Dunlop v Coffs Harbour City Council

CASES CITED: General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125

APPLICANT: G A Jockel (agent) SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: J D Mulder (solicitor) SOLICITORS: MBT Lawyers

JUDGMENT:

• 5 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JAMES HENRY DUNLOP v COFFS HARBOUR CITY COUNCIL [2006] NSWLEC 663

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is the hearing of a motion by the respondent, Coffs Harbour City Council, for the summary dismissal of an appeal brought by the applicant, Mr James Henry Dunlop, against the council's refusal of a development application for the subdivision of land at No. 590 Coramba Road, Karangi, being lot 22 in deposited plan 853824. 2 The council also seeks, in the alternative, an order that the applicant is not entitled to rely upon certain reports, or a new plan of subdivision. 3 The power to order summary dismissal is governed by Pt 13, r 5, of the Supreme Court Rules 1970 - see also Pt 13, r 13.4 of the Uniform Civil Procedure Rules 2005 - and which rule applies in this Court by dint of Pt 6, r 1 of the Land and Environment Court Rules 1996. The rule enables the Court to order that the proceedings be dismissed generally where: ( a) No reasonable cause of action is disclosed; (b) The proceedings are frivolous or vexatious; or (c) The proceedings are an abuse of process of the Court. 4 The principles which govern the application for summary dismissal are authoritatively explained by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Those principles may be briefly stated as follows: the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case; the applicant or plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind she or he brings unless the lack of a cause of action - if that be ground upon which the court is invited to exercise its power of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed as: a) so obviously untenable that it cannot possibly succeed; b) manifestly groundless; c) so manifestly faulty that it does not admit of argument; d) it discloses a case which the Court is satisfied cannot succeed; e) under no possibility can there be a good cause of action; or f) to allow the action to stand would involve undue expense. 5 The Chief Justice also referred to the need for exceptional caution in exercising the power whether it be inherent or under the statutory rule. His Honour on (at 129-130) to quote Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR at 91: ... once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. 6 Barwick CJ further said (at 130) that: Great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. …. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

7 With those principles in mind I now turn to the relevant facts of the present case. The applicant made a development application on 23 December 2003 for the subdivision of a parcel of land into three allotments. The land is subject to the provisions of the City of Coffs Harbour Local Environmental Plan 2000 ("Coffs Harbour LEP"). Clause 18(2) of that instrument provides for a minimum allotment size of 40 hectares. The proposed subdivision is for three lots, two of which will have an area of four hectares, and one lot of 17.23 hectares. Accordingly, the development application was accompanied by an objection to the development standard in cl 18(2) under State Environmental Planning Policy No. 1 - Development Standards ("SEPP No. 1"). 8 On 14 January 2005 the council sought the concurrence of the Department of Infrastructure, Planning and Natural Resources to vary cl 18(2) of the Coffs Harbour LEP. On 25 February 2005 the Department advised that concurrence was not granted. By a notice of determination dated 26 February 2005 the council refused the development application for a number of reasons, one of which was that the proposed subdivision did not meet the minimum area requirements of the Coffs Harbour LEP, and the objection lodged pursuant to SEPP No. 1 to the development standard in cl 18(2) was not well founded. 9 On 18 February 2005 the present proceedings, being an appeal against the council's determination, were commenced. In its statement of issues the council has raised a number of grounds for opposing the appeal. The issues include not only the question of the minimum allotment size, but also an alleged inconsistency with the relevant bushfire protection controls inter alia. The council submits that the objection that has been lodged under SEPP No. 1 does not comply with that Policy. It is said that it does not disclose a proper basis for allowing the objection under SEPP No. 1 as it does not address the standard but, on the contrary, proposes an alternate standard. 10 The SEPP No. 1 objection in the present case, under the subheading "Strict compliance with the standard is unreasonable and unnecessary" states: The author considers that the development standards have not been developed to assess an application for sub-division for conservation purposes, and therefore the development standards are inappropriate and cannot be used by council to assess the current application. 11 That, in my opinion, raises an arguable case for the applicant, namely that the current development standard is unreasonable and unnecessary in the circumstances. It cannot be said, in my opinion, that the applicant's case is so clearly untenable that it cannot possibly succeed. The objection clearly raises merit considerations which ought to go to the appointed tribunal. 12 The council next submits that there is now a changed proposal from that which was originally made. This is said to be apparent from two reports that were furnished in December 2005 - one dated 4 November 2005 from Mr E Chiswell of City and Country Enviroservices, and one dated 30 November 2006 from Total Gardens Lifestyle Design Centre - and a new plan of subdivision, dated 30 November 2005. The question is whether what is now proposed is substantially different from the original application. Notwithstanding the content of the two reports and the new plan of subdivision the proposal remains a proposed subdivision of land into three lots: two of four hectares each and one of 17.23 hectares. It is substantially the same development as the development described in the original application to the council and therefore the court may deal with it in the present proceedings. 13 The council next submits that there has been a want of prosecution on the part of the applicant. I am informed from the bar table that there have been thirteen call-overs, of which apparently half have been the result of agreement between the parties. Mr G A Jockel, the agent appearing for the applicant, informs me that all the applicant's evidence is now on; that is, it has been filed and served, and it would seem that, at least from the applicant's point of view, the case is now ready to be set down for hearing. Again, the Court must proceed with caution in dismissing a matter for want of prosecution. In a case like this where I am told by the applicant that the case is ready for hearing as far as the applicant is concerned, I am not prepared to dismiss the proceedings on that ground. 14 It follows that the formal order of the Court will be:

1. The respondent's notice of motion, dated 3 February 2006, is dismissed.
2. I direct that the applicant be permitted to rely upon the report from Mr E Chiswell of City and Country Enviroservices dated 4 November 2005, the report from Total Gardens Lifestyle Design Centre dated 30 November 2005, and the amended plan of subdivision from Blair Lanskey Surveys dated 30 November 2005.
3. I grant leave to the parties to approach the Registrar now to obtain a hearing date. I hereby certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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