Boensch v Parramatta City Council [2013] NSWLEC 94

Land and Environment Court New South Wales

Medium Neutral Citation: Boensch v Parramatta City Council [2013] NSWLEC 94 Hearing dates: 26 June 2013 Decision date: 26 June 2013 Jurisdiction: Class 1 Before: Biscoe J Decision: Order that the following question arising from Contention 1 of the Respondent's Amended Statements of Facts and Contentions be determined as a preliminary point: Whether development consent DA 333/1996 granted by Parramatta City Council pursuant to Notice of Determination dated 8 May 1998 in respect of the property at 255 Victoria Road Rydalmere has lapsed. Directions for the hearing of the preliminary question. Catchwords: SEPARATE QUESTION - whether there should be a preliminary question determined as to whether a development consent has lapsed. Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Reysson v Roads and Traffic Authority [2011] NSWLEC 153 Category: Separate question Parties: Franz Boensch (Applicant) Parramatta City Council (Respondent) Representation: COUNSEL: A Hemmings (Applicant) C Drury (Respondent) SOLICITORS: S Hill and Associates (Applicant) Sparke Helmore (Respondent) File Number(s): 10557/12 and10558/12

EX TEMPORE Judgment 1This is a notice of motion by the applicant for the following consent order for the determination of a preliminary question: That the following question arising from Contention 1 of the Respondent's Amended Statement of Facts and Contentions be determined as a preliminary point: Whether development consent DA 333/1996 granted by Parramatta City Council pursuant to Notice of Determination dated 8 May 1998 in respect of the property at 255 Victoria Road Rydalmere has lapsed 2The notice of motion is in two Class 1 appeals before the Court relating to the change of use of part of an approved building on land at 255 Victoria Road, Rydalmere. The Court has directed that the appeals be heard together. 3Contention 1 of the Council's Amended Statement of Facts and Contentions contends that the development consent relied upon by the applicant to support those two development applications has lapsed. That development consent is DA 333/1996 granted by Council pursuant to notice of determination dated 8 May 1998, which approves the carrying out of the following development on the land: "Erect a building of four levels to be used for motor vehicle storage and repairs and two residential units". 4The approved building has been commenced but not completed. 5Pursuant to the development applications the subject of the appeals, the applicant seeks approval for a change of use of levels within the approved building as follows: (a)DA/376/2011 - use of level 2 as a food court (b)DA/377/2011 - use of level 3 as a boarding house including mezzanine level 6Council refused consent to the development applications leading to the appeals to this Court. 7Contention 1 in Council's Amended Statement of Facts and Contentions is as follows: The Development consent relied upon to support the application has lapsed due to any works subject of the consent being commenced unlawfully. The following conditions of Development Consent were required to be satisfied prior to commencement of works or the issue of a Building Application but were [not]: + Condition 17 - The existing lots were required to be consolidated into one (1) lot prior to the release of the building plans. The site remains two separate lots (Lots 37 and 38 DP 14244) + Condition 22 - A compliance certificate under Section 73 of the Water Board (Corporation) Act 1994 was required prior to the release of the linen plan or building approval (whichever was applicable). There is no evidence of the issue of such a certificate. In addition, the following conditions of the Construction Certificate and were required to be satisfied prior to the commencement of works: + Condition 9 requiring a registered surveyors certificate report detailing building position and reduced levels in accordance with the DA consent. + Condition 27 requiring plans detailing proposed creek improvements + Condition 28 requiring details of proposed external finishes + Condition 29 requiring a plan of beautification of the site treatment including fencing, screening, plans and planting, hard surfacing, garbage receptacles, drying areas and recreation areas. 8Legal principles governing whether or not a matter is appropriate for determination of a separate question were reviewed in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8 at [10] by me as follows (omitting citations): (a) Generally speaking, all issues should be tried and decided at the same time. (b) It is for the party seeking the order to show to the Court that separate decision of a question is appropriate. (c) Separate decision of a question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. This gives effect to s 56 of the Civil Procedure Act. Thus, the procedure needs to be fair and involve real savings in time and cost. (d) Separate decision of a question may be appropriate where it is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. (e) In particular circumstances separate decision of a question may be appropriate even if it will not bring the proceedings to an end. This may occur where the decision will substantially narrow the field of controversy by obviating unnecessary and expensive hearing of other questions or where the decision carries with it a strong prospect that the parties will then be able to agree upon resolution of the proceedings. But on such occasions care must be exercised lest fragmentation of the proceedings (particularly where the exercise of appeal rights is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. (f) Separate decision of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to remaining issues in the proceedings (and thus require the remaining issues to be dealt with by another judge). (g) Where the question sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and all the facts upon which that question has to be considered should be agreed or clearly ascertainable. (h) Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely. 9In Reysson v Roads and Traffic Authority [2011] NSWLEC 153 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 for reasons including the following, at [14]: Although, 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. 10Recently, in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Ward JA held at [95]: If the separate question is or may be dispositive of a relevant issue in the proceedings (or even dispositive of a discrete step in the process of determining a relevant issue in the proceedings), then if there is a reasonable prospect of a significant saving of costs by its determination in advance, this would (among others) be an appropriate factor to take into account when determining whether to exercise the discretion to order a preliminary hearing on the separate question. 11If the consent has lapsed then there is no approved building to which the development applications can relate and the parties agree that the appeals to this Court must be dismissed. In addition, there are merits issues in relation to traffic and parking, town planning, flooding, contamination and waste management. The parties agree that if it is necessary to proceed with the whole of the appeals, this will involve a hearing of about four to five days and that the costs of a full hearing with three to four expert witnesses for each party will be substantial. In contrast, the parties agree that the preliminary issue can be disposed of within a day, thus avoiding substantial time and costs if the consent is held to have lapsed, including by avoiding the necessity to have a site visit. 12In my opinion, this is an appropriate case to order determination of a separate question. If the consent is held to have lapsed then the appeals must be dismissed with a substantial saving in time and costs. If the consent is held not to have lapsed, there will still have been some utility in the preliminary question in that the lapsing issue will have been resolved. 13There should be an agreed bundle of documents and an agreed statement of facts, and the parties agree they should meet promptly in an attempt to narrow the issues in dispute. 14Accordingly, I make the following orders by consent: (1)Order that the following question arising from Contention 1 of the respondent's Amended Statements of Facts and Contentions be determined as a preliminary point: Whether development consent DA 333/1996 granted by Parramatta City Council pursuant to Notice of Determination dated 8 May 1998 in respect of the property at 255 Victoria Road Rydalmere has lapsed. (2)The applicant is to write to the respondent by 5pm on 26 June 2013 setting out the documents it asserts have not been produced. (3)Council is to produce its files in relation to DA333/96 and Construction Certificate NT/00222/02 and property file from 1996 to date in hard copy and on disk by 1pm on Friday 28 June 2013. (4)The parties are to meet and confer in an attempt to narrow the issues in dispute on the preliminary question by Friday 5 July 2013. (5)The parties are to file an agreed bundle of documents and an agreed statement of facts with respect to the preliminary question by 12 July 2013. (6)The applicant is to file any affidavits with respect to the preliminary question by 26 July 2013. (7)The respondent to file any affidavits with respect to the preliminary question by 9 August 2013. (8)The applicant to file any affidavits in reply with respect to the preliminary question by 16 August 2013. (9)The parties to file written submissions 3 days before the hearing of the preliminary question. (10)The proceedings are listed for hearing of the preliminary question on 26 August 2013 before a judge or legally qualified commissioner. 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: 03 July 2013