Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 147

Land and Environment Court New South Wales

Medium Neutral Citation: Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 147 Hearing dates: 7 August 2014 Decision date: 07 August 2014 Jurisdiction: Class 1 Before: Pain J Decision: Determination of separate question not ordered Catchwords: PROCEDURE - whether Court should order hearing of separate question Legislation Cited: Shellharbour Local Environmental Plan 2013 Uniform Civil Procedure Rules 2005 r 28.2 Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 Category: Procedural and other rulings Parties: Shellharbour City Council (Applicant on motion) Altz Pty Limited (Respondent on motion) Representation: Ms H Irish (Applicant on motion) Mr O'Donnell (solicitor) (Respondent on motion) RMB Lawyers (Applicant on motion) Addisons (Respondent on motion) File Number(s): 10464 of 2014

EX TEMPORE Judgment 1Before me is an application for a separate question to be identified and determined as a preliminary matter in these Class 1 proceedings as identified in a Notice of Motion filed on 31 July 2014. The Respondent, Shellharbour City Council, is the Applicant on the motion. 2The motion is opposed by the Applicant, Altz Pty Ltd. The pertinent rule is r 28.2 of the Uniform Civil Procedure Rules 2005 (UCPR). The Court is asked to answer as a separate issue, set out in 1(a) of the Notice of Motion that the development, the subject of development application DA174/2014, which is the matter the subject of the appeal, is properly categorised as a shop as defined in the Shellharbour Local Environmental Plan 2013 (the Shellharbour LEP), and not the type of shop defined as neighbourhood shop in the Shellharbour LEP. 3The application was supported by an affidavit of Mr Peter Moggach dated 30 July 2014. He usefully sets out the history of related Class 4 proceedings, which have presently been adjourned pending resolution of this appeal. Mr Moggach identifies the contentions in the statement of facts and contentions, exhibit A in these proceedings, and also states why he believes a separate determination is appropriate at par 9 to 17 in his affidavit. I note that he identifies that this is an important question relating to the proper characterisation of a neighbourhood shop, which is an issue apparently not determined by the Court to date. 4Ms Irish for the Respondent submits that the Class 1 application (exhibit B) sets out the entire compass of facts necessary for determination of this question. Relevant facts are also contained in the statement of environmental effects produced by the Applicant in the DA submitted to the Council for a neighbourhood shop to operate as part of a larger area used for various purposes at premises at unit 2, 9-11 Princess Highway, Albion Park Rail. 5I was referred to plans which show the floor areas for different parts of the development. At p 9a in exhibit B a list of products intended to be sold at the premises was identified. Essentially Ms Irish says that since there is a limited factual basis the matter can be determined squarely in relation to contention A solely as contained in the statement of facts and contentions, and is an appropriate matter for determination as it would save costs and is more efficiently dealt with separately from the hearing of this substantive merit appeal. This approach, she says, is supported by a recent decision of Biscoe J in Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96 where I note his Honour referred to a number of relevant principles at [8], which are well known to the Court. His Honour referred to a recent decision of the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182, particularly the decision of Macfarlan JA who referred to the need to identify a significant saving in time and expense in relation to the final hearing, and also a need to justify departure from the usual course that all issues in a proceeding are determined at the one time. This passage is also relied upon by Mr O'Donnell for the Applicant in opposing the Council's motion. 6Essentially I agree with and will adopt the submissions of Mr O'Donnell that this is not an appropriate matter in which a separate question should be determined. It is very clear that contentions A, B and C, as contained in the statement of facts and contentions, are interrelated. 7It seems to me this is very much a mixed question of fact and law. It will be very difficult, in my view, to reach any kind of agreement on facts that could be appropriately put to the Court. That is an essential matter that would have to be done in order for a separate determination to be usefully dealt with in the one day said by the Council to be required. 8I note Mr O'Donnell's submissions usefully refer to the decision of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 where their Honours emphasise that a single-issue trial should only be embarked upon when the utility, economy and fairness to the parties is beyond question. It is not an appropriate use of the Court's powers to have this preliminary question in this particular case determined separately, given the intertwined issues of fact and law as between contentions A, B and C. 9I note also in Mr O'Donnell's submissions that the Applicant wishes to call town planning and retail evidence as to a number of matters that are relevant to the definition of a neighbourhood shop. That definition will require the Court to look at a number of aspects of the definition as Mr O'Donnell has emphasised, not least being what is the meaning of the day-to-day needs of people who live or work in the local area and what activities are ancillary to such an activity. I consider that town planning and retail evidence are likely to be matters which the Applicant would wish to call. In these circumstances I do not make the orders sought for a determination of a separate question in the Council's Notice of Motion.