Bird v Hawkesbury City Council

HOWARD BIRD Applicant v HAWKESBURY CITY COUNCIL Respondent

This is a notice of motion seeking an order that class 1 proceedings numbered 11009 of 2000 be dismissed. The proceedings were commenced by the applicant against the respondent council's determination to refuse the applicant's development application to use an existing factory building for a brothel.

The development application which is the subject of the class 1 proceedings was said by the council's officer, Mr R J H Montgomery, to be identical in terms to a development application which was the subject of proceedings in this Court, numbered 10989 of 1999 ("the first development application"). This is conceded by Mr Newport, appearing for the applicant.

The previous proceedings went to hearing and were the subject of a judgment by Commissioner Hoffman delivered on 31 May 2000. In par 35 of his judgment, the Commissioner referred to draft Local Environmental Plan 110 ("the draft LEP"). He noted that the draft LEP had, as one of its specific purposes, to make brothels a prohibited use in industrial zones and to restrict such use to commercial zones. In par 40 of his judgment the Commissioner took into account the draft LEP and said: To permit the brothel in the circumstance of that clear intent of the statutory authority, would in the Court's opinion, create a situation where a soon-to-be-non-conforming existing use is inserted in a zone, where to date, all approved uses are in conformity with that zoning.

He determined that weight should be given to the imminence and certainty of the draft LEP and that development consent should be refused.

In this context the council now seeks the dismissal of these current class 1 proceedings. The council relies on the decision of the Court of Appeal in Russo v Kogarah Municipal Council (1999) 105 LGERA 290. In that case the Court of Appeal held that it was an abuse of the Court's processes that identical applications be considered and re-agitated. At p 292 Stein JA said the following: The current application, being more or less precisely the same application as the first and the second, both of which were appealed and dismissed by the Court, is an abuse of process of the Land and Environment Court, and ought not be permitted to proceed. At p 293 Davies AJA said as follows: [I]t is an abuse of process for an applicant to bring repeated applications to a court, such as the Land and Environment Court, seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions. He went on to say: If there has been no significant change in circumstances, the new application ought not to be brought. In the face of that pronouncement of the law, Mr Newport submitted that in this case the facts and circumstances have changed.

There was in evidence a number of documents comprising correspondence between the Department of Urban Affairs and Planning ("DUAP"), the council and the Minister's office in relation to the making of the draft LEP and, in particular, in relation to the question of prohibiting certain activities as rural industries.

Part of that correspondence contains a memorandum dated 19 July 2000 from Annabel Teague, an officer of DUAP, to Michael Young, a person employed in the Minister's office. Under the heading "brothels" in that document Ms Teague said: I understand the Minister's office is concerned that the draft plan will prohibit brothels in the Local Government Area of Hawkesbury. I am aware that Malcolm McDonald and Co have written to the Minister because of concerns that the draft plan will restrict brothels to commercial zones, and their client believes it is not possible to comply with the Development Control Plan for Brothels in commercial zone locations. In the next paragraph Ms Teague stated: It is not considered necessary to change the draft plans provisions as they relate to brothels.

There is also in evidence a letter sent by an officer of DUAP to the council asking, amongst other things, for advice of any litigation in relation to the refusal of development applications where the making of the draft LEP would affect the outcome of litigation, for example, the case brought by Mr Bird (which, I interpose, is the current litigation) and for advice as to the council's views on inserting savings and transitional provisions in respect of Mr Bird's development application or any other development application.

In response, the council wrote to the officer of DUAP on 28 November 2000 stating: In response to your question concerning savings and transitional provisions, the Council does not wish to include any savings or transitional provisions with respect to the application of Mr Bird.

It enclosed a s 69 certificate signed under delegated authority by the general manager of the council seeking the making of a local environmental plan in accordance with the draft LEP which would not contain savings and transitional provisions.

Mr Newport submitted that the circumstances have changed because the correspondence I have referred to indicates a concern by the Minister about a savings and transitional provision and that it is a possibility that the Minister will, in the exercise of his powers under s 70 of the Environment Planning and Assessment Act 1979 ("the EP&A Act"), make the local environmental plan with the insertion of a savings and transitional provision.

The Minister's powers are set out in s 70 of the EP&A Act. The Minister may make a local environmental plan in accordance with the draft or he may, as set out in s (1)(a)(ii), make the plan in accordance with the draft with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for state or regional environmental planning.

In Mr Newport's submission, it is a possibility that the Minister may form the opinion that the insertion of a savings and transitional provision is in the public interest and is a matter of significance for state or regional environmental planning.

Mr Newport's case does not go any higher than I have just outlined. It seems to me that it must fail. The circumstances are that there is an identical development application the subject of the current appeal. The circumstances are that there is today in existence a draft local environmental plan which is materially, so far as concerns this development application, identical to the one considered by Commissioner Hoffman in relation to the first development application.

The only circumstance that can be said to have changed is to be derived from the document that I have referred to dated 19 July 2000, being the memorandum from Ms Teague to Mr Young. I do not think that I can infer from that document any particular concern of the Minister about savings and transitional provisions. It sets out Ms Teague's understanding that the Minister's office was concerned that the draft LEP would prohibit brothels in the local government area of Hawkesbury. She notes the representations made by solicitors for Mr Bird, that the draft LEP will restrict brothels to commercial zones and that their client, Mr Bird, believes it is not possible to comply with the development control plan for brothels in commercial zone locations.

In my opinion that part of the memorandum does not evidence a concern on the part of the Minister which, by any stretch of the imagination, is likely to, first, persuade him to insert a savings and transitional provision when both his own Department and the council have said that it ought not to be inserted and secondly, persuade him to the opinion that the insertion of such a provision will be of significance for state or regional environmental planning.

My finding of fact in that situation means that the circumstances in which the development application which is the subject of the current proceedings is made is precisely the same as the circumstances which pertained in the first proceedings disposed of by the determination of Commissioner Hoffman.

There are no changed circumstances such as would amount to, quoting Davies AJA "a significant change in circumstances" and quoting Stein JA "the current application [is] more or less precisely the same application as the first … which [was] appealed and dismissed by [this] Court".

My conclusion therefore is that the current proceedings are an abuse of process of this Court and they ought not to be permitted to proceed. Accordingly, I am prepared to make the orders sought in the notice of motion.

My formal order is that the proceedings are dismissed. These are class 1 proceedings and I do not propose to make any order as to costs, but I will hear from you.

LEGGAT: I am instructed to expressly make no application for costs.

HER HONOUR: I make no order as to costs. The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.