Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 147

Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 147

The Court declined to determine the proposed separate question because the characterisation of the development as a shop or neighbourhood shop was a mixed question of fact and law, contentions A, B and C were interrelated, agreement on facts suitable for separate determination would be difficult, and town planning and retail evidence was likely to be relevant; therefore the utility, economy and fairness of a separate determination were not established.

Jurisdiction
Australia
Judgment Date
07 August 2014
Procedural Posture
Class 1 Proceedings / Notice of Motion for Determination of a Separate Question as a Preliminary Matter
Outcome
Determination of separate question not ordered.
Legal Topics
['separate Question' 'development Application' 'characterisation of Development as Shop or Neighbourhood Shop' 'shellharbour Local Environmental Plan 2013']
['planning and Environment Law' 'civil Procedure'] ['separate Question' 'development Application' 'characterisation of Development as Shop or Neighbourhood Shop' 'shellharbour Local Environmental Plan 2013']

Case Brief

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Procedural Posture

Class 1 Proceedings / Notice of Motion for Determination of a Separate Question as a Preliminary Matter

Legal Issues

  1. 1 ['Whether the Court should order that the categorisation of the development as a shop or neighbourhood shop under the Shellharbour Local Environmental Plan 2013 be determined as a separate preliminary question.' 'Whether determination of the proposed separate question would save time and expense and be appropriate given the factual and legal issues in the proceedings.']

Ratio Decidendi

The Court declined to determine the proposed separate question because the characterisation of the development as a shop or neighbourhood shop was a mixed question of fact and law, contentions A, B and C were interrelated, agreement on facts suitable for separate determination would be difficult, and town planning and retail evidence was likely to be relevant; therefore the utility, economy and fairness of a separate determination were not established.

Court Disposition

Determination of separate question not ordered.

Orders

  • ['Order 1 in the Notice of Motion dated 31 July 2014 not made.' 'Matter stood over to Registrar for further directions on 12 August 2014 unless parties provide agreed short minutes of order by e-court.']