Tricon Services Group Pty Ltd v Manly Council [2010] NSWLEC 256

Land and Environment Court of New South Wales

CITATION : Tricon Services Group Pty Ltd v Manly Council [2010] NSWLEC 256

APPLICANT Tricon Services Group Pty Ltd PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 10584 of 2010

CORAM: Craig J

KEY ISSUES: PRACTICE AND PROCEDURE :- separate question for determination - Uniform Civil Procedure Rule 28.2 - validity of steps to realign a road pursuant to s 262 Local Government Act 1919 (now repealed).

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Local Government Act 1919 (now repealed) Roads Act 1993

CASES CITED: Kevin Snell Pty Ltd v Manly Council [2005] NSWLEC 193

DATES OF HEARING: 2 December 2010 9 December 2010

EX TEMPORE JUDGMENT DATE : 9 December 2010

APPLICANT P C Tomasetti SC with J L Doyle (Barrister) SOLICITORS Hunter Lawyers LEGAL REPRESENTATIVES:

RESPONDENT L R Finn (Solicitor) SOLICITORS HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

CRAIG J

9 December 2010

10584 of 2010 TRICON SERVICES GROUP PTY LTD v MANLY COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: Tricon Services Group Pty Ltd seeks development consent to redevelop land known as 46-48 North Steyne, Manly (the site). Without being exhaustive, it proposes new development comprising ground floor retail or commercial premises with residential premises above. It is a site located opposite to Manly Beach. 2 Tricon has appealed to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 by reason of the failure of the Council to determine its development application. Its Class 1 application has not yet been fixed for hearing. 3 By its Statement of Contentions filed in the proceedings, the Council has identified eleven grounds upon which it contends that Tricon's development application should be refused. Contention numbered 7 is expressed as follows: "The proposal involves works within an area designated in Attachment 4 of the Business Zone DCP for proposed road realignment." Particulars are provided but it is unnecessary to recite these for present purposes. 4 Notwithstanding the reference to the Business Zone DCP, Contention 7 is founded upon steps said to have been taken in 1961 to realign the road known as North Steyne, whereby a depth of almost five metres along the frontage of the site would be required for road widening. If those steps are legally effective, development within the road widening area is limited to structures of a 'temporary' nature. 5 By reason of this circumstance, the applicant applies pursuant to UCPR 28.2 to have separately determined a question which, in substance, is whether the actions taken by the Council in 1961 have the legal consequence of restricting development upon the land in the manner for which the Council contends. It is not suggested that the determination of this question will, if resolved favourably to the applicant, obviate the need to litigate other issues in the proceedings. 6 The Council relies upon a notice published in the Gazette on 28 April 1961, the effect of which, so it is contended, realigned North Steyne pursuant to the provisions of s 262 of the Local Government Act 1919 (now repealed). It is acknowledged that publication in the Gazette alone is insufficient to achieve the consequence for which the Council contends, it being necessary that a notice also be served upon the owner of affected land in accordance with s 262(3) of the Local Government Act 1919 prior to its repeal in 1993 (cf Kevin Snell Pty Ltd v Manly Council [2005] NSWLEC 193 at [41]). 7 Ordinarily, the determination of a separate question that is not likely to bring the proceedings to a conclusion, or, at least, considerably truncate the time and issues for hearing, would not be the subject of an order pursuant to UCPR 28.2. However, the issue raised by Contention 7 is one that is not confined to the particular development application which is the subject of the present appeal.