual impact, traffic and transport, ecology, water management and marine safety" and that each party intends to rely upon expert evidence in each of these disciplines. In those circumstances, I accept the parties' estimate of five to six days for the hearing on merit issues only. Further, despite earlier different time estimates by the parties, I am now informed that the estimate for any separate question(s) is a maximum of two days, on the basis that the nature of the evidence relied upon is primarily documentary and "some lay evidence".
Secondly, it is clear that the determination of the separate question(s) as outlined in the amended notice of motion is significantly likely to be entirely dispositive of the proceedings. Thus, the usual concern in relation to fragmentation, whilst a possibility, is a matter that is offset to a significant extent by the likely dispositive nature of the determination. Further, even if not finally dispositive, I am comfortable in this matter that disposition of a step necessary for the determination of at least one of the issues in the proceedings is most likely to have the effect of substantially narrowing the field of litigious controversy.
Thirdly, the parties agree that the evidence required for the separate question(s) is not evidence that would be required to resolve the remaining issues between the parties. During oral submissions the applicant indicated that it intended to rely upon three categories of evidence in relation to what may be "contentious" facts and these were photographic evidence, expert photogrammetrist evidence and lay witness evidence. Having considered the background material, I accept this position.
Fourthly, the nature of the likely evidence on the separate question (such as the photographic, photogrammaterist and eyewitness evidence concerning the extent and nature of the structures that existed on the waterway at certain historical points in time) would most likely be unrelated to the determination of the balance of the issues in the proceedings. As such, I accept the (common) submission that if the separate question(s) were answered in favour of the Royal Motor Yacht Club, that evidence (and the witnesses' credibility) would not be relevant in the further proceedings primarily involving the consideration of the merits of the proposed marina expansion.
Fifthly, whilst it is agreed that the separate question is one of mixed fact and law, the parties submit that, although some facts may be contentious, it is likely that certain facts (in relation to the preliminary issues) will be agreed.
In the circumstances, the Council has demonstrated that the hearing of the proposed separate question will likely facilitate the just, quick and cheap resolution of the proceedings (or at the very least a central and primary issue in the proceedings) by achieving real time and costs savings.
[3]
Orders
The order of the Court is that the following questions be determined separately and before any other question in the proceeding:
(a) Is the use of that part of the site the subject of development application (Development Application N0379/15) which is within the W1 Natural Waterway zone for the purpose of a marina within the meaning of the Pittwater Local Environment Plan 2014 a lawful existing use, within the meaning of s 106 of the Environmental Planning and Assessment Act 1979.
(b) If the answer to the question above is yes, what is the extent and nature of the lawful existing use?
The Court gives the following consequential procedural directions:
1. Leave is granted to rely on the amended notice of motion dated 12 July 2016.
2. The parties are to proceed forthwith to the Registry to obtain a hearing date of two days for the determination of the separate questions set out above.
3. The parties are to file an agreed statement of facts no later than five weeks before the hearing.
4. The Applicant is to file and serve any evidence no later than four weeks before the hearing.
5. The Respondent is to file and serve any evidence in reply no later than two weeks before the hearing.
6. The Applicant's written submissions are to be filed and served six working days before the hearing.
7. The Respondent's submissions are to be filed and served three working days before the hearing.
8. The Applicant's submissions in reply are to be filed and served one working day before the hearing.
[4]
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Decision last updated: 22 July 2016
Parties
Applicant/Plaintiff:
Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd