Land and Environment Court New South Wales Medium Neutral Citation: Bella Ikea Ryde Pty Ltd v City of Ryde Council [2018] NSWLEC 142 Hearing dates: 7 and 12 September 2018 Date of orders: 13 September 2018 Decision date: 13 September 2018 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [26] Catchwords: NOTICE OF MOTION – whether a separate question should be ordered – applicable legal principles – whether the proposed development is in an "accessible area" for the purposes of cl 10 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) – whether there is an inconsistency between cl 4.5A of the Ryde Local Environmental Plan 2014 and cl 14(1)(b) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) – whether appropriate to resolve these questions in preliminary hearing Legislation Cited: Civil Procedure Act 2005 (NSW) s 56 Ryde Local Environmental Plan 2014 cll 4.5A, 4.6 State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) cll 4, 8, 10, 14 Uniform Civil Procedure Rules 2005 (NSW) r 28.2 Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2018] NSWLEC 131 Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Category: Procedural and other rulings Parties: Bella Ikea Ryde Pty Ltd (Applicant) City of Ryde Council (Respondent) Representation: Counsel: C W McEwen SC (12 September); E Lee (7 September) (Applicant) Dr S Berveling (Respondent) Solicitors: Addisons (Applicant) City of Ryde Council (Respondent) File Number(s): 2018/00093347 Judgment 1. Bella Ikea Ryde Pty Ltd ('applicant') appeals against City of Ryde Council's ('Council') deemed refusal of Development Application LDA2017/0063 for demolition and the construction of an in-fill affordable rental housing development comprising 33 two-storey dwelling houses ('proposed development') on the land being Lots 8-12 in DP 6387, known as 298-312 Blaxland Road, Ryde ('site'). 2. The proposed development relies upon Division 1 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) ('ARH SEPP'). By notice of motion filed 7 September 2018, the applicant seeks the separate determination of the following two questions pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW): 1. Whether the proposed development is on land which is within an accessible area for the purposes of cl 10 of the ARH SEPP ('First Question'); and 2. Whether there is an "inconsistency" between cl 4.5A of the Ryde Local Environmental Plan 2014 ('LEP') and cl 14(1)(b) of the ARH SEPP for the purposes of cl 8 of the ARH SEPP ('Second Question'). 1. The First Question relates to whether the applicant is able to rely upon the ARH SEPP. In order to take advantage of the ARH SEPP, the site must be within an "accessible area". Clause 10 of the ARH SEPP relevantly provides: 10 Development to which Division applies (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and (b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977. (2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area. 1. In cl 4 of the ARH SEPP, "accessible area" is defined as follows: accessible area means land that is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday. 1. The Second Question which the applicant seeks resolved by way of preliminary hearing concerns whether cl 14(1)(b) of the ARH SEPP is inconsistent (in the sense that word is used in cl 8 of the ARH SEPP) with cl 4.5A of the LEP. This question determines whether the development standard in the LEP relating to density applies to the proposed development or whether it is set aside by the ARH SEPP. 2. Clause 8 of the ARH SEPP provides: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 1. Clause 14(1) of the ARH SEPP relevantly provides: 14 Standards that cannot be used to refuse consent (1) Site and solar access requirements A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) (Repealed) (b) site area if the site area on which it is proposed to carry out the development is at least 450 square metres… … 1. Clause 4.5A of the LEP is in the following terms: 4.5A Density controls for Zone R2 Low Density Residential Development consent must not be granted to the erection of multi dwelling housing on land in Zone R2 Low Density Residential unless: (a) the site area for the building is not less than: (i) for each 1, 2 or 3 bedroom dwelling—300 square metres, and (ii) for each 4 or more bedroom dwelling—365 square metres, and (b) each dwelling will have its own contiguous private open space. Principles 1. The principles applicable to the exercise of the Court's discretion to order the determination of a separate question were explained by Bathurst CJ, with whom Meagher and Ward JJA agreed, in Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 ('Jackson Lalic Lawyers') at [18]: The separate question was ordered under r 28.2 of the UCPR. The circumstances in which such an order should be made are well established. It is appropriate to exercise the power under the rule where there is a preliminary question of fact or law critical to the disposition of the proceedings, in the sense that if it is decided in one way it will necessarily dispose of them: Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93 at 98. In CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601, it was stated by Kirby P at 606 that the procedure should not be adopted in respect of matters not ripe for determination. In that case it was stated by Kirby P at 606, that a matter is ripe for determination were it is a central issue between the parties and the resolution of the issue will either obviate the necessity for litigation altogether, or substantially narrow the field of controversy. 1. The principles were also distilled by Biscoe J as follows in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 ('820 Cawdor Road') at [10]. His Honour's approach has been endorsed and applied by this Court on numerous occasions and summarises the principles as follows: (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 2005 (NSW) ('the CP 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 a decision depends are contentious, confidence in the utility of the separate question process may be less likely. 1. The principles were recently further considered by Pepper J in Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2018] NSWLEC 131 at [44]-[49]. Her Honour drew attention to the cautionary comments of Basten JA in Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 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… 1. To similar effect, in the earlier case of Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319, Young CJ in Eq said at [112]: … [A]lmost all superior courts are enabled to isolate separate questions of law and fact for decision prior to (or even after) trial of the proceedings generally. However, that power needs to be exercised with care. Very often isolating a separate set of questions actually increases the costs. There are several reasons for this. First, people get lulled into a false sense of security that they are only looking at the cost of a short hearing rather than a three day final hearing. However, by the time one takes into account the extra work considering the impact the answers have on the proceedings, engrossing and serving orders, applications for leave to appeal and the appeal itself, the bill for legal costs may be higher. Secondly, the parties cease to focus on the main issues, and, more importantly, resolving those main issues, whilst their lawyers have an intellectually satisfying debate on some arcane point. Evidence 1. When the motion first came before the Court on 7 September 2018, the applicant relied solely upon the affidavit of Lee Cone dated 7 September 2018 which explained the history of the matter and the questions sought to be determined by way of preliminary hearing. Although the affidavit stated that the resolution of the First Question was "critical to the outcome of the matter", it did not canvas in any detail either any savings in time or expense which would eventuate if the preliminary hearing was ordered or detail the nature and extent of the evidence which would be relied upon either in relation to any preliminary hearing or in relation to the final hearing. 2. In those circumstances, having regard to the principles outlined above and the fact that the whole of the proceedings had earlier been set down for a two day hearing, a length of time which the legal representatives of the parties were confident was sufficient for the hearing of all of the issues in the proceedings, I indicated that I would not be prepared to order that the two questions be heard separately on the basis of the evidence that was then before the Court. This was the case notwithstanding the fact that Council indicated that it did not oppose the notice of motion. 3. On 7 September 2018, I stood the further hearing of the motion over to 12 September in order to allow the applicant, if it so desired, to file further evidence and prepare further submissions in relation to the savings in time and/or expense expected to be obtained by the hearing of the two questions separately. 4. When the matter came back before the Court on 12 September, the applicant relied upon an affidavit of Sharnie Kathleen Belle, dated 12 September 2018. Ms Belle is the solicitor on the record for the applicant and has day-to-day carriage of the matter. Mr McEwen of senior counsel appeared for the applicant, and Dr Berveling of counsel appeared for Council. 5. Ms Belle affirms that the First Question is determinative of the proceedings. If the First Question were decided in the negative, Ms Belle affirms it would not be necessary for the proceedings to proceed to a hearing on the merits which would save the applicant (and I assume Council) marshalling expert evidence in a number of disciplines which would otherwise be required, including expert evidence in planning, traffic, ecology, landscaping, tree preservation, stormwater, and geotechnical engineering. In Ms Belle's view, the First Question is "ripe for determination as a separate question". 6. In relation to the Second Question, Ms Belle affirms that the outcome would likely be determinative of a number of other contentions raised by Council. If the Second Question is decided in the affirmative, Ms Belle affirms that Council's various contentions in relation to bulk and scale will, in the applicant's view, no longer be sustainable. If the Second Question is decided in the negative, Ms Belle affirms that this would have a similar effect, and the applicant would have to consider lodging a cl 4.6 request or amending the application. Her evidence is that the determination of the permissible density on the site would substantially narrow the field of controversy between the parties. Consideration 1. On 12 September 2018, Mr McEwen made further submissions in support of the motion. In relation to the First Question, the applicant submits that it is a mixed question of fact and law and if decided in favour of Council, will be dispositive of the proceedings. 2. The principles summarised above are well known. It is clear that the First Question is of a narrow compass. Although it is a mixed question of fact and law, experienced counsel for both parties were of the view that the evidence was likely to be limited and discrete. Indeed, both agreed that the evidence will be limited to the bus timetable for a particular bus route which operates between Eastwood and the CBD. 3. Given the very narrow scope of the evidence to be relied upon, and having regard to the fact that Council's success in relation to the First Question would be determinative of the proceedings and that this, on Ms Belle's evidence, would mean that evidence in relation to seven discrete disciplines which would otherwise have been required would become unnecessary, I consider it appropriate that a preliminary hearing be ordered for the determination of the First Question, which is likely to be critical to the outcome of the proceedings and may obviate the necessity for an expensive hearing. 4. In relation to the Second Question, I accept the submission of the applicant that, whilst it is "not dispositive in the strict legal sense", it is likely to substantially narrow the areas of controversy between the parties. 5. Moreover, I note that counsel for each party agreed that no evidence would be required in relation to the Second Question which is a pure question of law. 6. Were it not for the fact that I was minded to order a preliminary hearing in relation to the First Question, I may not have been convinced that it is appropriate to order one in relation to the Second Question given that it cannot be determinative of the proceedings. However, given that no evidence is required and that a preliminary hearing will take place in any event, I consider it appropriate that the Second Question be heard together with the First Question in order that, if the applicant is successful in relation to the First Question, the field of controversy between the parties will be narrowed which will have the effect of truncating the time and issues for hearing. . 7. For those reasons, I have determined that it is appropriate to make the orders sought in the applicant's notice of motion. Orders 1. The Court orders that: 1. The matter be set down before a judge on 9 October 2018 for the determination of two preliminary questions, being: 1. Whether the proposed development is on land which is within an accessible area for the purposes of cl 10 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW); and 2. Whether there is an "inconsistency" between cl 4.5A of the Ryde Local Environmental Plan 2014 and cl 14(1)(b) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) for the purposes of cl 8 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW). 1. Orders 6(a), 6(b) and 7 made by Registrar Froh on 6 September 2018 are vacated. 2. In the place of the orders vacated, the parties are directed as follows: 1. The applicant is to file and serve any agreed evidence and its outline of submissions in relation to the preliminary questions by 1 October 2018. 2. The respondent is to file and serve its outline of submissions in relation to the preliminary questions by 5 October 2018. 3. The applicant is to file and serve any submissions in reply by 8 October 2018. ********** 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: 13 September 2018