Land and Environment Court New South Wales Medium Neutral Citation: Hrsto v Canterbury City Council [2013] NSWLEC 195 Hearing dates: 15 November 2013 Decision date: 15 November 2013 Jurisdiction: Class 1 Before: Biscoe J Decision: The following question is to be heard separately and in advance of any other question in the proceedings: Whether the development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within Zone B2 Local Centre pursuant to the provisions of the Canterbury Local Environmental Plan 2012. Catchwords: PRACTICE AND PROCEDURE - motion for determination of separate question in class 1 merits development appeal as to whether proposed development is prohibited Legislation Cited: Uniform Civil Procedure Rules 2005 r 28.2 Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8, (2013) 195 LGERA 170 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, (2013) 195 LGERA 182 Jenkins v Clarence Valley Council [2013] NSWLEC 161 Category: Procedural and other rulings Parties: Andrew Hrsto (First Applicant) Troy Pestano Douglas (Second Applicant) Canterbury City Council (Respondent) Representation: C Hage, agent (Applicants) N/A (Applicants) Marsdens Law Group (Respondent) File Number(s): 10740/13 EX TEMPORE Judgment 1This is a motion by the respondent, Canterbury City Council, for an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 that the following question be heard and determined separately and in advance of any other issue in question in this development appeal in class 1 of the Court's jurisdiction: Whether the development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within Zone B2 Local Centre pursuant to the provisions of the Canterbury Local Environmental Plan 2012. 2The applicant consents to the proposed order. The proceedings are an appeal against the deemed refusal by the Council of a development application to demolish all existing structures on the subject land and build a five and six storey mixed use development containing (among other things) 224 residential apartments. The land is within the zone referred to in the proposed separate question. The Council contends that the development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited in that zone. If this contention is determined in the Council's favour, it would be dispositive of the appeal. 3The parties agree that the hearing of the proposed separate question would be likely to take half a day to a day and that if the entire appeal were to be heard the hearing would likely take two or three days. In the latter event, they think that there would be expert town planning evidence, quite probably traffic and parking evidence, and a view of the property. Thus, determination of the preliminary issue in favour of the Council would save significant costs being incurred by the parties and would achieve the just and relatively cheap and quick resolution of the proceedings. 4In 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8, (2013) 195 LGERA 170 at [10], I summarised the principles to be derived from the authorities to guide the exercise of the Court's discretion whether to order the separate determination of a question as follows: (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. 5This summary was adopted in Jenkins v Clarence Valley Council [2013] NSWLEC 161 at [15] per Pepper J. Subsequent to my decision in 820 Cawdor Road, the Court of Appeal delivered its decision in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, (2013) 195 LGERA 182. Macfarlan JA said at [10]: At the hearing before this court, it was common ground between the parties that strong reasons, such as an anticipated significant saving in time and expense in relation to the final hearing, needed to be shown to justify departure from the usual rule that all issues in a proceeding are to be determined at the one time... 6Ward JA reviewed the authorities at [87] - [92], and said at [92]: ...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... 7In my opinion, these principles are satisfied in this case. Accordingly, I propose to make an order for separate determination of the question set out at the commencement of this judgment. 8I note that the parties have suggested that the separate question would be appropriate for determination by a judge rather than a commissioner. 9By consent, the court orders that the following question is to be heard separately and in advance of any other question in the proceedings: Whether the development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within Zone B2 Local Centre pursuant to the provisions of the Canterbury Local Environmental Plan 2012. 10I also make consent directions for the hearing of the separate question in accordance with short minutes that I sign and place with the papers. 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: 19 November 2013