Land and Environment Court of New South Wales CITATION : Southern Cross Constructions (NSW) Pty Ltd v The Owners of Strata Plan No. 20823 and 19860 [2008] NSWLEC 205 Southern Cross Constructions (NSW) Pty Limited (Applicant) PARTIES : The Owners of Strata Plan No. 20823 (First Respondent) The Owners of Strata Plan No. 19860 (Second Respondent) FILE NUMBER(S) : 30563 of 2008 CORAM: Jagot J KEY ISSUES: Practice and Procedure :- application for determination of a separate question - whether appropriate to separate question of construction where answer may depend on issues of fact and degree - application refused LEGISLATION CITED: Access to Neighbouring Land Act 2000 Uniform Civil Procedure Rules 2005 CASES CITED: Tepko Pty Limited v Water Board (2001) 206 CLR 1 DATES OF HEARING: 24 June 2008 EX TEMPORE JUDGMENT DATE : 24 June 2008 APPLICANT Mr J Johnson SOLICITORS Bourke Love McCartney Young FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr M Hall SOLICITORS Grace Lawyers Pty Ltd SECOND RESPONDENT Mr M Hall SOLICITORS Addisons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 24 June 2008 30563 of 2008 SOUTHERN CROSS CONSTRUCTIONS (NSW) PTY LIMITED Applicant THE OWNERS OF STRATA PLAN NO. 20823 First Respondent THE OWNERS OF STRATA PLAN NO. 19860 Second Respondent JUDGMENT Jagot J: 1 These proceedings have been transferred to the Land and Environment Court from the Local Court pursuant to the Access to Neighbouring Land Act 2000. Section 29 of that Act provides that a Local Court must order the transfer of proceedings for compensation under the Act if the amount is likely to exceed the Local Court's jurisdiction. In this case, the Local Court made a transfer order with the consequence that the Land and Environment Court now has, in respect of the transfer proceedings, the same jurisdiction and functions conferred on the Local Court by the Access to Neighbouring Land Act. 2 In the proceedings the applicant, who is developing certain land, seeks what is known as a neighbouring land access order and a utility service access order with respect to two adjoining parcels owned by the first and second respondents. In summary, the access sought relates to the installation of subsurface rock anchors, the swing of a crane jib, and a utility services arrangement. 3 For their part, the respondents have filed and served a notice of motion seeking separate determination of issues that the respondents identified as issues of law pursuant to part 28 of the Uniform Civil Procedure Rules 2005. For its part, the applicant opposes the separate determination of those questions and seeks expedition of the proceedings, also by way of notice of motion. 4 The issues the respondents seek to have separately determined, in essence, are two in number. 5 The first is whether - and I am paraphrasing the questions in the notice of motion filed by the respondents - the Access to Neighbouring Land Act permits a neighbouring land access order to be granted in respect of work, namely the installation of rock anchors, on land owned by the neighbour as opposed to land owned by the applicant. 6 The second question is whether the Act permits a neighbouring land access order with respect to the swinging of a crane jib above the neighbouring land or scaffolding erected on that land for a relatively lengthy period, namely, fifteen months. 7 The respondents are apparently two relatively small owners' corporations, one being commercial and one being residential. Accordingly, and understandably, defending these proceedings is a significant concern to them and involves a potentially substantial call on their resources. Both wish to limit the costs and expenses to which they might be exposed in defending the proceedings, which is quite proper and appropriate. 8 From the respondents' point of view, the questions identified for separate determination may involve a very significant costs saving. They are of the view that, if they are right about the scope of the Access to Neighbouring Land Act, the question of the rock anchors will be removed altogether. They will not then need to go to the expense of obtaining geotechnical engineering and other evidence to ensure their position in the proceedings is safeguarded. 9 They are also of the view that the question that they have identified, particularly with respect to the rock anchors, is highly appropriate for separate determination in the sense that there is only - to take the rock anchors as the example - one basic fact that needs to be taken into account, namely that there will be rock anchors somehow installed into the respondents' land and they will remain there permanently, even though at some point in the construction of the building on the adjoining land they will be de-stressed and perform no continuing engineering function. 10 According to the respondents, when one takes into account that very limited factual compass and combines it with the exceptionally great potential for savings in terms of the cost and length of the trial, there is a very strong case for separate determination. 11 The applicant disagrees with this position, noting the cautionary observations in the authorities, particularly in the decision of the High Court in Tepko Pty Limited v Water Board (2001) 206 CLR 1 at [170], where Kirby and Callinan JJ observed that single issue trials should only be embarked upon where their utility, economy and fairness to the parties are beyond question. The applicant says this is a high standard. In this case the difficulty with the respondents' position is that the scope of the Access to Neighbouring Land Act and in particular the concepts of access to be found in the Act (and here I refer in particular to ss 7 and 11 as well as s 12) are likely to involve questions of fact and degree. Accordingly, the issue that the respondents seek to separate cannot, or certainly should not, be determined on the basis of the simple fact asserted by the respondents; that is, there will be rock anchors in the respondents' land and they will remain there. 12 The parties have tendered a draft agreed statement of facts which has become exhibit 1 on the notices of motion. This sets out a far more detailed set of proposed facts that might be agreed between the parties. But at least insofar as those more detailed facts are concerned it is the respondents' avowed position that they would only agree to those detailed facts for the purpose of a separate determination and no other purpose. 13 The attraction to parties of attempting to separate out issues which appear to them to be either potentially determinative of an issue in the proceedings or to significantly reduce the level of costs to which they might be exposed, even if it only be first instance costs as opposed to the costs ultimately of the proceedings altogether, is easy to understand. However, the cases are replete with observations that such costs savings may ultimately turn out to be illusory. One thing is clear about separate questions, especially those that involve potentially issues of mixed fact and law. That is, all facts must either be found or must be agreed for all purposes in order to ensure that, whatever determination a court makes, it is not a hypothetical determination. 14 It seems to me that the applicant in this case has correctly identified the problem with the respondents' application for separate determination - the issue which the respondent seeks to isolate may ultimately be one that can only be answered by reference to detailed factual considerations of the precise nature of the activity that the applicant wishes to undertake on the respondents' land. The crane jib provides the best example. As the applicant said, what is the significance of the proposal for the swing of the crane jib being for fifteen months? Does the Act implicitly contain some temporal limitation so that a swing of a crane jib for eight months would be within the scope of a neighbouring land access order, but for more than that would not? Questions of fact and degree are involved. 15 By analogy, one can see the same types of considerations may affect the determination of the issue relating to the rock anchors. An example that occurred to me was the degree of intrusion into the respondents' land by the rock anchors. This is not to say that the degree of intrusion is necessarily a relevant factor; it is just to recognise that the question the respondents seek to isolate is not as pure as the respondents might currently imagine. This strongly suggests to me that the making of an order for separate determination of the issues will not necessarily have the substantial benefits that the respondents currently perceive. Indeed, to the contrary, making an order for separate determination, it seems to me, could very well send these proceedings down a path where all parties are exposed to the potential of a hypothetical determination (which the Court will not entertain) and, accordingly, increased costs and significant delay where everyone is agreed that the matter, one way or another, should be resolved as soon as possible. 16 In these circumstances, I am satisfied that the ordinary principle that all issues in this matter should be tried together must prevail. Accordingly, I dismiss the respondents' notices of motion filed on 20 June 2008. 17 There then is a question of the applicant's notice of motion for expedition. The respondents do not oppose expedition in principle, but are of the view that the particular orders sought by the applicant are inappropriate, they being the orders attached to the applicant's notice of motion. 18 My concern at the moment is that I do not understand enough about the evidence that has already been filed and which needs to be filed in order to work out whether any order for expedition is inappropriate at this stage. In one sense, all proceedings in this court are heard as soon as possible. The concern I have about making an order for expedition is that the parties may well not be ready to take a hearing date today. Expedition in this court should be reserved for those cases where parties are ready to do so. [Counsel addressed on orders about expedition] Directions: (1) Adjourn the applicant's notice of motion filed 16 June 2008 for mention before the List Judge on Friday 27 June 2008. (2) Reserve the costs of the respondents' motions filed 20 June 2008. **************************** 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.