Breust v Wollondilly Shire Council [2014] NSWLEC 24

Land and Environment Court New South Wales

Medium Neutral Citation: Breust v Wollondilly Shire Council [2014] NSWLEC 24 Hearing dates: 19 March 2014 Decision date: 19 March 2014 Jurisdiction: Class 1 Before: Craig J Decision: Orders as set out at [15] Catchwords: PRACTICE AND PROCEDURE - whether the determination of a separate and preliminary question should be ordered in Class 1 proceedings - r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) - question as to permissibility of proposed development - facts agreed for purpose of determining separate question Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Wollondilly Local Environmental Plan 2011 Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 Jenkins v Clarence Valley Council [2013] NSWLEC 161 Category: Procedural and other rulings Parties: Mark Breust (First applicant) Megan Breust (Second applicant) Wollondilly Shire Council (Respondent) Representation: Self represented (Applicants) J Hones (solicitor) (Respondent) Self represented (Applicants) Hones La Hood (Respondent) File Number(s): 10068 of 2014

EX TEMPORE Judgment 1By a notice of motion filed on 12 March 2014 Wollondilly Shire Council (the Council) seeks an order pursuant to Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination of a separate question arising from the contentions that the Council has filed in these proceedings. The critical contention requires a determination as to whether the development proposed is permissible or prohibited by the provisions of the relevant planning instrument. 2Although the question framed by the Council in its present notice of motion requires revision in order to isolate the critical matters to be determined, as it raises the question of permissibility, in the circumstances of this case that question ought to be determined at a preliminary and separate hearing. That conclusion requires explanation. 3The development application that was lodged by Mr and Mrs Breust in June 2012 seeks consent to use an existing building on the rural/residential property owned by them at Orangeville, located in the Wollondilly local government area. That building was erected as a rural barn. However, as a development consent granted by the Council allowed, the barn was able to be used as a temporary dwelling while a new dwelling was constructed on the land. 4A condition of that development consent required that upon completion of the new dwelling, facilities included or installed in the barn, enabling it to be used as a residence, were to be removed. Those facilities that expressly required removal are the kitchen sink, an oven and a laundry sink. Apparently a bathroom located in the barn was provided conformably with the development consent pursuant to which the barn was originally constructed and so is not required to be removed. The new dwelling contemplated by the consent allowing temporary accommodation in the barn has been completed and is occupied by Mr and Mrs Breust. 5The present development application seeks consent to "continue the use of the existing barn" as a dwelling. It is intended by Mr and Mrs Breust that their parents should reside in that building so that they no longer have to rely upon public housing and are able to assist Mr and Mrs Breust in the care of their children. Each of their three children suffer from a medical condition necessitating that they receive a high level of care and management. 6The land that is the subject of the development application is zoned RU2 Rural Landscape under the provisions of Wollondilly Local Environmental Plan 2011 (the LEP). Development permissible with consent within that zone includes what is referred to in the land use table as a "secondary dwelling". That expression is defined in the LEP in terms that arguably comprehend the proposed use of the barn. However, a limitation upon that form of land use is found in cl 5.4. Subclause (9) of that clause limits the area of a "secondary dwelling" to either 60m² or 25% of the total floor area of the principal dwelling, whichever is the greater. 7It is contended by the Council that the floor area of the barn intended for residential use will exceed the area allowed by cl 5.4(9) of the LEP. While the provisions of cl 4.6(2) of the same instrument would appear to allow consent to be granted "even though the development would contravene a development standard" imposed by that instrument, the operation of that provision would appear to be denied by cl 4.6(8)(c) in its application to development addressed in cl 5.4. 8In the alternative, the Council contends that if the use of the existing barn as a dwelling meets the definition of "dual occupancy (detached)" under the LEP, development for that purpose is prohibited in the RU2 Zone. 9It is apparent from this outline of argument to be advanced by the Council that there is a critical question to be determined. If determined in the manner for which the Council contends, almost certainly the appeal will have to be dismissed. The Court has no power to approve development that is prohibited. 10The principles that should be applied in determining an application of the present kind, that is, an application for determination of a separate question, have been articulated in a number of decisions of this Court. The principles were discussed at some length by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 at [87]-[92]. That decision, together with a number of decisions of this Court were, with respect, usefully collected and summarised by Pepper J in Jenkins v Clarence Valley Council [2013] NSWLEC 161 at [19]-[21]. I do not recite but adopt that summary for the purpose of this judgment. 11It seems to me that the substance of the preliminary question which the Council seeks to have determined does have the prospect of substantially narrowing the field of litigious controversy between the parties. A determination that the development is prohibited will avoid the necessity of a site inspection and a hearing of evidence directed to the merit issues identified in the Council's Statement of Contentions. 12Moreover, the issue of permissibility can be addressed having regard to the overriding purpose of the "just, quick and cheap" determination of issues in the proceedings: s 56 Civil Procedure Act 2005 (NSW). The determination of the critical question will depend entirely upon the documentary evidence and an agreed statement of facts. I have enquired of the parties as to whether they can agree upon facts that sufficiently found the arguments to be advanced and they have accepted that this can be done. 13To the extent that there is any factual controversy, it seems to involve no more and no less than the measurement of the floor area of the existing dwelling together with the identification and measurement of those areas within the barn either intended for residential use or that are capable of being used for that purpose The parties can agree on the measurement of all areas in contention so that their respective submissions can argue as to whether or not those areas should be included for the purpose of identifying the proposed dwelling user. Both parties agree that this is an appropriate course. 14For these reasons, I do propose to order the determination of a separate question. While the question framed in the Council's notice of motion would not seem to me to be appropriate, I have framed questions that appear to me to capture the elements of the debate between the parties. 15I therefore make the following orders: (1)Order that the following questions be determined separately from and preliminary to the determination of any other question or issue in the proceedings: (a)whether the applicants' development application dated 10 June 2012 relating to land known as 37-50 John McDonald Way Orangeville constitutes development for the purpose of: (i)a secondary dwelling, or (ii)dual occupancy (detached) within the meaning of Wollondilly Local Environmental Plan 2011. (b)whether the proposed use for either purpose is prohibited by the provisions of cll 5.4(9) and 4.6(8)(c) or any other provision of the LEP. (2)Direct that the parties file - (i)an agreed statement of facts (ii)an agreed bundle of documents relevant to the determination of the separate questions, such documents to be filed and exchanged by 5.00pm on 2 April 2014. (3)Direct that the Council file and serve an outline of its written submissions addressing the separate questions by 5.00pm on 16 April 2014. (4)Direct that the applicants file and serve an outline of their submissions in reply by 5.00pm on 30 April 2014. (5)I give leave to the parties to approach the Registrar immediately for the purpose of obtaining a date for hearing of the separate questions. (6)Exhibits 1 and 2 may be returned.