Land and Environment Court New South Wales Medium Neutral Citation: Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 68 Hearing dates: 24 April 2015 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Class 1 Before: Biscoe J Decision: By consent, order that the following questions be determined separately and in advance of any other question in the proceedings: a) Does cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development given that there is no "existing maximum floor space" specified in the Pittwater Local Environmental Plan 2014 ("PLEP") or any other environmental planning instrument or development control plan that applies to the land the subject of the appeal. b) Is the "Not more than 9 dwellings or less than 7 dwellings" specification for "Buffer area 3b" in the table to cl 6.1(3) of the PLEP a "development standard" to which cl 4.6 of the PLEP applies? Catchwords: PRACTICE AND PROCEDURE – whether by consent separate questions should be ordered in Class 1 appeal against deemed refusal of a development consent. Legislation Cited: Uniform Civil Procedure Rules 2005 r 28.2 State Environmental Planning Policy (Affordable Rental Housing) 2009 cl 13(2) Pittwater Local Environmental Plan 2014 cll, 4.6, 6.1(3) Cases Cited: Challenger Listed Investments v Valuer-General [2015] NSWLEC 7 Category: Procedural and other rulings Parties: Lotus Project Management Pty Ltd (Applicant) Pittwater Council (Respondent) Representation: COUNSEL: N Hinks, solicitor (Applicant) O Adams, solicitor (Respondent) SOLICITORS: Hones La Hood (Applicant) King & Wood Mallesons (Respondent) File Number(s): 10223/15 EX TEMPORE Judgment 1. This proceeding is an appeal in Class 1 of the Court's jurisdiction against deemed refusal of a development application. The respondent Council moves pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 for an order, by consent, that that the following questions be determined separately and in advance of any other question in the proceedings: 1. Does cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development given that there is no "existing maximum floor space" specified in the Pittwater Local Environmental Plan 2014 ("PLEP") or any other environmental planning instrument or development control plan that applies to the land the subject of the appeal. 2. Is the "Not more than 9 dwellings or less than 7 dwellings" specification for "Buffer area 3b" in the table to cl 6.1(3) of the PLEP a "development standard" to which cl 4.6 of the PLEP applies? 1. The parties agree that if each of the proposed separate questions is answered in the negative, then the Class 1 appeal is doomed and must be dismissed. If, however, either question is answered in the affirmative, then there will be merits issues (not yet precisely defined) to be determined. 2. In the circumstances, I consider it appropriate to make the proposed consent order set out above: see the principles summarised in Challenger Listed Investments v Valuer-General [2015] NSWLEC 7 at [14]. In addition, I will make directions for a hearing date for determination of the separate questions and in relation to pre-hearing matters in accordance with consent short minutes of order of today's date 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: 28 April 2015