Hunter v Wyong Shire Council [2012] NSWLEC 250

Land and Environment Court New South Wales

Medium Neutral Citation: Hunter v Wyong Shire Council [2012] NSWLEC 250 Hearing dates: 9 November 2012 Decision date: 09 November 2012 Jurisdiction: Class 1 Before: Pepper J Decision: Separate and preliminary question ordered and consequential orders made. Catchwords: SEPARATE QUESTION: whether separate and preliminary question should be ordered in Class 1 proceedings - question could determine entire proceedings and result in significant savings in costs and time - separate question ordered. Legislation Cited: Civil Procedure Act 2005 s 56 Uniform Civil Procedure Rules 2005 r 28.2 Cases Cited: Fobitu Pty Limited v Marrickville Council [2012] NSWLEC 81

Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 145 LGERA 276

Reysson v Roads and Traffic Authority [2011] NSWLEC 153

Wollongong City Council v Vic Vellar Nominees Pty Limited [2011] NSWLEC 138

Young v Parramatta City Council (2006) 144 LGERA 193 Category: Separate question Parties: William Thomas Hunter (Applicant) Wyong Shire Council (Respondent) Representation: Julia Green (solicitor) (Applicant) Brian Glendenning (solicitor) (Respondent) Corrs Chambers Westgarth (Applicant) Wyong Shire Council (Respondent) File Number(s): 10957 of 2012

EX TEMPORE Judgment

The Respondent Submits the Proposed Development is Not Permissible as a Threshold Issue 1By notice of motion filed 8 November 2012, the applicant, Mr William Hunter, seeks an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") that there be a separate hearing in respect of the permissibility of the proposed development. 2The respondent, Wyong Shire Council ("the council"), consents to the making of such an order. Such consent is, of course, not determinative. 3The separate question has been framed by the parties as follows: Whether the proposed development is prohibited under the Wyong Local Environmental Plan 1991. 4Both Mr Hunter and the council relied on affidavits in support of the application that were to similar effect. Mr Hunter relied on an affidavit of Ms Julia Green, solicitor for Mr Hunter, affirmed 8 November 2012. The council relied on an affidavit of Mr Brian Glendenning, the council's solicitor, sworn 8 November 2012 and on an affidavit sworn by Mr Glendenning on 5 November 2012. 5For the reasons that appear below, the Court proposes to make the order sought.