Land and Environment Court New South Wales Medium Neutral Citation: R.I.G Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2020] NSWLEC 155 Hearing dates: 23 October 2020 Date of orders: 23 October 2020 Decision date: 19 November 2020 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [19] Catchwords: CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Separate questions ordered Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 28.2 Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4) [2016] NSWLEC 126 Whittaker v Northern Beaches Council (No 2) [2018] NSWLEC 94 Category: Procedural and other rulings Parties: R.I.G Consulting Pty Ltd (Applicant) Queanbeyan-Palerang Regional Council (Respondent) Representation: Counsel: Y R Hazan, solicitor (Applicant) A Menyhart, solicitor (Respondent) Solicitors: Hazan Hollander (Applicant) Bradley Allen Love Lawyers (Respondent) File Number(s): 2020/00156307 Publication restriction: Nil Judgment 1. On 23 October 2020, I made orders pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') that the questions specified in an amended notice of motion filed on behalf of R.I.G Consulting Pty Ltd ('applicant') on 9 September 2020 be determined separately from any other question in the proceedings and before any further trial of the proceedings. These are my reasons. Background 1. These Class 1 proceedings concern an application filed 26 May 2020 appealing against the refusal by Queanbeyan-Palerang Regional Council ('Council') on 13 November 2019 to grant development consent for a three lot subdivision of Lot 4 in DP 285984, located at 71 MacDiarmid Road, Burra ('Land') into three lots of 6ha, 2.5ha and 1.36ha respectively. 2. Council's statement of facts and contentions filed 8 July 2020 ('SFC') contends that the proposed subdivision is prohibited pursuant to cll 4.1B(4)(a) and 4.1B(5) of the Palerang Local Environmental Plan 2014 ('PLEP') because the Land was itself a "resulting lot" and the subdivision would create lots with an average size less than that prescribed by the lot size map for land zoned E4 Environmental Living. More particularly, the two contentions in relation to the contended prohibition provide as follows: "PART B(1): CONTENTIONS WHY THE APPLICATION MUST BE REFUSED 1. The proposed development is prohibited under Clause 4.1B(5) of the PLEP because the Site is a resulting lot. Particulars a. The Site is zoned E4 Environmental Living under the PLEP. b. The Site was created by a subdivision under Clause 20 of the YLEP. c. [T]he Site is a resulting lot as defined under Clause 4.1B(6) of the PLEP. d. [T]he purpose of the proposed subdivision of the Site for residential accommodation. 2. The proposed development is prohibited as the average size of the proposed lots is less than the minimum size shown on the lot size map for the Site under the PLEP. Particulars a. Clause 4.1B(4)(a) of the PLEP applies to applications for the community title subdivision of land zoned E4 Environmental Living. b. Clause 4.1B(4)(a) allows consent to be granted for the subdivision of community title land zoned E4 where the minimum average lot size is not less than the minimum size shown on the lot size map in relation to that land. Applied here, clause 4.1B(4)(a) requires a minimum average lot size of 6ha. c. The proposed development will result in an average lot size of 3.286ha. d. Clause 4.6 of the PLEP does not apply as the proposed development results in more than two lots of less than the minimum area specified for such lots by a development standard with the E4 Environmental Living Zone (cl.4.6(6)(a) of the PLEP). e. In the alternative, no variation request under clause 4.6 of the PLEP has been made." 1. The SFC also raised other matters including that the Land was not suitable for the proposed development; that the proposed development is likely to adversely impact on the amenity and character of the Burra subdivision; that the proposed development is contrary to the strategic vision for the locality as established under the draft Queanbeyan-Palerang Local Environmental Plan 2020; and that the proposed development is contrary to the public interest. 2. At the second directions hearing before the Assistant Registrar on 13 July 2020, the applicant (not being legally represented prior to August 2020) and Council's legal representative agreed that the hearing would be completed within one day. The appeal was then set down for hearing on 27 January 2021. 3. Given the nature of the contentions, it is unusual for a matter of this nature to be completed in one day. However, as noted above, at the time the matter was set down for hearing, the applicant did not have the benefit of legal representation. 4. After the matter had been set down for hearing, the applicant retained Yves Raphael Hazan, solicitor, who thereafter filed a notice of motion on 3 September 2020 (subsequently amended on 9 September 2020) seeking an order pursuant to r 28.2 of the UCPR. 5. The amended motion sought an order that the following questions be separately determined: "1.1 Is the subdivision for which the applicant seeks development consent a subdivision to which the provisions of clause 4.1B(4)(a) of the Palerang Local Environmental Plan 2014 (the LEP) apply? 1.2 If so, is the grant of development consent to the development application precluded by that clause? 1.3 Is lot 4 DP 285984 a "resulting lot" within the meaning of clause 4.1B(6) of the LEP? 1.4 If so, is the subdivision proposed by the development application one for which development consent must not be granted in accordance with clause 4.1B(5) of the LEP?" 1. The amended motion was supported by an affidavit of Mr Hazan affirmed 3 September 2020 who deposes: "… 3. The issue between the parties is that the Respondent contends that the proposed development is prohibited under clause 4.1B(5) of the Palerang Local Environmental Plan 2014. The Respondent's position is that the clause 4.1B(5) prohibits the proposal and that it is without an ability to consent to the proposal. 4. Determining the separate question identified in the notice of motion dated 3 September 2020 will result in a substantial saving in time and costs for the Applicant. If decided favourably to the Respondent, the proceedings will end; otherwise, the parties can proceed to conciliation. No conciliation has yet occurred due to the Respondent's position that it cannot consent as a matter of law. 5. If the question is not determined separately, the Applicant will incur significant fees of expert evidence and preparing for the hearing. Mr Glenn Roberts, the director of the Applicant, informs me, and I verily believe that the Applicant is likely to incur expert fees of about $18,500, wasted if the question is answered favourably to the Respondent. …" 1. The amended motion came before me sitting as duty judge on 11 September 2020 and proceeded by audiovisual link. Mr Hazan appeared for the applicant and Ms Menyhart appeared for the respondent. Mr Hazan read his affidavit and provided written submissions dated 10 September 2020. Ms Menyhart indicated that Council neither consented to nor opposed the orders sought in the amended motion. 2. Having considered the material, I informed the parties that, on the minimal material before the Court, I was reluctant to grant the relief sought in the amended motion but would allow the parties time to have further discussions. The amended motion was adjourned to 17 September 2020. 3. On 17 September 2020, the Court was informed that it was agreed between the parties that the questions were capable of being "determined on the documents" and that the parties were in the process of finalising an agreed statement of facts upon which the preliminary questions as to prohibition would be determined. As I was of the opinion (shared by the legal representatives) that, irrespective of the orders sought in the amended motion, it was unlikely that the hearing otherwise set down for a single day on 27 January 2021 would be completed on that day, with the agreement of the parties that hearing date was vacated and the amended motion was adjourned to 23 October 2020. 4. On 22 October 2020 the agreed statement of facts was provided to the Court and the parties appeared briefly before me on 23 October 2020 and provided further submissions. Consideration 1. The power to make orders for a question to be decided separately is contained in r 28.2 of the UCPR, which provides that: 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. 1. The principles applicable to the exercise of the Court's discretion to order the determination of a separate question were distilled by Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 at [10] in the following terms: "(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." 1. The principles have been further considered by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [10], [87]-[99] and by this Court in Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 at [30]-[36], Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 at [14], Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4) [2016] NSWLEC 126 at [10]-[12], Whittaker v Northern Beaches Council (No 2) [2018] NSWLEC 94 at [8]-[9], M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101 at [14], and more recently in Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 at [22]-[27]. 2. Having considered the evidence and having heard the further submissions of the parties, I consider that the questions so specified are appropriate to proceed by way of separate determination from any other question in the proceedings and before any further trial of the proceedings. I am satisfied that the amended motion raises an important issue for determination which could be potentially dispositive of the proceedings and, given the procedural history I have detailed, and the fact that the parties have now agreed as to the relevant facts and evidence, that the preliminary determination of the questions will facilitate the just, quick and cheap resolution of the proceedings. 3. As such, I consider it appropriate that orders be made generally in accordance with the orders sought in the amended motion. Orders 1. The orders of the Court made on 23 October 2020 are: 1. The questions specified below be determined separately from any other question in the proceedings and before any further trial of the proceedings: 1. Is the subdivision for which the applicant seeks development consent a subdivision to which the provisions of clause 4.1B(4)(a) of the Palerang Local Environmental Plan 2014 ('PLEP') apply? 2. If so, is the grant of development consent to the development application precluded by that clause? 3. Is Lot 4 DP 285984 a "resulting lot" within the meaning of clause 4.1B(6) of the PLEP? 4. If so, is the subdivision proposed by the development application one for which development consent must not be granted in accordance with clause 4.1B(5) of the PLEP? 1. The hearing on separate question is listed on Friday 18 December 2020. 2. The respondent is to file and serve its written submissions on or before 4 December 2020. 3. The applicant is to file and serve its written submissions on or before 11 December 2020. 4. The respondent is to file and serve any written submissions in reply on or before 15 December 2020. 5. The proceedings are listed for pre-trial directions by way of Microsoft Teams before the Judge hearing the matter on 11 December 2020 at 9.15am. ********** 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: 19 November 2020