CK Design Pty Ltd v Penrith City Council [2022] NSWLEC 82

CK Design Pty Ltd v Penrith City Council [2022] NSWLEC 82

The separate question should be ordered because it raised an arguable statutory construction issue anterior to the factual and evidentiary issues in the Class 1 appeal, could be determined on agreed facts without further evidence, would substantially narrow the controversy by identifying whether the Housing SEPP or ARH SEPP applied, would save substantial expert evidence, time and costs, would preserve the utility of the s 34 conciliation conference and public participation, and would promote the just, quick and cheap resolution of the proceedings under s 56 of the Civil Procedure Act 2005.

Jurisdiction
Australia
Judgment Date
07 July 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Notice of Motion for Order That a Separate Question Be Heard and Determined Prior to the Final Hearing
Outcome
Separate question ordered and consequential timetabling directions made.
Legal Topics
['separate Question' 'savings and Transitional Provisions' 'development Application' 'boarding House' 'co Living Housing' 'class 1 Appeal' 'section 34 Conciliation Conference']
['environmental Planning and Assessment' 'civil Procedure'] ['separate Question' 'savings and Transitional Provisions' 'development Application' 'boarding House' 'co Living Housing' 'class 1 Appeal' 'section 34 Conciliation Conference']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Notice of Motion for Order That a Separate Question Be Heard and Determined Prior to the Final Hearing

Legal Issues

  1. 1 ['Whether a separate question should be determined separately and in advance of the final hearing.' 'Whether development application DA21/0225 was made, but not yet determined, on or before the commencement date of State Environmental Planning Policy (Housing) 2021.' 'If development application DA21/0225 was made, but not yet determined, on or before the commencement date of State Environmental Planning Policy (Housing) 2021, whether State Environmental Planning Policy (Affordable Rental Housing) 2009, as in force on 25 November 2021, applies.']

Ratio Decidendi

The separate question should be ordered because it raised an arguable statutory construction issue anterior to the factual and evidentiary issues in the Class 1 appeal, could be determined on agreed facts without further evidence, would substantially narrow the controversy by identifying whether the Housing SEPP or ARH SEPP applied, would save substantial expert evidence, time and costs, would preserve the utility of the s 34 conciliation conference and public participation, and would promote the just, quick and cheap resolution of the proceedings under s 56 of the Civil Procedure Act 2005.

Court Disposition

Separate question ordered and consequential timetabling directions made.

Orders

  • ["Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, leave is granted for the following separate question of law to be determined by the Court: (a) whether development application DA21/0225 was made, but not yet determined, on or before the commencement date of State Environmental Planning Policy...