Land and Environment Court Allows Preliminary Determination on Development Prohibition

The court allowed the preliminary determination of whether a proposed development for manufacturing and distributing dog biscuits is an industry prohibited in the Mixed Agricultural Zone under the Hawkesbury Local Environmental Plan 1989. The court considered the issue could be decided separately and would resolve the case if decided in the respondent's favour.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [COMPANY] v Hawkesbury City Council [2011] NSWLEC 18 Hearing dates: 16 February 2011 Decision date: 16 February 2011 Before: Pain J Decision: Orders as sought in Respondent's Notice of Motion filed 27 January 2011 Catchwords: Procedure - whether leave should be granted for preliminary issue to be determined in Class 1 proceedings Legislation Cited: Hawkesbury Local Environmental Plan 1989 Supreme Court Rules 1970 Pt 31 r 2 Uniform Civil Procedure Rules 2005 r 28.2 Cases Cited: Metropolitan Local Aboriginal Land Council v [NAME] the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 [NAME] v Goulburn Mulwaree Council and Ors [2010] NSWLEC 47 [COMPANY] v [NAME] of Strata Plan No 20823 [2008] NSWLEC 205 Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1 [NAME] v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 Category: Separate question Parties: [COMPANY] (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: [redacted] Solicitors: [redacted] [COMPANY] (Respondent) File Number(s): 10986 of 2010

EX TEMPORE Judgment 1The Respondent, Hawkesbury City Council, has filed a Notice of Motion on 27 January 2011 seeking an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (the UCPR) for the preliminary determination of the following issue: The proposed development is properly characterised as development for the purpose of an "industry" and is therefore prohibited within the Mixed Agricultural Zone under the provisions of Hawkesbury Local Environment Plan 1989. 2The issue raised is essentially an issue concerning permissibility of development under the relevant local environmental plan. 3Rule 28.2 provides: 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. 4The supporting affidavit of [NAME], the Respondent's solicitor, sworn 25 January 2011 stated that these proceedings relate to an appeal against the Respondent's refusal of a development application seeking consent for the use of existing sheds on land at Ebenezer for the manufacture and distribution of dog biscuits. The Respondent contends that the proposed development is characterised as development for the purpose of an "industry" and is prohibited within the Mixed Agricultural Zone under the Hawkesbury Local Environmental Plan 1989 (the LEP) which applies to the subject land. The Respondent seeks leave to have the issue identified in its Statement of Facts and Contentions, filed on 25 January 2011, heard separately. The issue is genuinely capable of separate determination. If determined in the Respondent's favour, it would be determinative of the appeal and render unnecessary any hearing of the merits of the development. A separate determination would achieve the just, quick and less costly resolution of the proceedings. 5The Applicant supports the determination of the preliminary question. To the extent the question is one of mixed fact and law the parties can agree a statement of facts for the purpose of argument on the question of law raised and agree that resolution of the question would be determinative of the proceedings if resolved in the Respondent's favour. Argument is estimated to take a half to one day of hearing time. 6The merit issues identified in the Statement of Facts and Contentions are odour and noise impacts. These are separate from the preliminary issue the subject of the motion. 7The relevant principles were identified by Jagot J in Metropolitan Local Aboriginal Land Council v [NAME] the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 at [12], her Honour also applied these in [NAME] v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 when considering applications for separate determination of questions of law, then under Pt 31 r 2 of the Supreme Court Rules 1970. In [NAME] her Honour referred at [7] - [10] to further decisions in the Federal Court and the High Court in Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1 about the need for caution in adopting such an approach. These principles were applied by Craig J in [NAME] v Goulburn Mulwaree Council and Ors [2010] NSWLEC 47 at [11] - [13] when considering an application under r 28.2 of the UCPR for the separate determination of a question of law in Class 1 and Class 4 proceedings. I will not set out the principles in the parts of the judgments referred in the interests of brevity in this interlocutory motion on a matter of procedure but apply them in my consideration of this matter.

Finding 8The necessary issues of fact can be agreed by the parties for the purposes of determining the separate question of law raised in the Notice of Motion, the question posed is clearly identified and is discrete from the merit issues raised in the Respondent's statement of facts and contentions, and the preliminary question is potentially determinative of the proceedings and can be dealt with at a short hearing. If the determination of the preliminary question results in the matter being resolved there will be substantial savings in preparation and hearing costs on the merit issues. The cautionary matters identified by the High Court in Tepko at [70] where [NAME] stated that single issue trials are appropriate only if their utility, economy and fairness to the parties is beyond question, applied by Jagot J in [COMPANY] v [NAME] of Strata Plan No 20823 [2008] NSWLEC 205 at [11] as well as [NAME] at [8] do not arise in these circumstances. 9I consider I should exercise the discretion I have under r 28.2 of the UCPR to make the order sought in the Respondent's 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: 02 March 2011