Williams v Shellharbour City Council [2019] NSWLEC 135

Williams v Shellharbour City Council [2019] NSWLEC 135

The Court ordered the separate question because, as reframed, it was a question of law divorced from the merits, required only agreed facts and limited evidence with no expert evidence, would dispose of the Class 1 appeal if answered in favour of the Council, would save substantial time and costs, would clarify a significant legal issue even if answered in favour of Mr Williams, and was not expected by the parties to affect the allocated final hearing dates.

Jurisdiction
Australia
Judgment Date
25 September 2019
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Notice of Motion for Determination of a Separate Question Before Final Hearing
Outcome
Separate question ordered.
Legal Topics
['separate Question' 'community Title Subdivision' 'minimum Subdivision Lot Size' 'conservation Incentives' 'permissibility With Consent Under Local Environmental Plan']
['environmental Planning Law' 'land and Environment Court Procedure' 'heritage Conservation'] ['separate Question' 'community Title Subdivision' 'minimum Subdivision Lot Size' 'conservation Incentives' 'permissibility With Consent Under Local Environmental Plan']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application / Notice of Motion for Determination of a Separate Question Before Final Hearing

Legal Issues

  1. 1 ['Whether the proposed development, a community title subdivision, is "development for any purpose" pursuant to cl 5.10(10) of Shellharbour Local Environmental Plan 2013.' 'If not, whether the proposed community title subdivision proposing lots less than the minimum subdivision size shown on the Lot Size Map pursuant to cl 4.1AA of Shellharbour Local Environmental Plan 2013 is permissible with consent under the LEP.' 'Whether the Court should order the separate question to be determined before the final hearing.']

Ratio Decidendi

The Court ordered the separate question because, as reframed, it was a question of law divorced from the merits, required only agreed facts and limited evidence with no expert evidence, would dispose of the Class 1 appeal if answered in favour of the Council, would save substantial time and costs, would clarify a significant legal issue even if answered in favour of Mr Williams, and was not expected by the parties to affect the allocated final hearing dates.

Court Disposition

Separate question ordered.

Orders

  • ['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...