Land and Environment Court New South Wales Medium Neutral Citation: Allandale Blue Metal Pty Ltd and Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services [2011] NSWLEC 242 Decision date: 28 November 2011 Jurisdiction: Class 3 Before: Biscoe J Decision: Separate question ordered. Catchwords: SEPARATE QUESTION:-whether separate question should be ordered in Class 3 resumption compensation proceeding as to whether a development consent only permits quarrying within a certain area and alternatively whether the development consent is void for uncertainty. Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 s 34 Cases Cited: Ray Fitzpatrick Pty Ltd v Minister for Planning (No 4) [2008] NSWLEC 161 Reysson v Roads and Traffic Authority [2011] NSWLEC 153 Category: Separate question Parties: Allandale Blue Metal Pty Ltd; Quarry Products (Newcastle) Pty Ltd (Applicants) Roads and Maritime Services (formerly the Roads and Traffic Authority of New South Wales) (Respondent) Representation: COUNSEL: Mr M Seymour (Applicant) Mr M Astill, solicitor (Respondent) SOLICITORS: Sparke Helmore (Applicant) Blake Dawson (Respondent) File Number(s): 30851 of 2010 30853 of 2010 EX TEMPORE Judgment 1These are two proceedings under the Land Acquisition (Just Terms Compensation) Act 1991 for compensation for the compulsory acquisition by the respondent, Roads and Maritime Services, of land owned by the applicant, Allandale Blue Metal Pty Ltd, which was leased to the applicant, Quarry Products (Newcastle) Pty Ltd, for the purpose of a quarry. I am informed that the latter applicant is proposing to discontinue its proceedings. 2I am now dealing with an amended notice of motion by the respondent that there be separately determined prior to the hearing of the proceedings the question of whether the development consent granted by Cessnock City Council on 8 May 1979 for the Allandale quarry: (a)only permits quarrying within the area of the circle labelled "proposed quarrying area" on the Indicative Plan for Quarry Products Pty Ltd development application dated 26 March 1979; or in the alternative, (b)is void for uncertainty. 3The background is set out in an affidavit of Nga Guk Li filed on 25 October 2011 which, for the purposes of this interlocutory motion only, is uncontentious. 4In relation to paragraph (a) of the proposed preliminary questions, the respondent contends that the development consent limits the permissible quarrying area. This is said to be the case because development consent incorporates, by reference to the development application which in turn incorporates by reference a certain letter which limits permissible quarrying to an area within a circle on a plan. The respondent's alternative and short contention in relation to paragraph (b) is that if the development consent has to be construed in isolation from the development application and the letter to which I have referred, then it is void for uncertainty. 5The respondent argues that if it is correct in its construction and the existing development consent is limited to the area of the circle, then the applicant would need a new development consent to quarry outside that area and within the acquired land; and in that event the respondent would need to call expert evidence relating to ecology, rivers and (consequently) surveying, all aimed at establishing that such a development consent would not, or would be unlikely to be granted. If, however, the respondent is correct in its construction, the cost of that expert evidence would be avoided and there would be a substantial saving in costs and time at the hearing. 6The objection of applicant, Allandale, to the preliminary questions should be considered against the background that (a) these proceedings were commenced in October 2010 and that they have already continued for a period of time which is greater than usually finds favour with the Court; and (b) the respondent's contentions raised by the preliminary questions were only brought to the applicants' notice in September this year. I note, however, that there has been some subsequent delay since then due to the fact that the parties attended a conciliation conference under s 34 of the Land and Environment Court Act 1979, which achieved nothing. 7Against that background, the applicant makes three submissions in opposition to the proposed preliminary questions. 8First, the applicant submits that the proposed preliminary questions lack utility. The applicant's point is that even if they were to be answered in the affirmative , that would not be dispositive for the purpose of these proceedings because there would still be argument that the hypothetical parties to a sale at the resumption date, under the statutory market value test, would not regard the development consent as limited to the circle nor, alternatively, would they regard it as void for uncertainty. There is force in the applicant's submission. Nevertheless, it seems that the proposed preliminary questions would otherwise be ventilated at the final hearing as steps in the inquiry into market value but only after substantial costs had been expended which the respondent does not propose to expend if they are answered in the negative before the final hearing date is fixed. 9Secondly, the respondent submits that the separate questions are not pure questions of law. That is so; however, the scope of the evidentiary material which has to be looked at is narrow. As I understand it, the evidence comprises three documents: the development consent, the development application referred to in the development consent, and a letter referred to in the development application. No other evidentiary material has been identified to me and, if it exists, I expect it would be very limited . 10Thirdly, the applicant submits that there is no jurisdiction to determine in Class 3 proceedings of this type whether the development consent is void for uncertainty. In support of that proposition, the applicant cites Ray Fitzpatrick Pty Ltd v Minister for Planning (No 4) [2008] NSWLEC 161 (Sheahan J). That decision was concerned with a different question, namely, the jurisdiction of the Court in Class 3 resumption compensation proceedings to determine the validity of a statutory offer of compensation given that such proceedings are based upon an objection to that offer. At best, it provides an analogy. Any view expressed by the Court in these proceedings on the void for uncertainty point seems arguably relevant in the context of determining market value, albeit only as a step in determining how the hypothetical parties to a sale of the subject land at the resumption date would view the matter as affecting market value. Any view expressed by the Court on the void for uncertainty point in these proceedings cannot be equivalent to a declaration of in validity in Class 4 proceedings in which the consent authority that granted the consent would be a necessary party. Howe v er , on reflection, such Class 4 proceedings as a mechanism for determining invalidity only for the ultimate purpose of these proceedings seem inappropriate. 11A relevant principle for determining whether a separate question should be ordered was recently considered in Reysson v Roads and Traffic Authority [2011] NSWLEC 153 at [10] by Craig J who said: "The 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'". 12In Reysson Craig J made an order for the determination of a preliminary question as to whether a development consent had lapsed. His Honour considered that this question was severable and collateral to the principal issues in the proceedings. The reason was that the determination of the question would have a significant bearing upon the admissibility, or utility of considering a significant portion of the expert evidence sought to be led on behalf of the respondent. If the question were answered in the negative before the proceedings were listed for hearing, there would be a dual advantage of costs savings in the preparation of expert reports, and it would enable the Court to better and more realistically determine the hearing time needed to be allocated to the final hearing. His Honour concluded that the determination of the question would have the prospect of substantially narrowing the field of controversy between the parties with a consequence that there would likely be a significant saving of costs: at [14] - [16]. In my view, a similar analysis is applicable to the present case. 13Accordingly, I make the following orders: 1.Order that there be separately determined, prior to the hearing of the proceedings, the following question - Whether development consent No 118/679/23 granted by Cessnock City Council on 8 May 1979 for the Allandale Quarry (a) only permits quarrying within the area of the circle labelled "proposed quarrying area" on the Indicative Plan for Quarry Products Pty Ltd development application dated 26 March 1979 or in the alternative (b) is void for uncertainty. 2.Direct the parties to approach the Registrar forthwith to obtain a hearing date of the preliminary question for one day as soon as practicable. 3.Costs of the respondent's notice of motion are to be costs in the determinati on of the preliminary question. 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: 15 December 2011