Land and Environment Court New South Wales Medium Neutral Citation: Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4) [2016] NSWLEC 126 Hearing dates: 22 September 2016 Date of orders: 22 September 2016 Decision date: 22 September 2016 Jurisdiction: Class 1 Before: Pepper J Decision: Application for a separate question dismissed. Catchwords: SEPARATE QUESTION: whether Court should order the hearing of separate question about existing use rights – applicable legal principles – application dismissed. Legislation Cited: Civil Procedure Act 2005, ss 56–60 Environmental Planning and Assessment Act 1979, s 106 Environmental Planning and Assessment Regulation 2000, cl 42 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 Minister for Planning v Rose Bay Marina Pty Ltd [2003] NSWCA 119; (2003) 123 LGERA 181 oOh! Media Assets Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1269 Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 2) [2016] NSWLEC 110 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 3) [2016] NSWLEC 114 The Owners - Strata Plan No 855 v Gosford City Council [2010] NSWLEC 106 The Owners - Strata Plan No 855 v Gosford City Council [2011] NSWLEC 9 Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 Category: Procedural and other rulings Parties: Royal Motor Yacht Club (Broken Bay) Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: P Tomasetti SC (Applicant) L Waterson (Respondent) Solicitors: Allens Linklaters (Applicant) Kind & Wood Mallesons (Respondent) File Number(s): 2016/158192 Publication restriction: Nil Judgment The Council Makes a Second Application for a Separate Question 1. This is the second attempt by the respondent in these Class 1 proceedings, the Northern Beaches Council ("the council"), to apply for a question to be heard and determined separately from any other issue to be determined in these proceedings. The application is now opposed (it was initially consented to during the first attempt) by the applicant, Royal Motor Yacht Club (Broken Bay) Pty Ltd ("RMYC"). 2. The power of the Court to separately hear and determine a question is contained in r 28.2 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). This power must be exercised having regard to the overriding purpose contained in s 56 of the Civil Procedure Act 2005 ("the CPA"), including the matters informing that purpose contained in ss 57-60 of that Act. 3. The proposed separate question is in identical form to the question that was proffered to the Court on 21 July 2016 in Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 ("Royal Motor (No 1)") before Robson J. It is as follows: Is the use of that part of the site the subject of development application (Development Application No379/15) which is within the W1 Natural Waterway zone for the purpose of a marina within the meaning of the Pittwater Local Environment Plan 2014 a lawful existing use, within the meaning of s 106 of the Environmental Planning and Assessment Act 1979? If the answer to the question above is yes, what is the extent and nature of the lawful existing use? 1. Based on the evidence and submissions then before the Court, Robson J granted the order for the separate determination of the question. 2. However, due, in large part, to emergent complexity in the evidence likely to be required to answer the separate question and the persistent non-compliance with the Court ordered timetable to prepare the separate question for hearing, the order for a separate question was subsequently revoked (Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 3) [2016] NSWLEC 114. See also Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 2) [2016] NSWLEC 110). 3. In doing so, the Court in Royal Motor (No 3) stated that (at [8]-[13], emphasis added): 8 What was revealed by this third attempt at vacating the hearing was that the application made before Robson J requesting a separate question was made prematurely. Plainly the parties had not properly considered all of the legal and evidential ramifications of the separate question as posed. It was no doubt for this reason that Robson J was not informed of the need for expert town planning evidence and other "historical" evidence. It was also no doubt for this reason that his Honour was told that the hearing of the separate question would only take two days, an estimate which, in light of the evidence outlined above, can no longer be maintained. 9 RMYC properly conceded that the matter had now become more detailed and difficult than originally envisaged when it was before Robson J. However, the council sought to minimise this complexity by arguing that the Court would, at the hearing of the separate question, only be required to examine the historical use of the subject site to determine whether there was an existing use right and the nature and extent of this right. 10 But this submission, in my view, oversimplifies the scope of the inquiry. For example, establishing the nature and extent of any existing use right in order to determine if the proposed use of the site is lawful, will inevitably invite a comparison between the previous use or uses of the site, the current use, and the use as proposed in the development application (which was not described in the separate question and may be contestable). Similarly, it is possible that any prior existing use right has or will be lost by reason of the intensification of the use of the site, either over time, or by the proposed development. In this regard, I note that, as RMYC observed, it is not yet known what merit contentions the council is likely to raise in respect of the proposed development. 11 Indeed in my experience, reliance on existing use rights to overcome a seemingly prohibited development does not often give rise to neat and orderly evidential contests attended by confined and discrete legal issues. The extent to which this makes such matters amenable to determination by separate questions is, therefore, in my opinion, debatable. Further, I am mindful of the caution advocated in the exercise of the power to grant a separate determination of an issue as opined by Ward JA in Allendale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (at [91]): 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 [his Honour there citing Tallglen v Pay TV Holdings Pty Limited; Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J) and Century Medical v THLD [2000] NSWSC 5 (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J)] (my emphasis). 12 Given the complexity of the legal and factual issues now raised by the parties, and the length of time that any hearing of the separate question will now take, the preferable course is to set aside the order setting a separate question down for the hearing and determination. Doing so facilitates the overriding purpose contained in s 56 of the CPA having regard to the matters contained in ss 57-60 of that Act. 13 In setting aside the order made by the Court on 21 July 2016, nothing should be construed as being in any way critical of the Court's decision to initially set down the proposed separate question for determination. That decision was made on the basis of the submissions and material put before it at the time. Since then the circumstances underpinning the initial application have changed markedly, which, if nothing else is evident from the fact that this is the third attempt at vacating the hearing on the basis that the parties are not ready. 1. In my opinion, little has changed, and, after having regard to the submissions of the parties and the evidence put before the Court on the present application, I am unpersuaded that the separate determination of the question as framed is appropriate. In short, I do not consider that there will be the anticipated savings in costs and time that would warrant the making of an order for a separate question. RMYC Seeks to Alter and Add to an Existing Marina 1. The factual background to this current application was set out in the judgment of Robson J in Royal Motor (No 1), which I respectfully adopt for present purposes (at [1]-[2]): 1 The matter before the Court is a notice of motion filed on 21 June 2016 by Northern Beaches Council ('the Council'), the Respondent in a Class 1 appeal by the Applicant (Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd) against the deemed refusal of a development application lodged with the Council in September 2015. 2 The development application sought consent for what was described as "[a]lterations and additions to an existing marina at Royal Motor Yacht Club involving the removal of 28 existing berths and new extension to accommodate a total of 67 new berths [and] Relinquishment of between 6 and 12 existing swing moorings". The development application was accompanied, inter alia, by an Environmental Impact Statement dated September 2015 ('the EIS'). The development application and the EIS were attached to the Class 1 application. 1. In summary, the RMYC claims that the proposed marina development is permissible with consent due to the presence of existing use rights as defined by s 106 of the Environmental Planning and Assessment Act 1979, notwithstanding the council's claim that the development is prohibited development in the W1 Natural Waterways zone under the Pittwater Local Environment Plan 2011 ("the LEP"). Applicable Legal Principles 1. The legal principles to be applied in determining whether or not to order the determination of a separate question are well known. They were helpfully summarised by Robson J in Royal Motor (No 1) (at [10]-[11]): 10 The principles applicable to the exercise of the Court's discretion to order the determination of a separate question were distilled by Biscoe J as follows in820 Cawdor Road Pty Ltd v Wollondilly Shire Council at [10] and have been endorsed and applied by this Court on numerous occasions: (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. 11 The Court of Appeal considered the principles in Allandale Blue Metal Pty Ltd v Roads and Maritime Services at [87]-[97] and the principles were also considered by this Court in Dial a Dump Industries Pty Ltd v Roads and Maritime Services at [30]-[36] and Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 at [14]. 1. In addition, regard must be had to the observations of Ward JA in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (at [91]), quoted above at [6]. As McFarlane JA in the same case opined (at [10]): 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 (see for example Tallglen Pty Ltd v TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 - 2). 1. More recently, Basten JA in Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 observed as follows (at [57]: …The convenience of separating that question from issues relating to relief is far from clear. Had the relatively confined issues raised by the proceedings in the Land and Environment Court been determined as whole, much time and energy would have been saved and the matter could have been finally disposed of by this Court on appeal… Position of the Council 1. The council sought to reagitate the separate question by notice of motion filed 16 September 2016. The application was supported by an affidavit of Ms Debra Townsend, affirmed 21 September 2016. Ms Townsend is a partner at King & Wood Mallesons, the solicitor for the council. 2. The affidavit deposed to the following matters, namely, that: 1. since the delivery of Royal Motor (No 3), RMYC has served the following further evidence in relation to the separate question: Affidavit of Jayson McDonald sworn 16 September 2016; Expert Report of Michael Trifilo dated 16 September 2016; Expert Report of Mark Dunn dated 16 September 2016; Statement of Evidence of Kristy Hodgkinson dated 16 September. 22 I have reviewed the evidence served by the Applicant in relation to the separate question and describe the nature of the evidence in the table below: Witness Nature of Evidence Stephen Euers dated 31 August 2016 Lay evidence describing the current and some historic use of facilities at the site and annexing a bundle of documents. Miles Felstead dated 31 August 2016 Lay evidence describing the historic use of facilities at the site. Albert Brian Taylor dated 31 August 2016 Lay evidence describing the historic use of facilities at the site. Mark Deuter dated 11 August 2016 Expert photogrammetry evidence which interprets aerial photographs of mooring locations in 1961 and 1982. Michael Trifilo dated 30 August and 16 September 2016. Expert evidence comprising a survey plan showing the relationship between the existing marina, the proposed extension, the relevant land use zones and the Applicant's land tenures. Jayson McDonald dated 16 September 2016 Lay evidence which describes the operation of the Club and the current use of club facilities including the swing moorings. Maria Doheny dated 1 September 2016 Evidence regarding the provenance of aerial photographs referred to in the other evidence. Mark Dunn dated 16 September 2016 Expert historical evidence regarding the development of the Club and the use of the waterways based on research of historic documents. Kristy Hodgkinson dated 16 September Expert town planning evidence concerning the planning history of the Club, a description of the DA and a summary of documents obtained from the Council's file in respect of the site and whether existing use rights are established. 1. from her review of RMYC's application commencing the Class 1 proceedings, the threshold primary issue in dispute was whether the RMYC "has the benefit of an existing use under subsection 106(a) of a sufficient nature and extent to enable the Applicant's proposed development to be by subject of a consent under regulation 42" of the Environmental Planning and Assessment Regulation 2000, that latter of which permits, with consent, the enlargement, expansion or intensification of an existing use on the land on which the existing use was carried out immediately before the commencement of the planning instrument that gave rise to the existing use right; 2. the council did not "propose to adduce any evidence in reply" apart from evidence being sought from an expert photogrammetist nor was it "likely" to require RMYC's witnesses for cross-examination; 3. the evidence required to resolve the existing use issue comprised lay, town planning, surveying, photogrammetric, and historical evidence; 4. while the council "has not yet formulated its contentions", the council's merit contentions were "likely to include": a. insufficient information in relation to height of buildings; b. potential excessive height and impacts flowing from the proposed structures and vessels at that height (town planning evidence); c. insufficient information in relation to car parking; and d. potentially insufficient provision of car parking spaces (traffic evidence) and associated amenity impacts (town planning). 1. that if the matter were to proceed to a hearing on the existing use rights issue "at the same time" as an assessment on the merits, there would be "additional" work comprising a site view of the property (with an estimate of half a day); objector submissions (with an estimate of two hours); town planning evidence (with an estimate of half a day); traffic evidence (with an estimate of half a day); and opening submissions on the merits of the development (with an estimate of one day); 2. the total duration of the appeal would be three to four days; 3. consideration of the merits would be likely to require: a. preparation of a Statement of Facts and Contentions; b. view of the site by the parties, experts and legal representatives prior to any hearing of the merits; c. preparation of expert evidence on merit issues; d. joint conferencing of experts and preparation of a joint report; e. preparation of draft conditions of consent and conditions in reply; f. preparation of additional bundles of documents on merits matters; and g. discussions with objectors to assist them in preparing for giving their evidence. 1. in addition, any s 34 conference would replicate most the work referred to above; 2. the hearing of the separate question would only take two days. In addition, it was intended that an agreed statement of facts and an agreed bundle of documents would result in a further reduction in hearing time; and 3. the likely costs of a s 34 conference and a full hearing on the merits would be approximately $130,000 ($65,000 per party). 1. Ms Townsend was not cross-examined on the contents of her affidavit. However, in submissions Mr Luke Waterson, counsel for the council, conceded that the estimate of costs of $130,000 was "at their highest". 2. In addition to the savings in costs and time, Mr Waterson submitted that, first, if answered in the negative, the separate question would be entirely dispositive of the proceedings. Second, that the merit issues were different to the existing use issues and that only the height of the proposed development and its impact on car parking and traffic would be in contention. Third, even if the Court found that there was an existing use right but only in respect of part, not all, of the land on which the proposed development was carried out, such a determination would nevertheless narrow the field of controversy and potentially allow for the resolution of the proceedings assuming RMYC amended its application. Fourth, none of the existing use evidence would be relevant to the merits issues raised by RMYC. Fifth, the proposed question concerned a "clear" question of mixed fact and law. Sixth, the council was, with the exception of the photogrammetist, "unlikely" to adduce any "significant evidence in reply", and moreover, most of the basic facts "should be able to be agreed" in a statement of agreed facts. Position of RMYC 1. RMYC's position may be summarised thus: to separate out the questions was likely to add to the time taken to dispose of the proceedings and the cost of their disposal. And, if the height and car parking merit contentions were the only merit contentions raised by the council, they were of insufficient compass, scope and complexity to justify determining them separately. 2. RMYC relied on part of an affidavit of Ms Odette Adams, affirmed 20 June 2016. Ms Adams is the solicitor for the council employed by King & Wood Mallesons who has the day to day carriage of the matter. At paragraph 16, and somewhat contrary to Ms Townsend's evidence, Ms Adams deposed to the following: For a development of this size and significance, which is integrated development and designated development, I would estimate that the time and cost involved in the parties litigating a merits appeal regarding the development would be considerable. Numerous areas of expert evidence would be required to be called and, in my estimation, the appeal would run for up to 6 days. 1. RMYC also relied on a letter from the council addressed to it dated 15 April 2016, which gave reasons why the council was likely to refuse the application. The letter essentially, and relevantly for present purposes, stated that: 1. inconsistency with existing zoning was a major concern for the council and any claim for existing use rights associated with swing moorings could set a precedent; 2. that on the material before it, the existing use rights associated with swing moorings in the W1 zone had not been established "where the extension is proposed"; 3. there was a technical issue regarding the building height development standard under the LEP and that this could not be varied absent a written request by RMYC; and 4. that sufficient time had been provided to RMYC to provide additional information in respect of its development application and that therefore no further information would be accepted and nor would any further amendment to the application be entertained. 1. RMYC did not cavil with the time estimate given by Ms Townsend in her affidavit if the matter were to proceed directly to a final hearing. The Application Must Be Rejected 1. Largely for the reasons submitted by RMYC, I am of the opinion that the council's application for the determination of a separate question must be rejected. 2. While it is true that if the separate question is answered in the council's favour it will be wholly dispositive of the proceedings at first instance, there is no guarantee that the Court's decision will not be appealed. Put another way, the determination of the separate question is unlikely to assist in finality of litigation. 3. And, in any event, it is entirely possible that the proposed development will fail on the merits irrespective of the existing use rights issue. This weighs in favour of hearing and determining all of the issues together. 4. There are, as RMYC notes, other considerations that militate against separating out the question as framed: 1. first, many of the experts giving evidence in relation to the existing use rights issue will also be likely to give evidence relating to the merit issues raised in the appeal (particularly the town planning and survey experts). Accordingly, if the separate question is not determined in the council's favour, the spectre of a duplication of evidence by various witnesses looms large, thereby increasing costs; 2. second, the remaining evidence (historical, photogrammetric and lay), is, as the council submits, amenable to distillation to an agreed statement of facts which will not add in any material way to the length of any appeal dealing with all of the issues at a single hearing; 3. third, it is almost certain that a view will be required for the purposes of determining the separate question in any event; 4. fourth, if, as the council states, the only merit issues are those concerned with parking, traffic and height, these are likely to be in short compass and can be easily, efficiently, and inexpensively, dealt with at a full hearing of the appeal; 5. fifth, having said this, it is not abundantly clear that these are the only merit issues to be raised by the council. The evidence is conflicting on this point. The council has yet to unequivocally articulate what the merit issues are. It is not inconceivable, therefore, especially given the tortured procedural and evidential history of the appeal to date, that further merit contentions are sought to be relied upon by the council which may have a bearing on the determination of the separate question; 6. sixth, similarly, the separate question – as framed – is, when closely analysed, more dependent on finding of facts rather than the determination of a legal question which tends against the granting of a separate question. Although in reply Mr Waterson submitted that the resolution of the separate question turned principally on the interpretation of a hitherto unidentified provision of a historical ordinance, this has neither been clearly identified to the Court nor, as it transpired, to RMYC; 7. seventh, there is no cogent reason not to immediately proceed to a s 34 conference where the existing use rights issue and the merits issues can be dealt with together. As stated above, town planning evidence and survey evidence will be called in aid of the existing use rights question and the merit questions. It is possible, moreover, that the merit issues are able to be resolved at the s 34 conference and the only matter to be determined at a final hearing is the existing use rights issue. Furthermore, insofar as the extent and nature of the existing use rights raises questions of fact that also are amenable to discussions at the s 34 conference by the town planners, surveyors and photogrammetrists, this may leave little, if anything, to be determined at any subsequent hearing; 8. eighth, it cannot be said with confidence, particularly having regard to the reasons given in the letter dated 15 April 2016, and the decision in Minister for Planning v Rose Bay Marina Pty Ltd [2003] NSWCA 119; (2003) 123 LGERA 181 (at [25] and [30] ff), that the council's opposition to RMYC's existing use rights case is so overwhelmingly strong that it all but compels ordering a separate question for determination (this is not to say, however, that its case is necessarily weak); 9. ninth, I do not consider that a savings of two days out of a maximum of four days of hearing to be sufficient to warrant the separation of the question; 10. tenth, as counsel for RMYC, Mr Peter Tomasetti SC, noted in his submissions, there have been many instances in this Court where a threshold existing use rights issue has been raised but the Court has nevertheless determined the appeal in its entirety (see, for example, The Owners - Strata Plan No 855 v Gosford City Council [2010] NSWLEC 106 and The Owners - Strata Plan No 855 v Gosford City Council [2011] NSWLEC 9 and oOh! Media Assets Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1269). 1. For these reasons, I am of the view that it is preferable, as an exercise of the Court's discretion, to decline to order the separate question. While the question concerning the existence, extent and nature of the existing use rights which RMYC claims the benefit of is certainly capable of separate determination under r 28.2 of the UCPR, I am not sufficiently convinced that this course will facilitate the just, quick and cheap resolution of the issues in the appeal (s 56 of the CPA). Orders 1. I therefore dismiss the council's notice of motion. The exhibits are to be returned. 2. No order for costs was pressed by RMYC, and these being Class 1 proceedings it is appropriate that no order is made. 3. I note that the matter is listed for further directions before the Registrar early next week. There is, accordingly, no need to make any consequential orders following on from the dismissal of the notice of motion. ********** 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 2016