Tricon Services Group Pty Ltd v Manly Council [2010] NSWLEC 256

Tricon Services Group Pty Ltd v Manly Council [2010] NSWLEC 256

Although determination of the separate question would not dispose of the whole appeal, the issue raised by Contention 7 was enduring, affected the current and any future redevelopment of the site, would impact other issues in the proceedings, and if resolved favourably to the applicant would mean Contention 7 would not be advanced. It was therefore appropriate to order separate determination under UCPR 28.2 of questions concerning service of a notice under s 262(3) of the Local Government Act 1919 and whether a road widening order under s 25 of the Roads Act 1993 applies.

Jurisdiction
Australia
Judgment Date
09 December 2010
Procedural Posture
Class 1 Development Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Application Under Uniform Civil Procedure Rule 28.2 for Separate Determination of Questions Before the Appeal Was Fixed for Hearing
Outcome
Application for separate determination granted; proceedings stood over for directions and fixing a hearing date for the separate question.
Legal Topics
['separate Question for Determination' 'development Consent Appeal' 'road Realignment' 'road Widening' 'validity of Notice Under S 262(3) of the Local Government Act 1919']
['planning and Environment' 'practice and Procedure' 'local Government' 'roads'] ['separate Question for Determination' 'development Consent Appeal' 'road Realignment' 'road Widening' 'validity of Notice Under S 262(3) of the Local Government Act 1919']

Case Brief

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Procedural Posture

Class 1 Development Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Application Under Uniform Civil Procedure Rule 28.2 for Separate Determination of Questions Before the Appeal Was Fixed for Hearing

Legal Issues

  1. 1 ['Whether questions concerning the legal efficacy of steps taken by the Council between 1961 and 1993 to realign North Steyne should be determined separately under Uniform Civil Procedure Rule 28.2.' 'Whether, in the circumstances and events that had happened, a notice under s 262(3) of the Local Government Act 1919 (now repealed) had been served on the owner of the subject land as at the date of repeal of that Act.' 'Whether, in the circumstances and events that had happened, a road widening order within the meaning of s 25 of the Roads Act 1993 applies to the subject land.']

Ratio Decidendi

Although determination of the separate question would not dispose of the whole appeal, the issue raised by Contention 7 was enduring, affected the current and any future redevelopment of the site, would impact other issues in the proceedings, and if resolved favourably to the applicant would mean Contention 7 would not be advanced. It was therefore appropriate to order separate determination under UCPR 28.2 of questions concerning service of a notice under s 262(3) of the Local Government Act 1919 and whether a road widening order under s 25 of the Roads Act 1993 applies.

Court Disposition

Application for separate determination granted; proceedings stood over for directions and fixing a hearing date for the separate question.

Orders

  • ['Order pursuant to Uniform Civil Procedure Rule 28.2 that the following question be determined separately from any other question or issue raised in the proceedings, namely: a. In the circumstances and events that have happened, had a notice under s 262(3) of the Local Government Act 1919 (now repealed) been served...