Before the Court today is a notice of motion filed on 15 June 2018 ('Notice of Motion') by Russell Whittaker ('applicant'), the applicant in a Class 1 appeal against the deemed refusal of DA N0512/17 ('DA') by Northern Beaches Council ('Council'). The Notice of Motion seeks an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that a contention raised by the respondent be heard and decided separately by the Court prior to the conciliation conference in these proceedings.
The DA seeks approval for the demolition of existing buildings and construction of 12 seniors living dwellings, basement parking, strata subdivision, and landscaping works on the land known as 69 to 71 Central Road, Avalon ('site'). The appeal against Council's deemed refusal of the DA was commenced in this Court on 9 May 2018.
The matter which the applicant seeks the Court resolve as a separate question is whether State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ('SEPP HSPD') applies to the site ('identified issue').
Pursuant to Pittwater Local Environmental Plan 2014 ('PLEP'), the site is zoned R2 Low Density Residential, with the consequence that seniors housing is prohibited development in the zone. Additionally, the geotechnical hazard map in PLEP identifies part of the site as "geotechnical hazard H2".
Whittaker v Northern Beaches Council [2018] NSWLEC 94 | Case summary | Zoe
Clause 4(6) of SEPP HSPD identifies the land to which SEPP HSPD does not apply:
(6) Land to which Policy does not apply
This Policy does not apply to:
(a) land described in Schedule 1 (Environmentally sensitive land), or
(b) land (other than land to which Warringah Local Environmental Plan 2000 applies) that is zoned for industrial purposes, or
(c) (Repealed)
(d) the land to which Sydney Regional Environmental Plan No 17 - Kurnell Peninsula (1989) applies, or
(e) the land to which State Environmental Planning Policy (Western Sydney Parklands) 2009 applies.
Schedule 1 of SEPP HSPD defines "environmentally sensitive land" as including:
Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions:
…
(i) natural hazard,
…
The applicant contends that "natural hazard" does not mean "geotechnical hazard" in the sense identified in PLEP and that, accordingly, the provisions of SEPP HSPD applies to the site. The applicant seeks an order that this matter be determined by way of a separate question.
The principles applicable to the exercise of the Court's discretion to order the determination of a separate question were explained by Bathurst CJ, with whom Meagher and Ward JJA agreed, in Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 ('Jackson Lalic Lawyers') at [18]:
The separate question was ordered under r 28.2 of the UCPR. The circumstances in which such an order should be made are well established. It is appropriate to exercise the power under the rule where there is a preliminary question of fact or law critical to the disposition of the proceedings, in the sense that if it is decided in one way it will necessarily dispose of them: Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93 at 98. In CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601, it was stated by Kirby P at 606 that the procedure should not be adopted in respect of matters not ripe for determination. In that case it was stated by Kirby P at 606, that a matter is ripe for determination were it is a central issue between the parties and the resolution of the issue will either obviate the necessity for litigation altogether, or substantially narrow the field of controversy.
The principles were also distilled by Biscoe J as follows in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 ('820 Cawdor Road') at [10] and his Honour's approach has 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 2005 (NSW) ('the CP 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. Where the facts upon which a decision depends are contentious, confidence in the utility of the separate question process may be less likely.
The applicant relies upon the affidavit of Tony Sattler dated 15 June 2018. Mr Sattler deposes that in his experience as a solicitor, the cost of the conciliation conference in these proceedings would be between $45,000 and $50,000, and that if the issue of whether SEPP HSPD applies to the site is not determined before the conciliation conference, then the DA will not be able to be approved even if all of the merit issues are resolved between the parties.
Further, Mr Sattler deposes that the cost of preparing for and attending a two day hearing on the merits of the application would be between $65,000 and $70,000, without making allowance for argument on the identified issue which could add an extra half day to the proceedings. Mr Sattler opines that the cost of a one day hearing on the identified issue would be $30,000 and potentially be determinative of the appeal.
Mr Sattler also deposes that a full hearing including the merit matters raised by Council in its Statement of Facts and Contentions would involve four or possibly five expert witnesses on each side.
During the course of the hearing today, Ms Darmody, solicitor for Council, advised that Council consents to the application that the identified issue be decided as a separate question. Notwithstanding the agreement of the parties, the Court must be independently satisfied that it is appropriate to order a separate question having regard to the matters identified by the matters Court of Appeal in Jackson Lalic Lawyers and Biscoe J in 820 Cawdor Road.
I note that, depending on the outcome, determination of the separate question may be dispositive of the appeal, and that this is one of the factors identified by Biscoe J as an appropriate consideration. I also accept, as was put to the Court by Mr Staunton, counsel for the applicant, that whether SEPP HSPD applies to the site is a question which will have to be resolved in the course of these proceedings in any event.
However, even having noted these matters, I would not be inclined to make an order that the identified issue be resolved by way of a separate question if it were not the fact that the matter could be dealt with relatively quickly and with minimal expert evidence. In this regard, I am informed by the parties that if any expert evidence is required it is likely to be very narrow in scope and that hearing on the separate question would only last between half a day and a day.
In those circumstances, I note that this would be a considerable saving in time and resources if the separate question were to prove to be dispositive of the appeal and that even if the separate question were otherwise decided, the fact that the power to grant the DA would therefore have been established may allow the parties to come to agreement on the merit matters outstanding.
Therefore, I conclude that to grant the separate question would facilitate the quick, just and cheap resolution of the proceedings in accordance with the dictates of s 56 of the CP Act.
[3]
Orders
The Court orders that:
1. Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the following question be separately determined:
1. Whether State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies to the land known as 69 to 71 Central Road, Avalon, the subject of Development Application N0512/17 for construction of 12 seniors living dwellings, basement parking, strata subdivision, and landscaping works.
1. The parties are directed to prepare Short Minutes of Order providing agreed directions for the preparation of an agreed bundle of documents and the exchange of written submissions 21 days before the allocated hearing date.
2. The parties have leave to approach the registrar for the allocation of a hearing date.
[4]
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Decision last updated: 21 June 2018