Tuscany Farm Holdings v Hawkesbury City Council [2011] NSWLEC 18

Land and Environment Court New South Wales

Medium Neutral Citation: Tuscany Farm Holdings v Hawkesbury City Council [2011] NSWLEC 18 Hearing dates: 16 February 2011 Decision date: 16 February 2011 Before: Pain J Decision: Orders as sought in Respondent's Notice of Motion filed 27 January 2011 Catchwords: Procedure - whether leave should be granted for preliminary issue to be determined in Class 1 proceedings Legislation Cited: Hawkesbury Local Environmental Plan 1989 Supreme Court Rules 1970 Pt 31 r 2 Uniform Civil Procedure Rules 2005 r 28.2 Cases Cited: Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 Olsson v Goulburn Mulwaree Council and Ors [2010] NSWLEC 47 Southern Cross Constructions (NSW) Pty Ltd v Owners of Strata Plan No 20823 [2008] NSWLEC 205 Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1 Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 Category: Separate question Parties: Tuscany Farm Holdings (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: Mr D Wilson Ms J McCullan (solicitor) Solicitors: A R Walmsley & Co (Applicant) Marsdens Law Group (Respondent) File Number(s): 10986 of 2010

EX TEMPORE Judgment 1The Respondent, Hawkesbury City Council, has filed a Notice of Motion on 27 January 2011 seeking an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (the UCPR) for the preliminary determination of the following issue: The proposed development is properly characterised as development for the purpose of an "industry" and is therefore prohibited within the Mixed Agricultural Zone under the provisions of Hawkesbury Local Environment Plan 1989. 2The issue raised is essentially an issue concerning permissibility of development under the relevant local environmental plan. 3Rule 28.2 provides: 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. 4The supporting affidavit of Ms Jodie Anne McCullan, the Respondent's solicitor, sworn 25 January 2011 stated that these proceedings relate to an appeal against the Respondent's refusal of a development application seeking consent for the use of existing sheds on land at Ebenezer for the manufacture and distribution of dog biscuits. The Respondent contends that the proposed development is characterised as development for the purpose of an "industry" and is prohibited within the Mixed Agricultural Zone under the Hawkesbury Local Environmental Plan 1989 (the LEP) which applies to the subject land. The Respondent seeks leave to have the issue identified in its Statement of Facts and Contentions, filed on 25 January 2011, heard separately. The issue is genuinely capable of separate determination. If determined in the Respondent's favour, it would be determinative of the appeal and render unnecessary any hearing of the merits of the development. A separate determination would achieve the just, quick and less costly resolution of the proceedings. 5The Applicant supports the determination of the preliminary question. To the extent the question is one of mixed fact and law the parties can agree a statement of facts for the purpose of argument on the question of law raised and agree that resolution of the question would be determinative of the proceedings if resolved in the Respondent's favour. Argument is estimated to take a half to one day of hearing time. 6The merit issues identified in the Statement of Facts and Contentions are odour and noise impacts. These are separate from the preliminary issue the subject of the motion. 7The relevant principles were identified by Jagot J in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 at [12], her Honour also applied these in Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 when considering applications for separate determination of questions of law, then under Pt 31 r 2 of the Supreme Court Rules 1970. In Young her Honour referred at [7] - [10] to further decisions in the Federal Court and the High Court in Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1 about the need for caution in adopting such an approach. These principles were applied by Craig J in Olsson v Goulburn Mulwaree Council and Ors [2010] NSWLEC 47 at [11] - [13] when considering an application under r 28.2 of the UCPR for the separate determination of a question of law in Class 1 and Class 4 proceedings. I will not set out the principles in the parts of the judgments referred in the interests of brevity in this interlocutory motion on a matter of procedure but apply them in my consideration of this matter.