Kenoss Pty Ltd v Palerang Council [2012] NSWLEC 179

Land and Environment Court New South Wales

Medium Neutral Citation: Kenoss Pty Ltd v Palerang Council [2012] NSWLEC 179 Hearing dates: 27, 30 July 2012 Decision date: 30 July 2012 Jurisdiction: Class 1 Before: Biscoe J Decision: Separate and preliminary question ordered: On the proper construction of cl 21(b) of the Yarrowlumla Local Environmental Plan 2002, in considering the condition precedent therein to the grant of consent for subdivision of land in Zone No 2(v) where the subdivision takes in floodplain land: (a) is the only question whether the consent authority is satisfied that the subdivision takes in floodplain land? or (b) is there a further question whether the consent authority is satisfied that that floodplain land is an unsuitable area? Catchwords: PRACTICE AND PROCEDURE - whether separate and preliminary question should be ordered. Legislation Cited: Environmental Planning and Assessment Act 1979 s 97(1) Uniform Civil Procedure Rules 2005 r 28.2 Yarrowlumla Local Environmental Plan 2002 cl 21(b) Category: Separate question Parties: Kenoss Pty Ltd (Applicant) Palerang Council (Respondent) Representation: COUNSEL: Ms C Renner, solicitor (Applicant) Mr R Walton (Respondent) SOLICITORS: Gadens Lawyers (Applicant) Williams Love & Nicol (Respondent) File Number(s): 10586/12

ex tempore Judgment 1In this Class 1 appeal against the respondent Council's refusal of development consent for a subdivision, the applicant moves pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 for the determination of a separate and preliminary question concerning the construction of cl 21(b) of the Yarrowlumla Local Environmental Plan 2002, which provides: 21 What must be considered before consent is granted to subdivision in the Village Zone? Consent must not be granted to a subdivision of land within Zone No 2 (v) unless the consent authority is satisfied: ... (b) that the subdivision does not take in unsuitable areas such as floodplain land 2After discussion with the parties, the proposed separate question may be formulated as follows: On the proper construction of cl 21(b) of the Yarrowlumla Local Environmental Plan 2002, in considering the condition precedent therein to the grant of consent for subdivision of land in Zone No 2(v) where the subdivision takes in floodplain land: (a) is the only question whether the consent authority is satisfied that the subdivision takes in floodplain land? or (b) is there a further question whether the consent authority is satisfied that that floodplain land is an unsuitable area? 3The background is as follows. The appeal was filed on 20 June 2012, the last day on which it could be filed under the time limit in s 97(1) of the Environmental Planning and Assessment Act 1979. The applicant now considers that in order to address the merits it would be necessary to prepare an amended appeal Application, a revised Statement of Environmental Effects, revised plans, a new flood study and other studies at a total cost in excess of $200,000. The Council has made it clear that, in its view, the condition precedent to cl 21(b) of the Yarrowlumla Local Environmental Plan is not satisfied because the Council is satisfied that the subdivision takes in floodplain land. 4It is common ground that the subdivision takes in floodplain land and that the Council is satisfied that it takes in floodplain land. The Council contends that that state of satisfaction is the only question that arises under the condition precedent in cl 21(b) where a proposed subdivision takes in floodplain land. The applicant contends that, in considering the condition precedent in cl 21(b), there is a further question whether the consent authority is satisfied that the floodplain land is an unsuitable area. It is on this short point of construction that the separate question turns. 5In my view, that question should be determined as a separate and preliminary question because if it is decided against the applicant, that will dispose of the appeal and very substantial costs will be avoided that would otherwise be incurred. 6Accordingly, I order that the question set out above at [2] be determined as a separate question before any other question in the proceedings. 7The matter is fixed for hearing on 4 September 2012. I make the following directions: (1)The parties are to file an agreed statement of facts and bundle of documents duly paginated and indexed by 13 August 2012. (2)The applicant's submissions are to be filed and served by 22 August 2012. (3)The respondent's submissions are to be filed and served by 29 August 2012. 8I note the parties' suggestion that the preliminary question would be appropriately determined by a judge or a commissioner with legal qualifications. 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: 30 July 2012