The applicant lodged a development application for the construction of a detached dual occupancy development on land in Lot 1 in DP 1045061 known as 35 Bele Place, Kiama.
Currently there is a single dwelling house on the land known as 35 Bele Place. 35 Bele Place is part of a large lot residential estate. Around eight of the lots in the residential estate, including 35 Bele Place, gain access by a shared right of carriageway from Bele Place.
If the detached dual occupancy development were to be approved, the occupiers of the dual occupancy dwellings on 35 Bele Place would also gain access by this shared right of way.
Kiama Municipal Council ("the Council") refused consent to the development application on 26 June 2018.
The applicant appealed against that refusal to this Court on 17 December 2018. The Council filed its statement of facts and contentions on 1 March 2019. Contention 1 was that:
"The DA must be refused because the owner's consent to the making of the application to use of the shared right of carriageway for the development has not been provided from all of the respective owners."
The applicant filed its statement of facts and contentions in reply on 27 May 2019.
The proceedings, being proceedings to which s 34AA of the Land and Environment Court Act 1979 ("the Court Act") applies, were fixed for a conciliation and hearing on 12 and 13 August 2019.
On 1 July 2019, the Council filed a notice of motion seeking that contention 1 of its statement of facts and contentions filed on 1 March 2019 be dealt with by way of separate question, that is to say, that contention 1 should be dealt with separately from all other issues raised in the proceedings, under Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005. This would require the vacation of the conciliation and hearing set down for 12 and 13 August 2019 and in its place the fixing of a hearing of the separate question.
As is usual for proceedings to which s 34AA of the Court Act applies, the Court had made directions in preparation for a conciliation and hearing, including for joint conferencing of experts and the preparation of a joint expert report. The parties' respective planners had conferred and filed a joint expert report on 15 July 2019.
Sciacchitano v The Council of the Municipality of Kiama [2019] NSWLEC 104 | Case summary | Zoe
The Council's notice of motion for a separate question was heard today. The applicant opposes the motion.
The Council submits that it is appropriate to deal with contention 1 as a separate question. Contention 1 raises a jurisdictional issue. If the consent of the owners of the shared right of way is required for the development application made by the applicant, but has not been obtained, the Court would have no power to grant development consent to the applicant's development application: see Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245. Determination of the separate question in the Council's favour would therefore be dispositive of the proceedings.
The Council submitted that there would thereby be a saving of hearing time and cost for the parties. The conciliation and hearing have been fixed to commence in Kiama, as is the usual practice. The proceedings have been fixed for two days, the first day being for the conciliation and, if that is not successful, to immediately proceed to the hearing on that day or the second day.
The Council submitted that if there was a hearing of the separate question only, part or the whole of only one day would be required and this would be in Sydney, thereby saving the expense and time of travelling to Kiama and of a second day of hearing.
The applicant opposes the Council's motion for a separate question for eight reasons. First, there was delay in the Council applying for a separate question to be heard. The proceedings were commenced on 17 December 2018, the Council's statement of facts and contentions was filed on 1 March 2019, but the Council's notice of motion seeking a separate question was only filed on 1 July 2019.
Secondly, the proceedings are governed by s 34AA of the Court Act. By reason of the nature of these proceedings, the expeditious and efficient disposal of such proceedings is paramount. The Land and Environment Court Practice Note for Class 1 Residential Development Appeals applies to proceedings governed by s 34AA of the Court Act. Amongst other matters in the practice note, paragraph 71 states that all matters in such proceedings should generally be heard and determined together and not separately.
Thirdly, ordering a separate question would divert the parties from their preparation of the other contentions and for the hearing. However, the applicant notes that, by reason of the Council's delay in bringing the motion, a good deal of the preparation for the hearing, including the evidence to be adduced, has already been undertaken, so the saving that might come from having a separate question is less.
Fourthly, there is no reason why a Commissioner of the Court could not resolve contention 1 as part of the scheduled and imminent hearing. There is nothing about the nature of contention 1 which makes it inappropriate for a commissioner to deal with the contention.
Fifthly, contention 1 is not the only contention raised by the Council which is potentially determinative of the proceedings. There are other contentions raised by the Council which also would, if determined in the Council's favour, dispose of the proceedings.
Sixthly, being proceedings under s 34AA of the Court Act, there is the possibility that the proceedings may be resolved in the conciliation phase prior to any hearing. It is possible that contention 1 may be resolved by negotiation between the parties but even if it is not directly resolved, the resolution of the other contentions may result in contention 1 not being pressed by the Council.
Seventhly, a significant saving in time and expense has not been shown to likely result if there were to be a separate question ordered.
Finally, contention 1, although raising a legal issue, may still involve a factual inquiry concerning the use of the right of way, amongst other matters. Resolution of the contention is not solely a legal question on undisputed facts.
I consider that a separate question should not be ordered in the circumstances of this case. Firstly, the question as articulated in contention 1 does not adequately expose the issues separating the parties and therefore is not appropriate to be fixed for hearing as a separate question in its current form.
The current development application only seeks consent for the development involving the carrying out of the dual occupancy development on Lot 1, including the erection of the new dwelling (in addition to the existing dwelling) and the change in use of Lot 1 from a single dwelling house to a detached dual occupancy. The development application does not seek consent to carry out any works on the shared right of way or to use the right of way for any purpose. On the face of the development application, it does not relate to the shared right of way. This is the applicant's argument.
Nevertheless, the Council contends that the development application impliedly seeks a change in use of the shared right of way from use for the purpose of dwelling house to use for the purpose of dual occupancy development. As such, the development application does seek consent for use of the shared right of way. In this circumstance, the consent of the owners of the right of way is required but has not been obtained. This issue is similar to that dealt with by the High Court in North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470.
Alternatively, if the development application does not relate to the shared right of way, the Council contends that the development application is futile. Granting consent to the detached dual occupancy development on Lot 1 will not grant consent to use the shared right of way. Another consent would be required. Unless and until that other consent is obtained, any dual occupancy development on Lot 1 could not be used, as lawful access could not be achieved.
The applicant contests that there would be a change in use of the shared right of way. The applicant contends that the shared right of way already is a use for the purpose of a private road and approving the dual occupancy development on Lot 1 will not lead to any change in the use for this purpose of the shared right of way. This argument is similar to that dealt with in Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 and Chamwell Pty Limited v Strathfield Municipal Council (2007) 151 LGERA 400.
I consider that contention 1 should therefore be amended to better articulate the arguments of the Council and to better enable the competing arguments between the parties to be ventilated.
Secondly, there is no clear advantage in ordering that any revised contention be heard and determined separately from the other issues in the proceedings. The hearing and determination of any revised contention will depend on the facts of the particular development application made, the development proposed in the development application, the land to which the development application relates, the terms and use of the shared right of way, and the other developments that currently use the right of way. The separate question, although expressed as jurisdictional and hence legal, depends on the findings of such facts. Adducing evidence and making submissions about these facts will take similar time whether the revised contention is dealt with separately or along with other issues in the proceedings.
Thirdly, the late stage at which the separate question is sought means that any savings of time and cost will be reduced. The hearing is less than a month away. The parties have already incurred the time and cost of preparing expert evidence. The conciliation hearing is listed for only two days, as is customary for proceedings under s 34AA of the Court Act. A hearing of the separate question would take part to the whole of one day. The saving that would be achieved by having a separate question would therefore only be of the second day.
Fourthly, the question would only be dispositive of the proceedings if it were to be decided in one way, that is, in favour of the Council. It would not be dispositive if the applicant were to succeed. Indeed, if the applicant were to succeed, having a separate question would add to the delay and cost because there would need to be a further hearing at a later date. But even if the Council were to succeed, it is highly likely that the applicant would appeal any decision on the separate question. This would add cost and increase delay.
Fifthly, one of the reasons advanced for having a separate question is to have a judge determine the legal question. But this advantage could still be achieved if the hearing of the proceedings were to be fixed before a Commissioner with legal qualifications. As a matter of practice, this can be done in this case. Directions can be made for the better articulation of the contention and the preparation of outlines of submissions before the hearing of the contention by the legal commissioner in the same way as would have been done for the hearing of the contention as a separate question by a judge.
Sixthly, these proceedings concern a small-scale residential development governed by s 34AA of the Court Act. There is an expectation that these types of proceedings will be dealt with expeditiously. The nature of s 34AA proceedings is that they must first proceed to a conciliation but then, if the conciliation is unsuccessful and is terminated, proceed immediately to a hearing. There is also an expectation that all issues in proceedings governed by s 34AA of the Court Act will be dealt with at the same time: see para 71 of the practice note.
In these circumstances, I am not minded to order that contention 1 be dealt with separately from the other issues in the proceedings. The notice of motion should be dismissed.
There is a need to make further directions in order to prepare the matter for hearing, including preparing for the hearing and determination of contention 1 as it may be revised. Accordingly, I make the following orders and directions:
1. The notice of motion filed 1 July 2019 is dismissed.
2. The parties' planning experts are to prepare a further joint report addressing the applicant's amended plans by 5 August 2019.
3. The respondent is to file and serve any amendment to contention 1 of its statement of facts and contentions and written submissions addressing contention 1 as amended by 5 August 2019.
4. The applicant is to file and serve written submissions in reply by 8 August 2019.
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Decision last updated: 24 July 2019