Land and Environment Court New South Wales Medium Neutral Citation: Reysson v Roads and Traffic Authority [2011] NSWLEC 153 Hearing dates: 2 September 2011 Decision date: 02 September 2011 Jurisdiction: Class 3 Before: Craig J Decision: 1. I order that there be separately determined prior to the hearing of the proceedings the following question - "Whether development consent DA 92/118 granted by Tweed Shire Council on 21 January 1993 had, by 21 January 1998, lapsed within the meaning of the Environmental Planning and Assessment Act 1979 as the lapsing provisions of that Act then operated." 2. Make orders in accordance with the Short Minutes of Order initialled by HH and placed with the papers. 3. Give liberty to the parties to approach the Registrar forthwith to obtain a hearing of the preliminary question for 2 days commencing on 29 September 2011. 4. Exhibits may be returned. 5 Cost of the motion to be costs in the determination of the preliminary point. Catchwords: PROCEDURE - interlocutory application for separate question to be heard - whether determination of separate question would reduce costs and hearing time - question severable from principal issues - whether development consent granted in respect of acquired land had lapsed - significant fact in determining market value - application granted Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land Acquisition (Just Terms Compensation) Act 1991 Uniform Civil Procedure Rules, r. 28.2 Cases Cited: Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138 Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 Category: Interlocutory applications Parties: Reysson Pty Ltd (Applicant) Roads and Traffic Authority of New South Wales (Respondent) Representation: Mr T F Robertson SC with Mr P Larkin (Applicant) Mr N M Eastman (Respondent) Storey & Gough Lawyers (Applicant) Corrs Chambers Westgarth (Respondent) File Number(s): 30921 of 2010 EX TEMPORE Judgment 1Land owned by Reysson Pty Ltd ( Reysson ) at Banora Point on the Far North Coast of New South Wales was compulsorily acquired by the respondent on 20 April 2010. In proceedings commenced on 15 November 2010 pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 ( the Just Terms Act ), Reysson seeks determination of compensation payable to it in accordance with the provisions of Div 4 of Pt 3 of that Act by reason of that acquisition. The proceedings have not yet been listed for hearing. 2In compliance with directions made by the Court, Reysson has filed expert planning and valuation evidence. For its part, the respondent has filed evidence from experts engaged in a far wider range of disciplines. They include experts not only in the disciplines of planning and valuation but also in ecology, hydrology, engineering, soil science, bush fire management and traffic engineering. 3Reysson now applies by motion pursuant to Pt 28, r 28.2 of the Uniform Civil Procedure Rules ( UCPR ) for determination of a separate question. That question is posed as follows: "Whether development consent DA92/118 granted by Tweed Council on 21 January 1993 has lapsed." The circumstances in which this question is now posed for determination need to be stated. 4On 21 January 1993, Tweed Shire Council ( the Council ) granted development consent for a 34 lot residential subdivision on a substantial part of the acquired land. The consent contemplated that the development would be undertaken in stages. The expert planning and valuation prepared on behalf of Reysson for the purpose of the hearing assumed that this development consent was an operative consent at the date upon which that land was acquired by the respondent. Amended points of claim filed by Reysson on 10 May 2011 pleaded that the consent was operative and that its claim for compensation was founded upon that premise. Correspondence passing between the Council and Reysson's consultants in 1997 and 1998 would appear to provide some foundation for that premise. 5By its points of defence filed on 6 July 2011, the respondent does not appear to challenge the fact that the 1993 development consent for subdivision was granted in respect of the land. However, it alleges that the consent lapsed on 21 January 1998 and thus denies that Reysson is entitled to rely upon the consent for the purpose of determining the compensation payable. 6Its contention that the consent had lapsed is founded upon an allegation that such work as had been carried out on the land prior to 21 January 1998 did not amount to a commencement of the consent within the meaning of the relevant provision of the Environmental Planning and Assessment Act 1979. The respondent contends that such work did not accord with the requirements of conditions 8 and 9 of the development consent. 7Receipt of the points of defence is said to be the first intimation received by Reysson of the respondent's intention to argue that the 1993 consent was not operative at the date of acquisition. As I have said, Reysson's evidence had been prepared on the premise that the consent was so operative. 8Whether the 1993 development consent was an operative consent at the date of acquisition is important to be determined. So much is agreed between the parties. It is an important question to be determined when considering the highest and best use of the land for the purpose of determining its "market value" in accordance with s 56 of the Just Terms Act. 9A further matter to be noticed by way of background is that the difference between the parties as to the amount of compensation payable is significant. The amount claimed by the applicant in accordance with its amended points of claim is the sum of $15,845,305.17 of which the sum of $14,737,000.00 is attributed to the market value of the land. For its part, the respondent has not yet identified the final figure for which it will contend, although by its points of defence says that the amount to which Reysson is entitled is no more than "that specified in the determination of compensation" by the Valuer-General in accordance with s 47 of the Just Terms Act. The "market value" of the land so determined was the sum of $4,117,303.00. 10The principles applicable to determining whether a separate question should be ordered pursuant to UCPR 28.2 have recently been considered by me in Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138. I do not repeat the summary of principles there set out but refer in particular to those that I have extracted from the judgment of Jagot J in Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 at [6]. One of the principles articulated by her Honour and relevant to the present motion is that the separate question posed for consideration should be one that has the capacity to narrow substantially the field of controversy. As the position was expressed by Young CJ in Eq in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [113], a separate question should only be posed "when there is a critical matter which if dealt with in a preliminary hearing will far more likely than not be convenient and save significant expense". 11The voluminous expert evidence prepared on behalf of the respondent has been prepared on the assumption that the 1993 consent was not operative at the date of acquisition. Some of that evidence is founded exclusively upon that assumption. Other experts have addressed alternatives but in their lengthy reports found some part of their consideration upon the assumption that the consent had lapsed. 12Mr N Eastman of counsel, who appeared for the respondent, opposed Reysson's motion. He sought to demonstrate, by reference to several reports, that evidence to be led from the respondent's experts would be little shortened by a determination of the separate question in the negative. He maintained that the question was not "ripe" for determination. The answer to it, in the negative would, he submitted, do little to shorten the hearing of issues raised because there was substantial overlap between the evidence directed to the lapsing of the 1993 consent and evidence directed to its operation. The manner in which the consent would operate to control subdivision of the land would affect its market value as at the date of acquisition in any event. 13Notwithstanding the force of these submissions, Mr Eastman acknowledged that the evidence necessary to determine the question as to whether the 1993 consent had lapsed was uncontroversial. I was provided with a folder of documents that appeared to be directed to the issue, together with an affidavit of Philip Wyper who was a surveyor involved in activities upon the subject land at the relevant time. His evidence was acknowledged to be uncontentious. 14Although, of necessity, I was afforded only an overview of the evidence sought to be led in the case, it does seem to me that there is merit in directing determination of the preliminary question posed on behalf of Reysson. The facts necessary to be considered for that purpose are, as I have indicated, anticipated to be uncontroversial. Moreover, as Mr Robertson SC, appearing on behalf of Reysson submitted, the issue as to whether the 1993 consent has lapsed is severable and collateral to the principal issues in the proceedings. He submits, correctly in my respectful opinion, that even if a separate question is not now ordered, there would be strength in an argument that the question be determined first upon the final hearing of the proceedings. This is because the determination of that question would have a significant bearing upon the admissibility or utility in considering a significant portion of the expert evidence sought to be led on behalf of the respondent. If the question is determined in the negative before the proceedings are listed for hearing there is the dual advantage of costs saving to the applicant in engaging experts to prepare reports, preparing reports addressing issues that may ultimately be found to be irrelevant, and it enables the Court better and more realistically to determine the hearing time needed to be allocated to the final hearing of the proceedings. 15On the basis of the present pleadings and expert evidence already filed, the respondent has given an estimate of 4 weeks as the time likely to be needed to be set aside for hearing. For its part, Reysson estimated a period of 2 weeks but Mr Robertson submitted that if the separate question is answered in the negative then the likely hearing time, on his estimate, is likely to be reduced to 1 week. 16For these reasons I have concluded that the determination of the question posed has the prospect of substantially narrowing the field of controversy between the parties, with a consequence that there is likely to be a significant saving of costs. Such an approach not only accords with the principles earlier articulated but also with the overriding purpose expressed in s 56 of the Civil Procedure Act 2005. 17Accordingly I make the following orders and give the following directions: 1. I order that there be separately determined, prior to the hearing of the proceedings, the following question - "Whether development consent DA 92/118 granted by Tweed Shire Council on 21 January 1993 had, by 21 January 1998, lapsed within the meaning of the Environmental Planning and Assessment Act 1979 as the lapsing provisions of that Act then operated." 2. Make orders in accordance with the Short Minutes of Order initialled by me and placed with the papers. 3. Give liberty to the parties to approach the Registrar forthwith to obtain a hearing of the preliminary question for 2 days commencing on 29 September 2011. 4. Exhibits may be returned. 5 Cost of the motion to be costs in the determination of the preliminary point. ********** I certify this and the preceding pages are a true copy of the reasons for the judgment of the Honourable Justice Malcolm Craig ......................... Associate Date: 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. Decision last updated: 09 September 2011