Land and Environment Court of New South Wales CITATION : The Owners - Strata Plan No 855 v Gosford City Council [2010] NSWLEC 106 APPLICANT The Owners - Strata Plan No 855 PARTIES : RESPONDENT Gosford City Council FILE NUMBER(S) : 10230 of 2010 CORAM: Preston CJ KEY ISSUES: PRACTICE AND PROCEDURE :- separate determination of questions - whether facilitate just; quick and cheap resolution of real issues - order for separate determination not made - early final hearing of all issues ordered - directions for preparation for hearing made LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lemworth Pty Limited v Liverpool City Council [2001] NSWCA 389 (2001) 53 NSWLR 371 Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74 (2003) 124 LGERA 449 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 CASES CITED: Romeo v Pittwater Council [2006] NSWLEC 645 (2006) 149 LGERA 107 Salvation Army v Newcastle City Council [2000] NSWLEC 36 (2000) 107 LGERA 40 Scully v Leichhardt Council (1994) 85 LGERA 109 Starray Pty Limited v Sydney City Council [2002] NSWLEC 48 DATES OF HEARING: 16 June 2010 EX TEMPORE JUDGMENT DATE : 16 June 2010 APPLICANT P Tomasetti SC SOLICITORS Low Doherty & Stratford LEGAL REPRESENTATIVES: RESPONDENT M Fraser SOLICITORS P J Donnellan & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 16 JUNE 2010 10230 OF 2010 THE OWNERS - STRATA PLAN NO 855 V GOSFORD CITY COUNCIL JUDGMENT 1 HIS HONOUR: The respondent, Gosford City Council, by notice of motion filed 28 May 2010, moves the Court for an order under Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 that a question be heard and determined separately from and before other questions in the proceedings. The applicant opposes the motion. 2 The proceedings are an appeal by the applicant under s 97(1) of the Environmental Planning and Assessment Act 1979 against the actual refusal by the Council of the applicant's development application for the demolition of an existing residential flat building and the erection of a new residential flat building on land in Strata Plan 855 known as 120 Avoca Drive, Avoca. The land is currently zoned residential 2(a) under Gosford Planning Scheme Ordinance. In that zone, development for the purpose of residential flat building is prohibited. However, s 107 of the Environmental Planning and Assessment Act permits the continuance of an existing use, notwithstanding the provisions of an environmental planning instrument such as Gosford Planning Scheme Ordinance. Section 108 of the Act and cl 41 of the Environmental Planning and Assessment Regulation 2000 also permit certain redevelopment of an existing use. 3 The applicant, in the statement of environmental effects accompanying its development application, relies on these existing use provisions in the Act and Regulation as the source of power for the consent authority to grant development consent for the proposed development. The applicant asserts that the existing use for the purpose of residential flat building is of the whole of the land in Strata Plan 855. 4 The Council refused the development application on 13 August 2009. One of the reasons the Council stated in its refusal was: "1. The proposed residential flat building is prohibited as the proposal will extend over land which does not have the benefit of existing use rights. It is considered that the land having the benefit of the existing use rights is not the whole allotment, but rather the footprint and curtilage of the existing building." 5 The applicant appealed against the Council's decision on 31 March 2010. As is required by the Court's Practice Note - Class 1 development appeals, the Council filed a statement of facts and contentions. One of the Council's contentions, contention 1, is that "the proposed development is prohibited." The Council explains the reasoning for this contention in the particulars, including: "A. Part of the land, being the building footprint and curtilage of the existing residential flat building, has the benefit of existing use rights. The proposed development will extend well beyond that part of the land that has the benefit of existing use rights. B. The proposal does not have the benefit of the existing use rights and is therefore prohibited." 6 The issue between the parties, therefore, is not whether there is an existing use of the land for the purpose of residential flat building at all, but rather the extent of that use, that is to say, the unit of land in respect of which there is an existing use. The Council will rely on judicial decisions in which courts have held that the existing use applies to a unit of land less than the whole lot, such as Salvation Army v Newcastle City Council [2000] NSWLEC 36; (2000) 107 LGERA 40, Lemworth Pty Limited v Liverpool City Council [2001] NSWCA 389; (2001) 53 NSWLR 371 and Starray Pty Limited v Sydney City Council [2002] NSWLEC 48. On the other hand, the applicant will rely on judicial decisions that found the existing use extended to the whole of the land and was not confined to part or parts of the land, such as only the footprint of a building used for the purpose of the existing use in question, including Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 23; Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74; (2003) 124 LGERA 449 at [20] – [22], and Romeo v Pittwater Council [2006] NSWLEC 645; (2006) 149 LGERA 107 at [20], [31] – [32]. 7 On the hearing of the motion for a separate question, the Council further explained its contention using a plan depicting buildings and other structures and works on the strata lot. The Council had marked within the lot a lesser area, essentially around the footprint of the existing residential flat building on the land. The Council concedes that there is an existing use of this lesser area for the purpose of residential flat building. The Council's primary contention is that the existing use does not extend beyond this lesser area to the balance of the lot. On the balance of the lot there are other structures and works associated with the residential flat building. One of these is the car park area in the south-eastern corner of the lot which is used by the occupants of the residential flat building. The Council does not concede that the car park area is lawfully used for the purpose of the residential flat building and therefore is an existing use. 8 The Council also disputes that a part of the lot that rises steeply and is covered by lantana is used for the purpose of the residential flat building, notwithstanding the existence within this area of various structures and works. 9 The Council also explained that its contention is not only that the unit of land on which the existing use is carried out is bounded horizontally in the way I have summarised; the Council also claims that the unit of land on which the existing use is carried out is bounded vertically. The Council claims that the existing use currently extends only to the depth of the current foundations and footings of the existing residential flat building. The proposed development requires excavation one to two levels below the current foundations and footings. The Council contends that the stratum proposed to be excavated does not have the benefit of existing use rights. 10 In support of its motion for a separate question, the Council submitted that, if its contention that the existing use is limited to only part and not the whole of the lot were to be upheld by the Court, the proposed development (which extends over the whole lot) would be prohibited - the existing use could not found the permissibility of the proposed development. Hence, resolution of the Council's contention in the Council's favour would be dispositive of the proceedings. This makes the question suitable for separate determination under r 28.2. The Council contends this would save this parties incurring the costs of preparing for and conducting a hearing on the balance of the questions in the proceedings. 11 The applicant opposes a separate determination of the questions associated with the existing use and instead submits that all questions should be resolved at the same time at a final hearing. The applicant submits, first, that there would be duplication of evidence and hearing if there were to be a separate question. Evidence relating to questions of existing use may need to be given by town planners called by the parties, who would also give evidence as to other questions raised in the proceedings. A view of the site at Avoca by the Court would need to be undertaken for the existing use questions as well as for other questions in the proceedings. Hence, the applicant submitted there would not be a material saving by ordering the separate determination of the existing use questions from other questions in the proceedings. 12 Secondly, the applicant submits that the other issues in the proceedings would not require lengthy preparation or hearing time. The other issues are engineering and town planning in nature. The engineering issues relate to the excavation of the site and the protocol for disposition of the excavated material. Each party would call an engineer to deal with these issues. It may be that the parties' experts are able to agree or largely agree, after joint conferencing, on these engineering issues. 13 The issues concerning the impact of the proposed development on the current and future character of the area are town planning in nature and can be dealt with by the town planners called by each party to address the existing use questions. Addressing these town planning issues would extend the town planners' evidence beyond the existing use questions, but not extensively. 14 Hence, the applicant submits the additional time and cost in preparing for and conducting a final hearing of all questions is not so much greater than the time and cost of preparing and conducting a hearing of separate questions concerning existing use as to justify ordering a separate determination of the existing use questions. 15 Thirdly, the applicant submits that the Council's case on the existing use questions is weak and that if the Council is unsuccessful, the time and cost of preparing for and conducting the separate determination will in fact increase the costs compared to having a final hearing of all questions. This is because there would be duplication in holding two hearings. Furthermore, there would be delay. 16 Fourthly, the applicant submits that the existing residential flat building is in poor state of repair. It is currently let to six tenants. There is considerable anxiety amongst the tenants as to the future of the building. The tenants would like to know sooner rather than later as to their fate. The applicant submits that the preferable course is to have an early final hearing of all questions in issue, rather than two hearings which would prolong a final resolution of the matter. 17 Fifthly, the applicant submits that a separate determination may give rise to an appeal by one or other party who is dissatisfied with the Court's interlocutory ruling on the separate questions. This adds to delay, as well as expense. 18 Finally, the applicant submits it is an advanced state of preparedness for a final hearing of all questions. The applicant says it can have its evidence ready in three weeks. With an appropriate timetable for exchange of evidence and joint conferencing of experts, the proceedings could be ready for hearing of all questions within eight weeks. This is roughly the same time that a hearing on separate questions relating to existing use would occur. There would, therefore, be no material time advantage in ordering separate determination of questions rather than having a final hearing of all questions. 19 I find the applicant's arguments compelling and adopt them as my reasons (with the exception I make no finding as to the strength or weakness of the Council's contention as to existing use). 20 The questions concerning existing use are capable of separate determination under r 28.2, but I consider this course would not facilitate the just, quick and cheap resolution of all issues in the proceedings. 21 I note that Pearlman J came to the same conclusion in Scully v Leichhardt Council (1994) 85 LGERA 109 in declining to order the separate determination of questions as to the extent or area of land that enjoys the benefit of existing use rights. I adopt her Honour's reasons as well. I consider the preferable course is to make directions for the preparation of a final hearing of all questions. 22 For these reasons, I dismiss the Council's notice of motion. Although the applicant seeks its costs of the motion, I consider the usual order that applies to costs in Class 1 proceedings should apply, namely, that there be no order as to costs. I do not consider it fair and reasonable to order costs in the circumstances. 23 The Council's case was not without merit - the questions it isolated were capable of separate determination and would be dispositive if decided in the Council's favour. My reasons for declining to order a separate question did not relate to the nature of the questions but rather to balancing the comparative time and costs involved with preparing for and conducting a separate determination of questions as compared to a final hearing of all issues. I considered that the balance favoured ensuring the just, quick and cheap resolution of all issues, rather than separate questions. I therefore do not make any order for costs in relation to the Council's notice of motion. 24 The formal orders are that the Court: 1. dismisses the notice of motion filed by the respondent on 28 May 2010; and 2. makes no order as to costs. 25 Finally, I should make some directions to prepare the matter for hearing. The Court directs: 1. The Applicant file and serve any evidence upon which it intends to rely in relation to the questions of existing use rights, quantity of materials to be excavated from the site, any construction management plan and any conditions of development consent with respect to these issues by 7 July 2010. 2. The Respondent file and serve any evidence on which it intends to rely in relation to the questions in 1 above by 21 July 2010. 3. The Respondent is to prepare file and serve, in consultation with the applicant, a joint chronological bundle of documents containing both parties' documentary evidence on existing use rights by 28 July 2010. 4. The Respondent file and serve any evidence on which it intends to rely in relation to the issues concerning urban fit, character and context and geotechnical stability of the site by 7 July 2010. 5. The Applicant file and serve any evidence on which it intends to rely in relation to the issues in 3 above by 21 July 2010. 6. The experts engaged by the respective parties are to jointly confer and report in writing in relation to any issues still in dispute on 21 July 2010 by 4 August 2010. 7. List the matter for a four day hearing on 16 to 20 August 2010 before a judge commencing on 16 August 2010 at 10am in Court. 8. The Applicant is to file and serve written submissions addressing the issues of existing use and "derogation" of existing use rights by 2 August 2010. 9. The Respondent is to file and serve any submissions in reply to those referred to in 7 above by 9 August 2010. 10. Parties are to serve a copy of these directions, the statements of facts and contentions, Division 2 of Pt 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules on all experts upon whose evidence they propose to rely. An expert (including a parties' single expert) and the expert's report are to comply with the requirements of Division 2 of Pt 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules. 11. Experts are directed to give written notice to the Court and the party instructing them if for any reason they anticipate that they cannot comply with these directions. In that case, or if the experts have failed to comply with these directions, the parties will promptly list the matter before the Court for directions and give written notice to the other parties. Default without leave of the Court can result in the imposition of sanctions. 12. Experts are to ensure that a joint conference is a genuine dialogue between experts in a common effort to reach agreement with the other expert witness about the relevant facts and issues. Any joint report is to be a product of this genuine dialogue and is not to be a mere summary or compilation of the pre-existing positions of the experts. 13. A joint report is to identify the experts involved in its preparation, the date of their joint conferences, the matters they agreed about, the matters they disagreed about and reasons for agreement and disagreement. A joint report should avoid repetition and be organised to facilitate a clear understanding of the final position of the experts about the matters in issue and the reasoning process they used to reach those positions. Each expert is to sign and date the joint report. 14. Legal representatives are not to attend joint conferences of experts or be involved in the preparation of joint reports without the leave of the Court. 15. A party calling a witness may not, without the leave of the Court, lead evidence from the witness the substance of which is not included in a document served in accordance with the Court's directions. 16. If any witness is required for cross-examination, notice is to be given at least seven days before the hearing. 17. The respondent consent authority is to file and serve a bundle of documents relating to issues other then Contention 1 (existing use rights) by 2 August 2010 [14 days before the hearing]. The bundle is to contain copies of relevant environmental planning instruments, relevant extracts from development control plans and policies, and documents evidencing the lodgement, processing and determination of the application by the consent authority, including all submissions from objectors, and the decision of the consent authority but is not to otherwise include copies of any documents annexed to the development appeal. Unnecessary copying and duplication of documents is to be avoided. The bundle is to be subdivided into relevant divisions, paginated and have a table of contents. 18. The respondent consent authority is to file and serve a notice of objectors who wish to give evidence in the hearing, of whom the consent authority is aware, by 9 August 2010 [7 days before the hearing]. The notice is to identify the objector, their address, where they wish to give evidence (on site or in Court) and whether they made a written submission about the application (in which event, the notice is to provide the page number of that submission in the key bundle). If there is no submission, the respondent consent authority should, if possible, file and serve a short statement identifying the topics about which the objector wishes to give evidence. 19. The respondent consent authority is to file and serve draft conditions of consent (in both hard copy and electronic form) by 2 August 2010 [14 days before the hearing]. 20. The applicant for consent is to file and serve its draft conditions in response (in both hard copy and electronic form) by 9 August 2010 [7 days before the hearing]. 21. Parties are to notify promptly the Court if there is any material slippage in the timetable. 22. The parties have liberty to restore on three working days' notice. 23. At the hearing the evidence of experts is to be given by way of concurrent evidence, unless the hearing judge directs otherwise. 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.