Land and Environment Court of New South Wales CITATION : Castle Constructions Pty Limited v North Sydney Council [2006] NSWLEC 665 APPLICANT: Castle Constructions Pty Limited PARTIES : RESPONDENT: North Sydney Council FILE NUMBER(S) : 11010 of 2005 CORAM: Biscoe J KEY ISSUES: Question of Law :- referral by Commissioner for determination by a judge – termination of referral LEGISLATION CITED: Land and Environment Court Act 1979 s 36(5) DATES OF HEARING: 24/10/2006 EX TEMPORE JUDGMENT DATE : 10/24/2006 APPLICANT: Mr T Robertson SC SOLICITORS Aitken McLachlan Thorpe LEGAL REPRESENTATIVES: RESPONDENT: Ms H P Irish, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 24 October 2006 11010 of 2005 CASTLE CONSTRUCTIONS PTY LIMITED v NORTH SYDNEY COUNCIL JUDGMENT HIS HONOUR: 1 In these Class 1 proceedings there was referred under s 36(5) of the Land and Environment Court Act 1979 what was said to be a question of law raised in the proceedings, to the Chief Judge for determination by a judge. That question then came before me yesterday for determination. 2 There was a threshold issue between the parties as to what the question was that had been referred. The respondent's counsel said that she thought that the question was: Whether the North Sydney Development Control Plan 2002 as amended ("Amended DCP") is inconsistent with the North Sydney Local Environmental Plan ("LEP") such that the provisions of the amended DCP prevent compliance with the Objectives of the North Sydney Centre of the LEP in breach of s 74C(5). 3 The applicant's senior counsel said that he thought the question was to the effect: Whether amendments to the DCP have no effect by reason that the amendments are inconsistent with the LEP or their application prevents compliance with the LEP. 4 Clarification of the question was left in abeyance while the hearing before me proceeded. The matter had been set down for hearing for half a day. At the end of yesterday it was quite apparent that there was a good deal left in the case. My impression is that it would be unlikely to finish within a further day, and that the identification of alleged inconsistencies involve factual inquiry on which planning expertise may assist. The parties took the opportunity overnight of considering their position and the way forward. 5 Senior counsel for the applicant overnight formulated and provided me with a document headed "Questions of Law", which I will place with the papers, which formulates what was said to be four questions of law which the applicant wished to agitate. It goes beyond the question that has been referred. 6 Counsel for the respondent referred to a "moving feast" in terms of reformulation of issues, and also referred to an email which she had sent last night to counsel for the applicant in proposing that the parties' planners jointly confer in relation to certain issues which I gather relate to identification of inconsistencies. 7 During the course of further discussion this morning, senior counsel for the applicant informed me that he had now received instructions to commence Class 4 proceedings to set aside the amended development control plan. 8 In the circumstances, the parties are now agreed that the referral of a question under s 36(5) of the Land and Environment Court Act 1979 should be terminated, with costs reserved. By consent, I make the following orders: (1) the referral by the Chief Commissioner under s 36(5) of a question, said to be a question of law, raised in the proceedings is terminated. (2) The costs of the referral are reserved. 9 It is then necessary for me to remit the matter back to the Chief Commissioner. It will be entirely a matter for him as to what should then occur. The remittal back to the Senior Commissioner should happen as quickly as possible. I direct that the parties arrange for the matter to be listed before the Senior Commissioner this week. 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.