Land and Environment Court New South Wales Medium Neutral Citation: Williams v Shellharbour City Council [2019] NSWLEC 135 Hearing dates: 24 September 2019 Date of orders: 24 September 2019 Decision date: 25 September 2019 Jurisdiction: Class 1 Before: Pepper J Decision: Separate question ordered. See orders at [41]. Catchwords: SEPARATE QUESTION: whether to order a separate question – legal principles to be applied – question if answered negatively would be entirely dispositive of the proceedings – delay in making the application – substantial savings in costs and time – separate question ordered – parties not entitled to cease preparing for final hearing pending determination of separate question thereby causing potential vacation of hearing dates. Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.46 Land and Environment Court Act 1979, s 34 Shellharbour Local Environmental Plan 2013, cls 4.1AA, 4.6(6), 5.10(10), 6.1, 6.3, 6.11, Sch 5 Uniform Civil Procedure Rules 2005, r 28.2 Cases Cited: Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 Hunter v Wyong Shire Council [2012] NSWLEC 250 Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121; (2008) 71 NSWLR 306 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Category: Procedural and other rulings Parties: Brad Williams (Applicant) Shellharbour City Council (Respondent) Representation: Counsel: Ms A Pearman (Applicant) Ms P Hudson (Solicitor) (Respondent) Solicitors: Planning Law Solutions (Applicant) Mardsens Law Group (Respondent) File Number(s): 2018/359474 Judgment The Parties Seek the Determination of a Separate Question 1. By notice of motion filed on 9 September 2019, the parties to a Class 1 appeal seek the determination of the following separate question in advance of the final hearing which has been listed for three days commencing on 25 February 2020: (a) is the proposed development, which is a community title subdivision, "development for any purpose" pursuant to cl 5.10(10) of Shellharbour Local Environmental Plan 2013 ("LEP")? (b) if the answer to question (a) is "no", is the proposed development, being a community title subdivision which proposes lots that are less than the minimum subdivision size shown on the Lot Size Map in relation to the subject land pursuant to cl 4.1AA of the LEP, permissible with consent under the LEP? 1. The question above was a reformulation of the original question contained in the motion, reached after discussion with the parties during the course of argument on the motion and in light of the agreed facts. As a consequence, the question can be characterised as a question of law, wholly divorced from the merits of the matter, and not a question of mixed law and fact, as previously framed. Apart from agreed facts, only limited evidence will be required to determine the separate question. No expert evidence will be required. 2. The Court agrees that it is appropriate to order the separate question as reframed above, subject to one caveat, namely, that because of the lateness of the application (an explanation is provided below), the parties cannot be guaranteed an answer to the question in sufficient time to allow them to avoid preparing for the final hearing, including the preparation of expert evidence. This was acknowledged by the parties. Mr Williams Wants a Six Lot Community Title Subdivision 1. The facts underlying the application were not in contention and are summarised below. 2. Development application 0308/2017 (as amended) ("the DA") seeks consent for the subdivision of land to create six community title allotments, comprising five rural lots and one common lot, which includes the following works: 1. earthworks to create a 20 m by 30 m building entitlement envelope within proposed Lots 2, 3, and 4; 2. an upgraded and extended access driveway within the common lot, with amended driveway crossover and turning head arrangements; 3. stormwater management works; 4. tree and dam removal; 5. landscape embellishment works, including new dry stone entry walls, new planting of trees and native grasses, ballast rock swale for stormwater purposes, and post and rail fencing throughout; and 6. the establishment of vegetation management zones and associated landscape maintenance works. 1. The areas of the proposed lots are as follows: PROPOSED LOT AREA (HA) Lot 1 18.61 Lot 2 0.60 Lot 3 0.60 Lot 4 0.70 Lot 5 14.93 Common lot 0.42 1. The existing dwellings on proposed Lots 1 and 5, including Heritage Item I168 ("Seaview") in the Shellharbour Local Environmental Plan 2013 ("LEP"), and the remnant dry stone walls were proposed to be retained. 2. The DA constitutes integrated development pursuant to s 4.46 of the Environmental Planning and Assessment Act 1979 because the subject property includes bush fire prone land and a bush fire safety authority is required from the Rural Fire Service in relation to the application. The Site 1. The site is formally known as Lot 1 in DP132404, 167 Swamp Road, Dunmore ("the site"). 2. The total area of the site is 35.9 ha. The site is an irregularly shaped parcel of land bisected by Swamp Road. The dimensions of the sites boundaries are as follows: 1. northern: 976.91 m; 2. eastern: 268 m; 3. western: 357.96 m; and 4. southern: 900.984 m. 1. The site is oriented from east to west and includes farm buildings on either side of Swamp Road as well as pockets of woodland. The site is mapped under the LEP as being affected by Terrestrial Biodiversity. Accordingly, the Council's mapping system includes layers relating to the vegetation types located on the site. 2. The existing development has vehicular access by Swamp Road and Browns Road. 3. The site is zoned part E3 Environmental Management and part RU2 Rural Landscape under the provisions of the LEP. 4. The zoning plan extract is shown below: 1. The site contains Heritage Item I168, listed in Sch 5 of the LEP. The Item is locally listed as a "General Item" as follows: Dunmore "Seaview" and dry stone walls 167 Swamp Road Lot 1, DP 132404 Local I168 1. The site is also mapped as having Aboriginal heritage value and is located within the Mineral Resource Transition area under cl 6.11 of the LEP. 2. A small portion of the far south eastern corner of the site is mapped as being affected by Class 4 Acid Sulphate soils. As such, cl 6.1 of the LEP applies. 3. The southern and northern part of the property is mapped as flood prone land, and cl 6.3 of LEP therefore applies. Procedural History 1. The DA was lodged with the respondent, Shellharbour City Council ("the Council"), on 29 June 2017. 2. The application was refused under delegated authority on 17 July 2018. 3. On 22 November 2018, the applicant, Mr Brad Williams, commenced proceedings in Class 1 of the Court's jurisdiction appealing against the Council's refusal of the DA. 4. The proceedings were listed for a conciliation conference on 27 June 2019 pursuant to s 34 of the Land and Environment Court Act 1979. The conciliation conference was terminated on 27 June 2019. 5. On 6 September 2019, Mr Williams was granted leave by the Court to amend the DA and to rely upon amended plans and documentation in the proceedings. 6. On 9 September 2019, the Council filed its notice of motion seeking determination of a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 ("UCPR"). 7. According to an explanation proffered from the bar table, the Council delayed filing its application for the determination of a separate question because it understood that the amended plans and documentation to be filed consequent upon the s 34 conference could resolve the issue. Upon it becoming apparent that they did not, it filed the motion. The LEP 1. Clause 4.1AA of the LEP contains minimum subdivision lot sizes for community title schemes within specific land use zones. It was agreed that the clause applied to the site and to the DA. 2. Clause 4.1AA of the LEP states as follows: 4.1AA Minimum subdivision lot size for community title schemes (1) The objectives of this clause are as follows: (a) to ensure that land to which this clause applies is not fragmented by subdivisions that would create additional dwelling entitlements. (2) This clause applies to a subdivision (being a subdivision that requires development consent) under the Community Land Development Act 1989 of land in any of the following zones: (a) Zone RU1 Primary Production, (b) Zone RU2 Rural Landscape, (c) Zone RU6 Transition, (d) Zone E2 Environmental Conservation, (e) Zone E3 Environmental Management, (f) Zone E4 Environmental Living, but does not apply to a subdivision by the registration of a strata plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 1989) is not to be less than the minimum size shown on the Lot Size Map in relation to that land. (4) This clause applies despite clause 4.1. 1. Clause 4.6(6) of the LEP provides that a request to contravene the development standard contained in cl 4.1AA cannot be made on land within Zone E3 Environmental Management and Zone RU2 Rural Landscape pursuant to cl 4.6 in circumstances where: (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. 1. Because each of the six lots proposed pursuant to the DA are less than the minimum area specified in cl 4.1AA of the LEP, and also less than 90% of the minimum area specified by the development standard, it was not disputed that the proposed development is prima facie prohibited under cl 4.1AA of the LEP. 2. Mr Williams therefore seeks to rely on cl 5.10(10) of the LEP as a basis for the permissibility of the proposed development. That clause says: (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that:… 1. The Council asserts that the subdivision of land is not a use of land for "any purpose" pursuant to cl 5.10(10) of the LEP (relying on Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 at [26] per Preston J). Further, the proposed heritage conservation works do not establish the purpose of the development. Accordingly, Mr Williams cannot avail himself of cl 5.10(10) of the LEP, and the proposed development is therefore not permitted pursuant to cl 4.1AA of the LEP. 2. By contrast, Mr Williams argues that the subsequent authority in Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121; (2008) 71 NSWLR 306 (at [61]) effectively overrules Wehbe and that the subdivision of the community title is sufficient to constitute "development for any purpose" pursuant to cl 5.10(10) of the LEP, and thus, the proposed development is permissible under cl 4.1AA of that instrument. 3. This gives rise to a neat legal question which is the gravamen of the separate question. Applicable Legal Principles 1. The power to make an order for a separate question to be decided in advance of a final hearing is contained in r 28.2 of the UCPR, which provides that: 28.2 Order for decision The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings. 1. The legal principles applicable to the exercise of that power are well known. They were recently stated by the Court in Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 (at [22]-[29]). 2. To those principles it should be added that the parties' consent to the ordering of a separate question is not determinative (Hunter v Wyong Shire Council [2012] NSWLEC 250 at [2]). The Parties' Evidence 1. The parties relied upon affidavit evidence in support of the application. The Council relied upon an affidavit of Ms Peta Hudson, sworn 6 September 2019, the solicitor for the Council. Mr Williams relied upon an affidavit from his solicitor, Mr Michael Mantei, sworn 23 September 2019. 2. The evidence was to the effect that if the separate question is answered in favour of the Council, this will obviate the need to engage a plethora of experts in the following disciplines to deal with the merit matters raised in the Class 1 appeal: heritage; bush fire; planning; visual; flora and fauna; civil engineering; land contamination; arboriculture; and flooding. This will represent a considerable saving in terms of costs. 3. Furthermore, the parties have engaged counsel on the appeal, including, for Mr Williams, senior counsel. The Separate Question Should Be Ordered 1. Applying the principles above, and having regard to the evidence, it becomes apparent that the separate question should be ordered. The reasons are five-fold: 1. first, the question, if answered in favour of the Council, will dispose of the Class 1 appeal resulting in a considerable saving in costs and time. The hearing of the separate question is likely to take no more than half a day, whereas the appeal is listed for three days (Cavanagh at [31]-[32]); 2. second, no expert evidence and limited documentary evidence will be required to resolve the separate question (Cavanagh at [33]); 3. third, even if the question is answered in favour of Mr Williams, a significant legal issue raised in the Council's Statement of Facts and Contentions will have been dealt with resulting in a saving of time in the Class 1 appeal (Cavanagh at [34]); 4. fourth, the separate question will assist in clarifying the general law, as described earlier in this judgment; and 5. fifth, the parties have assured the Court that the ordering of a separate question will not affect the allocated hearing date. The Court accepts this assurance on the basis that, as was discussed during the hearing of the motion, because of the lateness of the application and the demands on the Court diary, especially towards the end of the year, the parties cannot be guaranteed that they will receive a judgment on the separate question in sufficient time for the parties to avoid the need to prepare for the appeal, including the preparation of expert evidence. While it is likely, therefore, that if the separate question is answered in the Council's favour some costs will be thrown away, as the parties correctly submitted there will nevertheless be a saving in time and cost in not having to proceed with the preparation for, and the hearing of, a three day appeal where counsel, including senior counsel, are briefed to appear. Orders 1. The following orders are therefore appropriate: 1. pursuant to r 28.2 of the UCPR, the following question is to be determined separately from and before any other question in the proceedings: (a) is the proposed development, which is a community title subdivision, "development for any purpose" pursuant to cl 5.10(10) of Shellharbour Local Environmental Plan 2013 ("LEP")? (b) if the answer to question (a) is "no", is the proposed development, being a community title subdivision which proposes lots that are less than the minimum subdivision size shown on the Lot Size Map in relation to the subject land pursuant to cl 4.1AA of the LEP, permissible with consent under the LEP? 1. the separate question is listed for hearing before a judge on 11 November 2019 at 10:00am; 2. the parties are to file an agreed statement of facts, together with any other material upon which they seek to rely for the purpose of determining the separate question, by 18 October 2019; 3. the respondent is to file and serve its submissions on the separate question by 28 October 2019; 4. the applicant is to file and serve his submissions on the separate question by 4 November 2019; 5. liberty to restore on three days' notice; and 6. the exhibits are to be returned. ********** 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: 25 September 2019