Moshav Development Rose Bay Pty Limited v Woollahra Municipal Council [2016] NSWLEC 141

Land and Environment Court New South Wales

Medium Neutral Citation: Moshav Development Rose Bay Pty Limited v Woollahra Municipal Council [2016] NSWLEC 141 Hearing dates: 20 October 2016 Date of orders: 20 October 2016 Decision date: 20 October 2016 Jurisdiction: Class 1 Before: Moore J Decision: See [1] to [13] Catchwords: DEVELOPMENT APPLICATION – leave sought to rely on amended plans – issue of permissibility of amendment raised by council – existing use rights – no application for separate question – matter appropriate to be determined at trial – leave granted – s 97B costs order appropriate Legislation Cited: Environmental Planning and Assessment Act 1979, s 97B(2) Category: Procedural and other rulings Parties: Moshav Development Rose Bay Pty Limited (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: Ms A Cowper, solicitor (Applicant) Mr M Cottom, solicitor (Respondent)

Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 239722 of 2016 Publication restriction: No

EX TEMPORE Judgment 1. HIS HONOUR: In these proceedings, the Applicant has sought leave to rely on amended plans that are said, in the affidavit of Ms Cowper of 10 October 2016 read on the motion, to be responsive to matters that arise out of correspondence between the Applicant and the Council about existing use rights on each of the two parcels proposed to be encompassed by the development for which consent is sought. 2. The Council resists the granting of leave to rely on amended plans on the basis that, with respect to the northern of the two allotments, the Council says that the proposed apartments 1, 2 and 3, shown on plan MOSH‑04 Revision F attached to Ms Cowper's affidavit, being proposed residential units at ground level, are impermissible as that which is sought to be approved by the overall development is to be a mixed use development and that consideration of how the concept of mixed use development has been dealt with by this Court in the past does not permit a residential development at ground level in such circumstances - consistent with the definition of "mixed use development" in the Standard Instrument Template, a definition that applies in these circumstances. 3. The Council proposed that I ought not grant leave to amend on the basis that the nature of that which would proceed to be determined may well be impermissible. However, I am dealing with this in circumstances where there are two important matters that need to be noted. 4. First, the application that incorporates development at ground level for residential purposes, although originally proposing it on both allotments and now only seeking to propose it on one allotment, was accepted by the Council. Therefore, I am dealing with an application to amend a development that was accepted by the Council in a form which the Council now says is impermissible. I am not, for these proceedings, being asked to permit the insertion in a plan, for the first time, of an element said by the Council to be impermissible. 5. Second, there is no application from the Council to have the question of whether or not there is existing use rights for ground-level residential accommodation applying to the northern allotment determined as a separate question. 6. As I indicated to Mr Cottom, the Council's solicitor, during the course of our exchange, I am concerned that, even if I were prepared to contemplate the determination of that question as a separate and precursor matter (despite there being no application from the Council to do so), it would not be dispositive of the proceedings. The basis of permitting matters to be dealt with by separate question is where, even if not absolute certainty that determination of the separate question would give rise to the completion of the proceedings, there should be a very high probability of that being the case. 7. Absent, however, an application for a separate question, it is not appropriate for me on this motion simply either to embark upon determining the question of the existing use rights or setting the matter down to be dealt with prior to a hearing on the merits. 8. It may well be, after the provision of further material to the Council by the Applicant, on the basis of trying to establish existing use rights (if the Applicant proposes to do so) or upon a merit assessment by the Council and further discussions between the parties on the merit of the proposed amended plans, that there may be a position arising where there can be a contingent agreement that development in either form A or form B will proceed, depending on the outcome of the determination of existing use rights or not. 9. That, however, is not the position that is presently before me as the Council has not undertaken, yet, any merit review of the proposed application - instead relying on its concerns about the permissibility of ground-level accommodation on the northern allotment being dealt with first. 10. It is not appropriate to do so. 11. I propose to grant the order sought in order (1) in the Notice of Motion that has been moved by Ms Cowper this morning. 12. I propose to also make an order pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 that the Applicant is to pay the Council's additional costs as a consequence of the amendment of the development application, the form provided for in the statute. 13. The Applicant is to provide Short Minutes of Order reflecting my decision and those orders will be made in chambers. 239722 of 2016 - Moshav Developments v Woollahra MC - SMO - 20 Oct 16 (254 KB, pdf)