Waluya Pty Ltd v Minister for Planning and Public Spaces

Background

1. The development site comprises properties at West Gosford, including 1-3 Faunce Street, 7A, 9 and 9A-11 Racecourse Road, 38 and 50 Young Street.
2. The Minister maintains that the development is properly characterised as a "transport depot" and as such, prohibited under Ch 5 of the State Environmental Planning Policy (Precincts - Regional) 2021 ('Regional SEPP'). Conversely, Waluya maintains that the development is properly characterised as "light industry" under the Regional SEPP (the 'light industry argument') or, in the alternative, a "bus depot" under the State Environmental Planning Policy (Transport and Infrastructure) 2021 ('TI SEPP') (the 'bus depot argument') and as such, is permissible.
3. Schedule 10 of the Regional SEPP provides the following definitions: transport depot means a building or place used for the parking or servicing of motor powered or motor drawn vehicles used in connection with a business, industry, shop or passenger or freight transport undertaking. light industry means a building or place used to carry out an industrial activity that does not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, other otherwise… industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity.
4. Whether a development can be characterised as 'light industry' will be contingent on whether the 'industrial activity' to be undertaken across the development does not interfere with the amenity of the neighbourhood.
5. The definition of "bus depot" under the TI SEPP does not need to be set out for the purposes of the motion for a separate question.
6. In support of its motion, the Minister reads the affidavits of Stephanie Anne Willis affirmed 14 September 2023 and 2 November 2023. Waluya opposes the application and reads the affidavit of Julide Ayas affirmed 15 November 2023.

Applicable principles

1. The power to order a question to be determined separately is contained in r 28.2 of the UCPR, which provides: 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.
2. The principles to be applied in approaching the exercise of the discretion conferred by r 28.2 of the UCPR are well-known and were summarised in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [87]-[97] (Ward JA) and Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50 at [14]-[15]. For present purposes, the following may be noted.
3. First, it is ordinarily appropriate that all issues in proceedings should be disposed of at one time and that "[t]he attractions of trials of issues rather than of cases in their totality, are often more chimerical than real": Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168].
4. Secondly, the exercise of the discretion to make an order for the determination of a separate question should be approached with an appropriate degree of caution, as "[i]t sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid": Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436].
5. Thirdly, an order for determination of a separate 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, so as to give effect to s 56 of the Civil Procedure Act 2005 (NSW) ('CP Act').
6. Fourthly, factors supporting the making of an order for the resolution of a separate question include where such an order may contribute to first, the prompt disposal of crucial issues in the litigation (or the whole action); second, the saving of time and cost by narrowing the issues in dispute; and third, the potential settlement of the litigation. An order for a separate question is unlikely to be appropriate where first, there are intertwined issues of fact or law and the separate question is likely to result in fragmentation of the proceedings; and second, there is likely to be significant overlap between the evidence adduced on the separate question and any residual question.

Minister's position

1. The Minister submits that the ordering of the separate question will facilitate the just, quick and cheap resolution of a central issue in the proceedings, thus giving effect to s 56 of the CP Act. The Minister provides three reasons. First, establishing whether the development is permissible is essential to understanding whether there is power to grant such consent and if determined that the proposed development is not permissible under either the Regional SEPP or the TI SEPP, this will dispose of a crucial issue in the proceedings, and potentially the whole proceedings. Second, early resolution will save substantial time and cost for both parties and the Court. Third, noting that the proceedings have been listed for a s 34 conciliation conference on 30 April 2024, determination of the separate question will better facilitate the prospect of settlement at conciliation.
2. In relation to costs that will be saved if the separate question is ordered, the Minister notes the evidence of Stephanie Anne Willis affirmed 2 November 2023 that costs (not including those that have already been incurred) which will be incurred by the Minister if resolved at the conciliation conference would be approximately $58,191. And, if the matter is not resolved and proceeds to an estimated six-day hearing, costs will be approximately $167,665. The Minister submits that even accepting Waluya's estimate of the costs (noted in the affidavit of Julide Ayas affirmed 15 November 2023) of a three-day hearing for the separate question alone to be between $149,000 to $264,300, the Court could infer that Waluya's costs for a full hearing would be considerably greater.
3. The Minister does not accept Waluya's position that the separate question and the substantive hearing of the Class 1 proceedings would entail "overlapping" evidence in relation to amenity impact (and therefore not shorten time to be spent on the proceedings overall) for two reasons.
4. First, the Minister submits that the exercise of characterising the development "is to determine the purpose for which development is sought to be carried": Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535; [1964] HCA 37; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27] ('Chamwell'). And, this exercise of characterisation should be done at "a level of generality which is necessary and sufficient to cover the individual activities, transactions and processes carried on, not in terms of the detailed activities": Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 ('Royal Agricultural Society'); Chamwell at [36].
5. In this regard, the Minister understands that Waluya intends to argue that the purpose of the development is properly characterised as 'light industry', and the Minister contends that according to Waluya's statement of environmental effects ('SEE'), the only activities that could conceivably fall within the definition of 'light industry' are maintenance/industrial activities that will be carried out in a proposed workshop on the development site with the rest of the site being for refuelling, bus manoeuvring and parking, which activities do not qualify as 'light industry'. While the Minster agrees that there will be 'industrial activity' taking place in the workshop which does not give rise to amenity impacts, and accordingly, that the activities in the workshop would be classified as 'light industry' under the Regional SEPP, the Minister submits that this 'light industry' classification could not go beyond the workshop.
6. Put simply, the Minister maintains that Waluya's light industry argument incorrectly emphasises activity in the workshop and wrongly focuses on that discrete part of the development (being the specific maintenance activities to be carried out in the proposed workshop) and ignores other substantial activities apart from the workshop described in the SEE which could not be properly characterised as 'light industry' (such as the fact that the development is to provide a place for buses to be parked when not being driven, parking for drivers and staff as well as facilities for refuelling and servicing of buses) thereby neglecting to consider the "purpose" of the development at the level of generality as required under Royal Agricultural Society.
7. Secondly, in the above circumstances, the determination of Waluya's argument in answering the separate question does not require extensive expert evidence, particularly in relation to amenity impacts because any inquiry in terms of 'light industry' is directed to whether an 'industrial activity' interferes with amenity and, given that the Minister agrees with Waluya's characterisation of the workshop being 'light industry' there will be no need for Waluya to bring extensive evidence in relation to amenity impacts resulting from the activities within the proposed workshop.
8. The Minister also notes that the affidavit of Stephanie Anne Willis affirmed 14 September 2023 indicates that issues regarding permissibility were already in question between Waluya and the Department of Planning and Environment prior to Waluya's lodgement of the development application.

Waluya's position

1. Waluya submits that if the motion is granted, the separate question alone would require a three-day hearing with significant costs consequences.
2. In relation to costs, Waluya relies on the affidavit of Julide Ayas affirmed 15 November 2023 which states that if the separate question is ordered and determined in favour of Waluya, it will have incurred additional costs of between $149,000 to $264,300 over those costs that would otherwise be incurred if the separate question hearing was not ordered.
3. Waluya submits that the estimate of costs provided in the affidavit of Stephanie Anne Willis affirmed 2 November 2023 relied upon by the Minister is misleading and underestimates costs as it is based on a need for expert evidence from traffic impact and flooding experts only. Waluya submits that as there is a fundamental difference between the parties as to which specific activities in the development proposal constitute 'industrial activity' (being part of the definition of 'light industry') and submits that 'industrial activity' is not limited to the workshop building (as contended by the Minister), because Waluya asserts that all of the development is intrinsically 'industrial activity'. As such, Waluya relies on the affidavit of Julide Ayas which sets out the need to adduce extensive expert evidence from a number of disciplines if the separate question hearing is ordered, including in relation to flooding, traffic impact, bulk earthworks, arboriculture, stormwater and civil engineering, geotechnical engineering, ecology and town planning.
4. Waluya also submits that if the separate hearing is ordered and ultimately determined against Waluya, it may be open for Waluya to appeal the Court's decision and as such, the Minister's suggestion that the separate question avenue would lead to finality in the subject litigation (as it disposes of the current proceedings) is incorrect.
5. In summary, Waluya submits that the separate question is a mixed question of fact and law, the issues are complex where the evidence required for determination of the separate question is inherently linked to the (otherwise raised) merit issues, and that the separate question pathway is unlikely to substantially narrow the field of controversy given the overlap between the issues central to the separate question and the merit issues requiring consideration in the substantive hearing. Simply stated, Waluya submits that the expert disciplines it intends to lead to answer the separate question will also be required to give evidence in the Class 1 proceedings.

Consideration

1. Considering the principles noted earlier in this judgment and the evidence before the Court, I have approached the exercise of the power to order a separate question with caution. Although not without some reluctance, I do not consider that it is appropriate to make an order for determination of the separate question. Primarily, while I have sympathy for the Minister's position, given the disparity in the evidence regarding the nature and extent of the evidence to be called and the time and costs that will be required for both the conduct of the separate question hearing and the substantive hearing, I cannot be satisfied that there will be a material saving of costs and time through determination of the separate question. My reasons, which partly accord with Waluya's submissions may be briefly stated.
2. First, there is significant conflicting evidence as to the likely costs that would be spent (or saved) if the separate question is ordered and determined. Although the Minister has not estimated costs of a (possible, but in my view not probable) three-day hearing for the separate question (as suggested by Waluya) but has instead referred to the estimated costs of the proceedings if settled after the s 34 conciliation conference as exceeding $55,000 and, if heard for an estimated six-day hearing, exceeding $165,000. Waluya estimates the costs for a three-day hearing of the separate question alone to be in the range of $149,000 to $264,300. It is Waluya's view that extensive evidence is required for determination of the separate question, a matter about which I have some doubt, which has driven its costs estimation.
3. Secondly, having received detailed submissions as to how Waluya intends to address the question of permissibility (in short, through establishing that activities over the whole of the development site constitute 'light industry' which will not have any amenity impact and, in the alternative, through the bus depot argument) and noting that the Minister does not dispute the 'light industry' characterisation in relation to activities if confined within the proposed workshop but disputes such categorisation across other aspects of the proposed development, I consider that it is open to Waluya to maintain that there will be extensive evidence required (even for the separate question) to ventilate its contentions in relation to the light industry argument and to rebut the Minister's assertion that only activities within the proposed warehouse can constitute 'light industry'. Whether the evidence is conclusive or not (again a matter about which I am not convinced) there will undoubtedly be some overlap in relation to the evidence sought to be relied upon between the hearing of the separate question and any ultimate hearing.
4. Thirdly, further to Waluya's assertion that "extensive" evidence is required (which I consider to be a matter for Waluya and ultimately the Court hearing the matter), in the circumstances, it would then be a question of whether the Minister decides to marshal any evidence in response to the issues of fact and law raised by Waluya and this is simply not known at this point in time.
5. Fourthly, and somewhat by repetition, I accept Waluya's submission that certain issues would be raised in the hearing of the separate question which will clearly overlap with merit issues of the substantive hearing (effectively meaning that evidence may be duplicated from both Waluya and the Minister). In such circumstances and in light of the evidence presently before me, I cannot clearly see that ordering the separate question would facilitate the quicker and cheaper resolution of the proceedings.
6. Fifthly, in circumstances where the Minister submits that if the separate question is determined adversely to Waluya, it could lead to the disposal of the whole of the proceedings and Waluya contends that there is a real possibility that if the resolution of the separate question is made against Waluya, it may result in an appeal, I am concerned that the determination of the separate question may create a multiplicity of proceedings resulting with an undesirable fragmentation of the proceedings.

Conclusion

1. In line with the Court's Practice Note - Class 1 Development Appeals for development appeals, as well as the relevant principles cited above, this matter should proceed in the ordinary course where all issues will be heard together and for those reasons above, I decline to order the separate question, and I dismiss the notice of motion.

Orders

1. The Court orders: 1. The Minister for Planning and Public Spaces' notice of motion filed 14 September 2023 is dismissed. 2. Costs are reserved.
2. The Court notes: 1. The Class 1 application is listed for a s 34 conciliation conference on 30 April 2024. 2. As the matter is listed for further directions before the Registrar on 6 May 2024, there is no need to make any consequential procedural orders following on from the dismissal of the notice of motion.

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: 15 March 2024

1. The Minister submits that the ordering of the separate question will facilitate the just, quick and cheap resolution of a central issue in the proceedings, thus giving effect to s 56 of the CP Act. The Minister provides three reasons. First, establishing whether the development is permissible is essential to understanding whether there is power to grant such consent and if determined that the proposed development is not permissible under either the Regional SEPP or the TI SEPP, this will dispose of a crucial issue in the proceedings, and potentially the whole proceedings. Second, early resolution will save substantial time and cost for both parties and the Court. Third, noting that the proceedings have been listed for a s 34 conciliation conference on 30 April 2024, determination of the separate question will better facilitate the prospect of settlement at conciliation.
2. In relation to costs that will be saved if the separate question is ordered, the Minister notes the evidence of Stephanie Anne Willis affirmed 2 November 2023 that costs (not including those that have already been incurred) which will be incurred by the Minister if resolved at the conciliation conference would be approximately $58,191. And, if the matter is not resolved and proceeds to an estimated six-day hearing, costs will be approximately $167,665. The Minister submits that even accepting Waluya's estimate of the costs (noted in the affidavit of Julide Ayas affirmed 15 November 2023) of a three-day hearing for the separate question alone to be between $149,000 to $264,300, the Court could infer that Waluya's costs for a full hearing would be considerably greater.
3. The Minister does not accept Waluya's position that the separate question and the substantive hearing of the Class 1 proceedings would entail "overlapping" evidence in relation to amenity impact (and therefore not shorten time to be spent on the proceedings overall) for two reasons.
4. First, the Minister submits that the exercise of characterising the development "is to determine the purpose for which development is sought to be carried": Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 534-535; [1964] HCA 37; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27] ('Chamwell'). And, this exercise of characterisation should be done at "a level of generality which is necessary and sufficient to cover the individual activities, transactions and processes carried on, not in terms of the detailed activities": Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 ('Royal Agricultural Society'); Chamwell at [36].
5. In this regard, the Minister understands that Waluya intends to argue that the purpose of the development is properly characterised as 'light industry', and the Minister contends that according to Waluya's statement of environmental effects ('SEE'), the only activities that could conceivably fall within the definition of 'light industry' are maintenance/industrial activities that will be carried out in a proposed workshop on the development site with the rest of the site being for refuelling, bus manoeuvring and parking, which activities do not qualify as 'light industry'. While the Minster agrees that there will be 'industrial activity' taking place in the workshop which does not give rise to amenity impacts, and accordingly, that the activities in the workshop would be classified as 'light industry' under the Regional SEPP, the Minister submits that this 'light industry' classification could not go beyond the workshop.
6. Put simply, the Minister maintains that Waluya's light industry argument incorrectly emphasises activity in the workshop and wrongly focuses on that discrete part of the development (being the specific maintenance activities to be carried out in the proposed workshop) and ignores other substantial activities apart from the workshop described in the SEE which could not be properly characterised as 'light industry' (such as the fact that the development is to provide a place for buses to be parked when not being driven, parking for drivers and staff as well as facilities for refuelling and servicing of buses) thereby neglecting to consider the "purpose" of the development at the level of generality as required under Royal Agricultural Society.
7. Secondly, in the above circumstances, the determination of Waluya's argument in answering the separate question does not require extensive expert evidence, particularly in relation to amenity impacts because any inquiry in terms of 'light industry' is directed to whether an 'industrial activity' interferes with amenity and, given that the Minister agrees with Waluya's characterisation of the workshop being 'light industry' there will be no need for Waluya to bring extensive evidence in relation to amenity impacts resulting from the activities within the proposed workshop.
8. The Minister also notes that the affidavit of Stephanie Anne Willis affirmed 14 September 2023 indicates that issues regarding permissibility were already in question between Waluya and the Department of Planning and Environment prior to Waluya's lodgement of the development application.

1. Waluya submits that if the motion is granted, the separate question alone would require a three-day hearing with significant costs consequences.
2. In relation to costs, Waluya relies on the affidavit of Julide Ayas affirmed 15 November 2023 which states that if the separate question is ordered and determined in favour of Waluya, it will have incurred additional costs of between $149,000 to $264,300 over those costs that would otherwise be incurred if the separate question hearing was not ordered.
3. Waluya submits that the estimate of costs provided in the affidavit of Stephanie Anne Willis affirmed 2 November 2023 relied upon by the Minister is misleading and underestimates costs as it is based on a need for expert evidence from traffic impact and flooding experts only. Waluya submits that as there is a fundamental difference between the parties as to which specific activities in the development proposal constitute 'industrial activity' (being part of the definition of 'light industry') and submits that 'industrial activity' is not limited to the workshop building (as contended by the Minister), because Waluya asserts that all of the development is intrinsically 'industrial activity'. As such, Waluya relies on the affidavit of Julide Ayas which sets out the need to adduce extensive expert evidence from a number of disciplines if the separate question hearing is ordered, including in relation to flooding, traffic impact, bulk earthworks, arboriculture, stormwater and civil engineering, geotechnical engineering, ecology and town planning.
4. Waluya also submits that if the separate hearing is ordered and ultimately determined against Waluya, it may be open for Waluya to appeal the Court's decision and as such, the Minister's suggestion that the separate question avenue would lead to finality in the subject litigation (as it disposes of the current proceedings) is incorrect.
5. In summary, Waluya submits that the separate question is a mixed question of fact and law, the issues are complex where the evidence required for determination of the separate question is inherently linked to the (otherwise raised) merit issues, and that the separate question pathway is unlikely to substantially narrow the field of controversy given the overlap between the issues central to the separate question and the merit issues requiring consideration in the substantive hearing. Simply stated, Waluya submits that the expert disciplines it intends to lead to answer the separate question will also be required to give evidence in the Class 1 proceedings.

1. Considering the principles noted earlier in this judgment and the evidence before the Court, I have approached the exercise of the power to order a separate question with caution. Although not without some reluctance, I do not consider that it is appropriate to make an order for determination of the separate question. Primarily, while I have sympathy for the Minister's position, given the disparity in the evidence regarding the nature and extent of the evidence to be called and the time and costs that will be required for both the conduct of the separate question hearing and the substantive hearing, I cannot be satisfied that there will be a material saving of costs and time through determination of the separate question. My reasons, which partly accord with Waluya's submissions may be briefly stated.
2. First, there is significant conflicting evidence as to the likely costs that would be spent (or saved) if the separate question is ordered and determined. Although the Minister has not estimated costs of a (possible, but in my view not probable) three-day hearing for the separate question (as suggested by Waluya) but has instead referred to the estimated costs of the proceedings if settled after the s 34 conciliation conference as exceeding $55,000 and, if heard for an estimated six-day hearing, exceeding $165,000. Waluya estimates the costs for a three-day hearing of the separate question alone to be in the range of $149,000 to $264,300. It is Waluya's view that extensive evidence is required for determination of the separate question, a matter about which I have some doubt, which has driven its costs estimation.
3. Secondly, having received detailed submissions as to how Waluya intends to address the question of permissibility (in short, through establishing that activities over the whole of the development site constitute 'light industry' which will not have any amenity impact and, in the alternative, through the bus depot argument) and noting that the Minister does not dispute the 'light industry' characterisation in relation to activities if confined within the proposed workshop but disputes such categorisation across other aspects of the proposed development, I consider that it is open to Waluya to maintain that there will be extensive evidence required (even for the separate question) to ventilate its contentions in relation to the light industry argument and to rebut the Minister's assertion that only activities within the proposed warehouse can constitute 'light industry'. Whether the evidence is conclusive or not (again a matter about which I am not convinced) there will undoubtedly be some overlap in relation to the evidence sought to be relied upon between the hearing of the separate question and any ultimate hearing.
4. Thirdly, further to Waluya's assertion that "extensive" evidence is required (which I consider to be a matter for Waluya and ultimately the Court hearing the matter), in the circumstances, it would then be a question of whether the Minister decides to marshal any evidence in response to the issues of fact and law raised by Waluya and this is simply not known at this point in time.
5. Fourthly, and somewhat by repetition, I accept Waluya's submission that certain issues would be raised in the hearing of the separate question which will clearly overlap with merit issues of the substantive hearing (effectively meaning that evidence may be duplicated from both Waluya and the Minister). In such circumstances and in light of the evidence presently before me, I cannot clearly see that ordering the separate question would facilitate the quicker and cheaper resolution of the proceedings.
6. Fifthly, in circumstances where the Minister submits that if the separate question is determined adversely to Waluya, it could lead to the disposal of the whole of the proceedings and Waluya contends that there is a real possibility that if the resolution of the separate question is made against Waluya, it may result in an appeal, I am concerned that the determination of the separate question may create a multiplicity of proceedings resulting with an undesirable fragmentation of the proceedings.

1. In line with the Court's Practice Note - Class 1 Development Appeals for development appeals, as well as the relevant principles cited above, this matter should proceed in the ordinary course where all issues will be heard together and for those reasons above, I decline to order the separate question, and I dismiss the notice of motion.

(1) The Minister for Planning and Public Spaces' notice of motion filed 14 September 2023 is dismissed.

(2) Costs are reserved.

(1) The Class 1 application is listed for a s 34 conciliation conference on 30 April 2024.

(2) As the matter is listed for further directions before the Registrar on 6 May 2024, there is no need to make any consequential procedural orders following on from the dismissal of the notice of motion.