Kenoss Pty Ltd v Palerang Council [2012] NSWLEC 179

Kenoss Pty Ltd v Palerang Council [2012] NSWLEC 179

The proposed construction question should be determined as a separate and preliminary question because, if decided against the applicant, it would dispose of the appeal and avoid very substantial costs that would otherwise be incurred.

Jurisdiction
Australia
Judgment Date
30 July 2012
Procedural Posture
Class 1 Appeal Against Refusal of Development Consent for a Subdivision / Applicant's Motion for Determination of a Separate and Preliminary Question
Outcome
Separate and preliminary question ordered.
Legal Topics
['development Consent for Subdivision' 'construction of Cl 21(b) of the Yarrowlumla Local Environmental Plan 2002' 'floodplain Land' 'separate and Preliminary Question']
['planning and Environment Law' 'practice and Procedure'] ['development Consent for Subdivision' 'construction of Cl 21(b) of the Yarrowlumla Local Environmental Plan 2002' 'floodplain Land' 'separate and Preliminary Question']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Consent for a Subdivision / Applicant's Motion for Determination of a Separate and Preliminary Question

Legal Issues

  1. 1 ['Whether a separate and preliminary question should be ordered under r 28.2 of the Uniform Civil Procedure Rules 2005.' 'On the proper construction of cl 21(b) of the Yarrowlumla Local Environmental Plan 2002, whether the relevant condition precedent is satisfied only by asking whether the subdivision takes in floodplain land, or also requires asking whether that floodplain land is an unsuitable area.']

Ratio Decidendi

The proposed construction question should be determined as a separate and preliminary question because, if decided against the applicant, it would dispose of the appeal and avoid very substantial costs that would otherwise be incurred.

Court Disposition

Separate and preliminary question ordered.

Orders

  • ['The question set out at [2] is to be determined as a separate question before any other question in the proceedings.' 'The matter is fixed for hearing on 4 September 2012.' 'The parties are to file an agreed statement of facts and bundle of documents duly paginated and indexed by 13 August 2012.' "The applicant's...