Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105

Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105

The Court ordered determination of the separate question because permissibility under cl 4.1B of the Wollondilly Local Environmental Plan 2011 was a threshold issue which, if answered in the Council's favour, would wholly dispose of the Class 1 appeal; the question was clearly defined, required no expert evidence, no credit findings and only limited documentary material, with facts to be agreed; determination before the substantive hearing would avoid potentially substantial wasted expert and legal costs and further the overriding purpose in s 56 of the Civil Procedure Act 2005; the delay in bringing the application was not fatal because the substantive hearing was not imminent and no...

Jurisdiction
Australia
Judgment Date
24 July 2019
Procedural Posture
Class 1 Appeal Against Deemed Refusal of DA 784/2018 / Notice of Motion for Determination of a Separate Question Before the Substantive Hearing
Outcome
Separate question ordered. Consequential timetabling orders made.
Legal Topics
['separate Question' 'development Consent' 'prohibited Development' 'subdivision' 'wollondilly Local Environmental Plan 2011 Cl 4.1 B']
['civil Procedure' 'planning and Environment Law'] ['separate Question' 'development Consent' 'prohibited Development' 'subdivision' 'wollondilly Local Environmental Plan 2011 Cl 4.1 B']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of DA 784/2018 / Notice of Motion for Determination of a Separate Question Before the Substantive Hearing

Legal Issues

  1. 1 ['Whether the question whether the proposed development is prohibited under cl 4.1B of the Wollondilly Local Environmental Plan 2011 should be determined separately from other questions in the proceedings.' 'Whether determination of the separate question would facilitate the just, quick and cheap resolution of the proceedings.']

Ratio Decidendi

The Court ordered determination of the separate question because permissibility under cl 4.1B of the Wollondilly Local Environmental Plan 2011 was a threshold issue which, if answered in the Council's favour, would wholly dispose of the Class 1 appeal; the question was clearly defined, required no expert evidence, no credit findings and only limited documentary material, with facts to be agreed; determination before the substantive hearing would avoid potentially substantial wasted expert and legal costs and further the overriding purpose in s 56 of the Civil Procedure Act 2005; the delay in bringing the application was not fatal because the substantive hearing was not imminent and no...

Court Disposition

Separate question ordered. Consequential timetabling orders made.

Orders

  • ['Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, the following question is to be determined separately from any other question in the proceedings: Whether the proposed development is prohibited under cl 4.1B of the Wollondilly Local Environmental Plan 2011.' 'The parties are to file and serve a...