Land and Environment Court New South Wales Medium Neutral Citation: Jenkins v Clarence Valley Council [2013] NSWLEC 161 Hearing dates: 20 September 2013 Decision date: 20 September 2013 Jurisdiction: Class 1 Before: Pepper J Decision: Application dismissed. Catchwords: PROCEDURE: whether separate and preliminary question should be ordered in Class 1 proceedings - question involves mixed matters of fact and law so as to minimise any beneficial savings in costs or time - application for separate question dismissed. Legislation Cited: Civil Procedure Act 2005, s 56 Environmental Planning and Assessment Act 1979, s 97 Uniform Civil Procedure Rules 2005, r 28.2 Clarence Valley Local Environmental Plan 2011 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; (2013) 195 LGERA 182 Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 Hunter v Wyong Shire Council [2012] NSWLEC 250 Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; 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] NSWLEC 116; (2006) 144 LGERA 193 Category: Interlocutory applications Parties: Peter Jenkins (Applicant) Clarence Valley Council (Respondent) Representation: L M Saw (Applicant) F J Berglund (Respondent) N/A (Applicant) Thompsons Legal (Respondent) File Number(s): 10631 of 2013 EX TEMPORE Judgment Mr Jenkins Seeks the Determination of a Separate Question 1By notice of motion dated 16 September 2013, the applicant to Class 1 proceedings, Mr Peter Jenkins, seeks an order for a separate question on the issue of whether a development is a "dwelling house" pursuant to the Clarence Valley Local Environmental Plan 2011 ("the CLEP"). 2A supporting affidavit of Mr Ross Creighton, agent for Mr Jenkins, affirmed 13 September 2013, was of no assistance whatsoever to the resolution of the application. To the extent that it primarily made submissions, rather than providing factual material relevant to the application, it was rejected by the Court. 3The council neither opposed nor consented to the separate hearing of the preliminary question. 4In my opinion, the ordering of a separate question for determination would, first, not result in a savings in time or costs to the parties because even if determined in Mr Jenkins' favour a hearing on the merits of the proposed development would nevertheless be required. And second, and in any event, it is a matter that can properly and more efficiently be dealt with by the Commissioner hearing the appeal. The application must therefore be dismissed. Mr Jenkins' Proposed Development 5On 16 August 2013 Mr Jenkins, commenced proceedings seeking review of the refusal by the respondent, Clarence Valley Council ("the council"), of a development application ("DA") pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EPAA"). The subject site is located at 29 Mary St, Grafton, New South Wales. 6By letter dated 26 February 2013 the council, refused the DA primarily on the basis that the proposal, comprising three detached buildings, was not a "dwelling house" under the CLEP and was therefore not permitted within the relevant R1 General Residential Zone under the CLEP. 7The CLEP defines "dwelling house" as "a building containing only one dwelling" (emphasis added). 8Other reasons for the refusal given by the council included that: (a)the proposal was an over-development of the site and did not comply with the Clarence Valley Council Development Control Plan in terms of the amount of landscaped area; (b)insufficient vehicle parking areas had been provided; (c)the development was non-compliant with the Building Code of Australia; and (d)valid concerns had been raised in submissions regarding the proposal that were unable to be resolved. 9On 13 September 2013 leave was granted by the Court for Mr Jenkins to make a number of amendments to the DA. The council had opposed the application to amend, arguing the amendments proposed were not minor but represented a "different development", in particular, the change from three buildings to one in the amended proposal. 10The DA in its amended form incorporates revised drawings and features as described in Mr Jenkins' submissions in support of his application for determination of a separate question and Mr Creighton's affidavit. The more significant amendments, in addition to the change from three buildings to one, were: (a)the addition of glazed links between the existing dwelling and the proposed extensions; (b)varied parking arrangements; and (c)modifications to the internal layout including elimination of one kitchen and relocation of the kitchen and other rooms within the building. 11The council does not concede that the amended proposal may now properly be classified as a "dwelling house", arguing that a number of other factors are relevant to determination of this characterisation that have not been met. The council does concede, however, that it is arguable that the proposed amended development now constitutes one building. Applicable Legal Principles as to Whether a Separate Question Should be Ordered 12Rule 28.2 of the Uniform Civil Procedure Rules 2005 ("the UCPR") provides that a "court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings". 13In making such an order, the Court must have regard to the overriding purpose rule contained in s 56 of the Civil Procedure Act 2005 ("the CPA"). 14The legal principles applicable to the exercise of the Court's discretion to order the determination of a separate question were summarised by Jagot J in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; 145 LGERA 276 (at [12]) and restated by her Honour in Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 (at [6]-[9]). 15The principles were recently usefully reformulated and distilled by Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8 as follows (at [10]): (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. 16These principles have been endorsed and applied by this Court on numerous occasions (see, for example, Hunter v Wyong Shire Council [2012] NSWLEC 250 at [12]-[16]; Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 at [11]; Wollongong City Council v Vic Vellar Nominees Pty Limited [2011] NSWLEC 138 at [19] and Reysson v Roads and Traffic Authority [2011] NSWLEC 153 at [10]). 17More recently in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182, the Court of Appeal restated the applicable principles as follows (at [87]-[92]): 87 In Idoport Pty Limited v National Australia Bank Limited (15) [2000] NSWSC 1215, Einstein J (at [7]) summarised the applicable principles when considering an application for the separate determination of an issue made under the former Part 31 r 2 of the Supreme Court Rules (those principles being equally applicable to the exercise of discretion under rule 28.2 of the Uniform Civil Procedure Rules: Pioneer Park Pty Limited (in liquidation) v ANZ Banking Group Limited [2005] NSWSC 832; Matrix Film Investment 1 Pty Limited v Alameda Films llc and Warner Brothers Entertainment and Pictures Inc [2007] NSWSC 523). In so doing, his Honour noted, among other things, that the court is enjoined to give effect to the overriding statutory purpose provided for under the applicable court rules and that the court begins with the proposition that it is ordinarily appropriate that all issues in the proceedings should be disposed of at the one time (Tallglen v Pay TV Holdings Pty Limited (1996) 22 ACSR 130). 88 One set of circumstances in which his Honour noted that the separate determination of an issue might prove to be an appropriate procedure was "where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy" (his Honour there citing CBS Productions Pty Limited v O'Neill [1985] 1 NSWLR 601 at 606 per Kirby P and Dunstan & Simmie & Co Pty Limited [1978] VR 670 at 671 per Young CJ and Jenkinson J). 89 Pausing there, it was not suggested in the above cases that it is necessary (for the power to state a separate question to be exercised) that the determination of the separate question be finally dispositive of the litigation or of one or more issues in the litigation; rather, it was contemplated that it might be sufficient if it would substantially narrow the field of litigious controversy (requiring a quantitative assessment to be made). Disposition of a step necessary for the determination of one or more issues in the proceedings might well have the effect in a particular case of substantially narrowing the field of litigious controversy. Thus, while it is submitted for Allandale that, at most, the separate question would resolve a potential step in the determination of the relevant issue in the compensation proceedings, that of itself does not preclude the exercise of the power under Rule 28.2.) 90 Einstein J also set out various circumstances in which he considered that the separate determination of an issue would rarely be seen to be an appropriate procedure (to some of which reference was made by Mr Lancaster SC, Senior Counsel for Allandale), those including where there are intertwined issues of fact or law (such that the determination of the separate question would not have any substantial effect on the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation) and where there is a possibility that the resolution of the separate issue will not finally determine the issue but merely result in an appeal from that decision in relation to that separate issue creating what his Honour referred to as a multiplicity of proceedings, interruptions to the court and undesirable fragmentation of the proceedings. 91 In various authorities, caution has been advocated in the exercise of such a power (such as Perre v Appand Pty Ltd (1999) 198 CLR 180 at [436] per Callinan J; Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at [24] per Santow J, as his Honour then was; Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [112] - [113] per Young CJ in Eq, as his Honour then was). In Idoport, Einstein J noted the reason for such caution in the following passage: The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings ... 92 However, it has also been recognised that if the separate determination of particular discrete issues may achieve economies in time and expense in the resolution of the proceedings or obviate the necessity for a trial on all issues then it may be both appropriate and desirable for there to be such an order ... 18The Court of Appeal went on, with respect to the exercise of the discretion to order a separate question, to observe that (at [95]-[96]): The reference to a "critical" matter seems to me to be a reference to something that is or may be necessary for the determination of a particular question in the proceedings (as opposed to an incidental or ancillary issue). 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. ... it is important to note that what is being carried out in the exercise of the discretion is a balancing exercise as to the likely utility in the expeditious and cost-effective case management of the proceedings, having regard to the interests of justice as between the parties, of posing the question for separate determination in advance of the hearing. ... 19In summary, strong reasons, such as anticipated savings in time and expense in relation to the final hearing, need to be shown to justify departure from the usual rule that all issues in a proceeding are to be determined at the one time (Allandale at [10], [92] and [95]-[96]). 20Moreover, where the resolution of the question would be dispositive of the litigious controversy or substantially narrow the field of controversy this will favour the making of an order for a separate question. This is not a necessary circumstance, but may be a sufficient one (Allandale at [88]-[89] and [95]). 21Conversely, circumstances in which separate determination of an issue may not be appropriate include: where there are intertwined issues of fact or law, such that the determination of the separate question would not have any substantial effect on the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation; or where there is a possibility that the resolution of the separate issue will not finally determine the issue (Allandale at [90]-[91] and [94]). It Is Not Appropriate to Order the Determination of the Separate Question 22Mr Jenkins submitted that the determination of the separate question of whether the amended proposal constitutes a "dwelling house" is, first, likely to be determinative of the substantive issues in the proceedings without requiring the matter to proceed to a conciliation; and second, is a legal question turning on the proper construction of the terms of the CLEP and involving the resolution of conflicting legal authorities that require the question to be judicially determined. 23The council, correctly, in my view, submitted, however, that the determination of the question was not beyond the power or capability of a Commissioner to determine in the normal course during Class 1 proceedings. It observed, again correctly, that Commissioners of this Court are regularly called upon to determine questions of categorisation. 24The council acknowledges some savings in the length of the hearing before the Commissioner if the question were to be determined separately, but stated that this would not necessarily reduce the estimated hearing time from two to one day. Accordingly, only limited savings in time would result from ordering a separate question. 25More significantly, the council did not agree that preliminary determination of the question would dispose of all the substantive issues in the proceedings. Even if the proposed development were characterised as a "dwelling house" for the purpose of the CLEP, the council would "still press a raft of merit issues" in respect of the development, including matters of bulk, scale and over-development, heritage, non-compliance with the Building Code of Australia, parking, and resident objector concerns. Thus two hearings concerned with substantive matters, rather than one, would result if a separate question was ordered. Far from resulting in a savings in time and costs, a separate determination would have the consequence of escalating both, in view of the inevitable bifurcation of the proceedings. 26Therefore, having regard to s 56 of the CPA, it is my opinion that it would not be an appropriate exercise of my discretion to make an order for a separate question as sought by Mr Jenkins. To do so would be neither "quick" nor "cheap", and it may be concluded, would be unlikely to be "just" to both parties. Orders 27For the reasons given above, the applicant's notice of motion of 16 September 2013 seeking determination of a separate question is dismissed. ********** 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: 23 September 2013