Meriton Property Services Pty Limited v Council of the City of Sydney [2012] NSWLEC 169

Land and Environment Court New South Wales

Medium Neutral Citation: Meriton Property Services Pty Limited v Council of the City of Sydney [2012] NSWLEC 169 Hearing dates: 25 July 2012 Decision date: 25 July 2012 Jurisdiction: Class 1 Before: Biscoe J Decision: (1) Vacate the hearing of proceedings 10529/12 on 16 August 2012; (2) Vacate all directions in proceedings 10529/12 made on 29 June 2012; (3) Proceedings 10529/12 are to be heard with those in 10724/12 and the evidence in one will be the evidence in the other; (4) Directions in accordance with the document headed "Directions" dated today. Catchwords: PRACTICE AND PROCEDURE - whether two Class 1 proceedings should be heard together and hearing date of one vacated. Legislation Cited: Environmental Planning and Assessment Act 1979 s 94 Category: Procedural and other rulings Parties: Meriton Property Services Pty Limited (Applicant) Council of the City of Sydney (Respondent) Representation: COUNSEL: Mr M Staunton (Applicant) Mr A Hawkes, solicitor (Respondent) SOLICITORS: Meriton Group (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10529/12, 10724/12

EX TEMPORE Judgment 1In Class 1 appeal 10529/12 by Meriton Property Services Pty Limited against the refusal of the respondent, Council of the City of Sydney, to modify a development consent for a serviced apartments development at Waterloo, Meriton, by a notice of motion filed today, moves for orders vacating the hearing on 16 August 2012 and all directions made on 29 June 2012, an order that the proceedings be heard with proceedings 10724/12, and that evidence in one be evidence in the other. 2Proceedings 10724/12 are also a Class 1 appeal by Meriton. That appeal is against refusal by the Council of Meriton's application to modify conditions of a development consent relating to apartment buildings at Zetland. Although the original development consent there was for residential apartments, there were subsequent modifications approved by the Council which changed the use of most of the apartments. 3The Council consents to the orders that are sought. The essential reason is that there is an overlap of one issue in both proceedings which I am told has important financial consequences. 4In proceedings 10724/12 I am told that there are three underlying issues. First, in the context of affordable housing contributions in the applicable local environmental plan, there is an issue of construction of the words "residential purposes". Under that instrument, there is payable an affordable housing contribution of one per cent for so much of the total floor area as is not intended to be used exclusively for "residential purposes", whereas a contribution of three per cent is payable for so much of the total floor area as is intended to be used exclusively for "residential purposes". Meriton wishes to argue that serviced apartments are not for residential purposes and therefore the lower contribution is payable. Secondly, there is an issue concerning contributions under s 94 of the Environmental Planning and Assessment Act 1979 TA \l "s 94 of the Environmental Planning and Assessment Act 1979" \s "s 94 of the Environmental Planning and Assessment Act 1979" \c 2 . Thirdly, there is an issue concerning bicycle ramps in the basement. 5In proceedings 10529/12 the first issue also arises. That issue also affects other residential developments. A great deal of money turns on the resolution of that issue. 6In proceedings 10724/12 the parties are agreed that there is a need for expert evidence which cannot reasonably be obtained by 16 August 2012, which is the date that has been fixed for the hearing in proceedings 10529/12. 7Given the overlap in the two proceedings, I am persuaded that it is appropriate to make the orders sought and to give directions to progress the proceedings to hearing. 8By consent, the orders of the Court are as follows: (1)Vacate the hearing of proceedings 10529/12 on 16 August 2012. (2)Vacate all directions in proceedings 10529/12 made on 29 June 2012. (3)Proceedings 10529/12 are to be heard with those in 10724/12 and the evidence in one will be the evidence in the other. (4)Directions in accordance with the document headed "Directions" dated today. 9I note that the directions include provision for a three day hearing on 9, 10 and 11 October 2012. I also note that the parties suggest that the nature of the legal issues and their importance are such that it would be desirable for a Commissioner with legal qualifications or a Judge to hear the two proceedings. 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: 27 July 2012