Hanna v Council of the City of Ryde

Judgment 1HIS HONOUR : John and Sarah Hanna, the applicants, own residential land known as 9 Clive Road, Eastwood ( the land ). Erected on that land is a substantial older style residence ( the building ) that has been altered and extended. Subsequent to completion of approved alterations and extensions the building was converted, apparently without approval, so as to render it capable of occupation as two separate dwellings. The attempts by Mr and Mrs Hanna to have their converted building approved for use as two dwellings lies at the heart of the application with which I am concerned. 2By development application lodged with the City of Ryde Council ( the Council ) in April 2010, Mr and Mrs Hanna sought development consent to use the building as "an affordable housing dual occupancy". The statement of environmental effects accompanying the development application indicated that their application was made in reliance upon the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 ( the Affordable Housing SEPP ). That application was refused by the Council on 20 January 2011. It was that refusal which founded the appeal lodged with this Court on 24 February 2011 pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ( the Act ). 3By notice of motion dated 15 March 2011, the Council seeks an order that the appeal by Mr and Mrs Hanna be dismissed. It does so in reliance upon Uniform Civil Procedure Rules ( UCPR ) 13.4(1)(c), claiming that the appeal involves an abuse of the process of the Court. 4The Council's application for dismissal is founded in the fact that the present appeal represents the third attempt by Mr and Mrs Hanna to obtain development consent for the use of their dwelling as a dual occupancy. Each of the previous two attempts have been refused by the Council and appeals to this Court following each refusal have resulted in each appeal being dismissed. Thus, so it is argued, this third attempt to agitate the same issue or issues previously determined adversely to Mr and Mrs Hanna involves the use of the Court's procedures having a propensity to bring the administration of justice into disrepute ( Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 286). 5In February 2008, Mr and Mrs Hanna through their planning consultant, Mr K Willis, sought development consent from the Council to use the building "for dual occupancy". The application was refused by the Council. As a consequence, an appeal was brought to the Court pursuant to s 97 of the Act. 6On 27 March 2009 Commissioner Brown dismissed that appeal ( Willis v City of Ryde Council [2009] NSWLEC 1103). Commissioner Brown determined that the application was permissible on the basis that it involved a "duplex building" within the meaning of the Ryde Planning Scheme Ordinance but determined that the appeal should fail because of inadequate provision of on-site car parking and the lack of appropriate open space to serve two dwellings. As to the latter he said (at [19]): "19 The lack of useful outdoor spaces for liveability, the inability to readily access private open space and the unsuitability of using the front set back area for private open space is a sufficient reason in itself to refuse the development application." 7In an endeavour to meet the deficiencies of their development proposal, as identified in the judgment of Commissioner Brown, Mr and Mrs Hanna lodged a further development application with the Council in August 2009. That application proposed the use of the building "as duplex". It also proposed demolition of existing out-buildings erected on the land and in their place the erection, in the rear yard, of a double carport. It also proposed the erection of fencing so as to differentiate the areas of private open space to be allocated to each dwelling. 8This second development application was refused by the Council and again Mr and Mrs Hanna exercised their right under s 97 of the Act to appeal to the Court. This second application was refused by Commissioner Hussey on 7 May 2010 ( Hanna v Council of the City of Ryde [2010] NSWLEC 1103). 9In his judgment, Commissioner Hussey focussed on three issues that were directed to drainage, parking provision and private open space. Each issue was determined adversely to Mr and Mrs Hanna. The drainage issue turned upon the absence of a drainage concept plan where one was required by the Council's development control plan. The parking issue turned upon the effectiveness of the access driveway to the carport in providing suitable passage for two vehicles and the impact which proper driveway provision would have upon the presentation of the property to the street. 10The provision of private open space was considered to be inadequate, having regard to the designated distribution of the open space, separated by carport and driveway. The proposed provision of two separate areas of open space for one of the two units was also found wanting. The general criticisms directed to the provision of open space contained in the earlier judgment of Commissioner Brown was repeated, with [19] of that judgment being cited with approval. 11By reason of the respective decisions of Commissioners Brown and Hussey refusing development applications for dual occupancy on the land, the Council submits that the present proceedings are an abuse of the process of the Court. It founds its submission upon the judgment of the Court of Appeal in Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290. 12In Russo the appellant had made three successive development applications seeking consent for the same development on the same land. Each application had been refused by the respondent council. In response to each refusal, the applicant had appealed to this Court. Each of the first two appeals were dismissed following upon a review of the merits of each application. When the third appeal was brought, the respondent council sought to have the proceedings dismissed on the principles of res judicata. That application was successful. On appeal to the Court of Appeal, the decision of this Court was upheld, albeit on the basis that the third proceeding was an abuse of process. 13When dismissing the appeal in Russo , Stein JA (Meagher JA agreeing) said (at [9]): "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." 14To similar effect were the observations of Davies AJA where his Honour said (at [14] - [15]): "14 Nevertheless, it 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. 15 The application of this principle is not precluded by the making of some minor changes to a town planning application or by reliance upon an argument or arguments which could have been put [but] were not previously put. If there has been no significant change in circumstances, the new application ought not to be brought. Otherwise, the application will appear to be a collateral attack upon the prior decision or decisions of the Court." 15The Council places particular reliance upon the last passage that I have quoted from the judgment of Davies AJA in Russo. It submits that the present application is tantamount to a collateral attack upon the findings of Commissioners Brown and Hussey upon the adequacy of the private open space provision for a dual occupancy upon the subject land. 16There is an important qualification identified in the quoted passage from the judgment of Davies AJA that needs to be noticed. It is that in the context of a new and subsequent application there has not been any significant or material change in circumstances between the previous and present applications before the Court. The absence of any material change in circumstances or factors material to the reasons for dismissing an earlier application was the basis upon which Biscoe J dismissed a second appeal in Edwards v The Hills Shire Council [2009] NSWLEC 187 at [12] - [13]. 17It is accepted by the Council that it bears the onus of establishing that the present appeal is an abuse of process. That onus is a "heavy one" ( Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529). I am not satisfied, in the circumstances of this case, that the Council has satisfied that onus. 18In the present case, the Council contends that there has been no material change in circumstances as between the earlier proceedings determined respectively by Commissioners Brown and Hussey and the present application. All involve appeals pursuant to s 97 of the Act. All involve the use of the building as a duplex building or dual occupancy. Furthermore, both of the earlier proceedings involved a determination that the provision of private open space was inadequate to meet the requirements of the applicable development control plan. The provision and disposition of private open space for each of the two proposed dwellings is again a principal issue in the present appeal. 19Notwithstanding these similarities, there are a number of important differences that need to be noticed. First, the proposed open space has been reconfigured so that the open space intended for each dwelling is differently located from that considered in the previous applications, with the area for each dwelling allocated so that it is more readily accessible and proximate to the dwelling in conjunction with which it is intended to be used. It is true that part of the open space for one of the dwellings is allocated to the front of the building, a matter criticised in the previous judgments. However, a more substantial area of private open space for that dwelling is now located to its side and rear. In so saying, I am not expressing any view as to the merits of this relocated space but simply to identify a difference from that previously considered. 20A further difference relates to the provision of car parking. The provision of a double carport and additional driveway contemplated by the second of the three applications made by Mr and Mrs Hanna is no longer intended. Rather, it is intended only to provide one car parking space in the existing single garage located on the subject land. The reason for and relevance of this fact in addressing the present application will shortly be made apparent. 21Differences in the planning regime also need to be noticed. The previous two appeals have been determined on the basis that the principal planning instrument was the Ryde Planning Scheme Ordinance and Ryde Development Control Plan 2006 ( DCP 2006 ). It was DCP 2006 that contained requirements pertaining to open space and which Commissioners Brown and Hussey had addressed in their respective judgments. 22Ryde Local Environmental Plan 2010 ( the LEP ) is now the applicable local environmental plan pertaining to development upon the land. However, there is a savings provision in that instrument for development applications made prior to its commencement. The development application that lies behind the present appeal is one such application. As the relevant clause (cl 1.8A) requires, the application must be determined as if the LEP had not commenced. This has the consequence that regard must be had both to the provisions of the Ryde Planning Scheme Ordinance and to the LEP, as if it remained a draft instrument (s 79C(1)(a)(ii) of the Act). It is not suggested that there is a material difference between the requirements of these two planning instruments as they relate to the development application presently before the Court. 23DCP 2006 has, since the determination of the second development application by Commissioner Hussey, been repealed and replaced by City of Ryde Development Control Plan 2010 ( DCP 2010 ). Once again, it is not suggested that the provisions of DCP 2010 are materially different from those contained in DCP 2006 as each relate to the provision of private open space for new development. 24However, what is different is the making of the present development application as one invoking the provisions of the Affordable Housing SEPP. Its provisions prevail over any inconsistent provision of another planning instrument (cl 8) which I take to include any inconsistent provision of a development control plan made under another environmental planning instrument. 25There are provisions of the Affordable Housing SEPP that differ from any provision in either the Ryde Planning Scheme Ordinance , the LEP or DCP 2010. Those provisions include the identification of matters that cannot be relied upon by a consent authority to refuse a development application. By way of example, cl 14(2) provides that a consent authority must not refuse consent if - "at least 0.5 car spaces are provided for each dwelling, ... " [sic]. Given that the current proposal involves only two dwellings, the provision of a single car space in the existing garage would mean that the parking provision could not be relied upon to found refusal. This provision no doubt informed the framing of the present development application deleting the carport and associated works from the application refused by Commissioner Hussey. 26A consequence of the removal of the large carport and associated driveway from the present proposal and reliance upon the existing single garage is that a greater area of private open space for both dwellings than was provided in either the previous two development applications is now available. So much is acknowledged in the evidence of the Council's town planner, read for the purpose of addressing the present notice of motion. Given that the adequacy of open space and its disposition on site was a matter reflected upon adversely in the earlier judgments, this change is material. 27Also of relevance is cl 15 of the Affordable Housing SEPP. It requires consideration of Seniors Living Policy: Urban Design Guidelines for Infill Development . The necessity to consider those guidelines is peculiar to an application made under the State Policy. 28There is a further matter to be noticed in relation to the materiality of change between the present application and those previously considered by the Court. Shortly prior to the hearing of the second application, ultimately determined by Commissioner Hussey, Mr and Mrs Hanna applied to the Court to amend their application pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000. The amendment then sought was to bring their application within the Affordable Housing SEPP. In substance they sought to make those changes reflected in their present application. The amendment then sought by Mr and Mrs Hanna was opposed by the Council. 29On 23 April 2010 Acting Registrar Gray (as she then was) refused leave to Mr and Mrs Hanna to rely upon the amended application then proposed by them ( Hanna v Council of the City of Ryde [2010] NSWCLEC 1094). In her judgment the Acting Registrar recorded (at [6]) the submission then made on behalf of the Council that by reason of the proposed reliance upon the Affordable Housing SEPP, the application "is subject to a new assessment regime" beyond that requiring consideration under the Ryde Planning Scheme Ordinance (and presumably the relevant development control plan). The Acting Registrar acceded to this submission. She identified the affordable housing proposal as "a new use of the premises" from that previously considered (at [11]) and that the changed reliance upon that State Policy "results in a new assessment regime applying to the proposal" (at [12]). 30I respectfully agree with the Acting Registrar's observations. The making of the application in reliance upon or by invoking the Affordable Housing SEPP equally reflects a material difference between the two applications previously considered by the Court and the present application. 31It seems to me that this is not a case in which the differences between the present application and those previously determined by the Court are a "mere camouflage" ( Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 at [27]). Rather, the changes that I have described both in site utilisation and planning regime under the Affordable Housing SEPP are changes of a material kind. Such changes do not permit the application of the principles supporting the dismissal of proceedings as an abuse of process. 32These principles were recently discussed by the Chief Judge in Nikolaidas v Pittwater Council [2009] NSWLEC 227; (2009) 171 LGERA 104. There, his Honour was required to consider an application for dismissal of an appeal brought pursuant to s 97 of the Act when an application for the same development had previously been refused by the Court. That refusal had been made in an appeal brought to the Court pursuant to s 96(6) of the Act. In dismissing the motion of the council in that case, his Honour said (at [27]): " ... the administration of justice in the context of merit review appeals involves the Court making the correct or preferable decision on the facts and law that apply at the time of determining the appeal and which may be made having regard to the nature of the appeal. This could mean that a determination in, say, 2010 of an appeal under s 97(1) in respect of a development application may well be different to a determination in 2007 of an appeal under s 96(6) in respect of a modification application. Such a difference is explicable and does not cause the administration of justice to be brought into disrepute." 33By parity of reasoning, a decision made in the context of an application engaging the provisions of the Affordable Housing SEPP, even if that decision is different from that made in respect of the earlier two applications, is a difference that is explicable and one that does not cause the administration of justice to be brought into disrepute. In determining the manner in which the provisions of the State Policy should be applied to the present application, considerations different from those previously brought to bear upon the dual occupancy or duplex development of the site would be required. Changes of that kind have been acknowledged as being appropriate to overcome claimed abuse of process said to arise from the making of successive applications for similar development ( Young v Parramatta City Council [2002] NSWLEC 176 at [20] - [22]). 34For these reasons, the Council has failed to establish that the present appeal involves an abuse of process. Its notice of motion should therefore be dismissed. In so concluding, none of my observations should be taken to reflect in any way upon the merits of the present appeal. It has been necessary for present purposes only to identify those differences that reflect material change from previous applications so as to conclude that the Council's notice of motion should not be sustained. 35It has been submitted on behalf of Mr and Mrs Hanna that should I reach the conclusion that I have, then the Council should be ordered to pay their costs of the motion. The Council opposes such an order on the basis that if the Council is ultimately successful in sustaining its grounds of refusal, it may wish to seek an order for costs, particularly if the appeal is refused on the grounds that the provision of private open space for each dwelling does not satisfy the requirements of DCP 2010. Thus, it seeks to have the costs of the motion reserved. 36I am of the view that the Council should be ordered to pay the costs of its unsuccessful notice of motion. While the Court is enjoined by LECR 3.7(2) from making an order in proceedings of this kind unless satisfied that such an order is "fair and reasonable in the circumstances", it seems to me that the example afforded by LECR 3.7(3)(a)(2) is relevant to justify the making of the order. The Council's motion sought determination of a preliminary question, potentially determinative of the proceedings and it did not involve any evaluation of the merits of the development application founding the appeal brought pursuant to s 97 of the Act. As I have determined that the prosecution of the present appeal by Mr and Mrs Hanna does not involve any abuse of the Court process, it seems to me that any order sought by the Council, in the event of ultimate success in the appeal, should not turn upon an argument that, in essence, founds its unsuccessful application to have the proceedings dismissed as an abuse of process. 37Accordingly, the orders that I make are as follows: