Malass v Strathfield Municipal Council

Category: Procedural rulings

Parties: Sarah Malass (Applicant)
Strathfield Municipal Council (Respondent)

Representation: Counsel:
G Farland (Applicant)
I Hemmings SC (Respondent)
Solicitors:
New South Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s): 2024/385895

Publication restriction: NA

JUDGMENT

1. The Applicant (Mrs Malass) has commenced Class 1 appeal proceedings following the refusal of development application 2024/1 (2024 DA) by Strathfield Municipal Council (the Council) for a property on Boden Avenue Strathfield (the Property). Development consent is sought for the ‘Partial demolition of the existing dwelling… including associated landscaping’.

2. The Council has filed a notice of motion seeking to have the appeal dismissed as an abuse of process because the 2024 DA is virtually the same as an earlier development application 2020/239 (2020 DA). The 2020 DA was the subject of Class 1 appeal proceedings resulting in the dismissal of the appeal in Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Malass 2022).

3. As the Council accepted, it bears a heavy onus on the civil standard of establishing abuse of process justifying dismissal of these proceedings.

4. The 2024 DA seeks consent for the use of the existing building, demolition of part of the first floor of the building and some construction. I note that the current building is not lawfully constructed in accordance with a DA granted to Mrs Malass in 2017.

5. Mr Loether solicitor swore an affidavit dated 12 December 2024 which was read in part and sets out the extensive planning and litigation history concerning development at the Property.

6. The parties agreed the following for the purposes of the hearing of the notice of motion:

7. in a quantitative analysis of a comparison of the 2020 DA and 2024 DA plans, differences would be described as minor;

8. in a qualitative understanding of difference, there is disagreement between experts (town planners) on whether that difference is meaningful;

9. for the purposes of the notice of motion I do not need to resolve whether the qualitative differences between the experts are meaningful.

10. As a result of the above agreement the Council did not seek to read affidavits of its planning consultant and parts of Mr Loether’s affidavit which referred to that evidence were not read.

History of proceedings

8. The Council provided the following chronology of the extensive history of the development of the Property and various current proceedings arising from that development.

| Date | Event | | 22 November 2017 | Notice of determination (approval) of development application no. DA2017/091 issued by the Council for the demolition of existing structures and construction of a new two storey dwelling with basement car parking, in ground swimming pool and front fence at the Property (2017 DA). | | 30 July 2018 | Construction certificate no. 2018/144 issued by Prime Building Certifiers. | | 14 September 2020 | Development Control Order pursuant to s 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) (Stop Work Order) in relation to extensive development works not in accordance with the 2017 DA plans approved by Council on 22 November 2017. | | 9 October 2020 | Mrs Malass filed Class 1 Application commencing LEC Proceedings 2020/00291053 appealing Council’s Stop Work Order (Development Control Order Proceedings). | | 27 November 2020 | In Development Control Order Proceedings Preston CJ made orders partially staying the Stop Work Order subject to conditions (Malass v Strathfield Municipal Council [2020] NSWLEC 168). | | 11 December 2020 | Mrs Malass lodged building information certificate (BIC) application no. 2020/022 (BIC 2020/022) with the Council for the unauthorised or illegal works at the Property pursuant to Order 2(a)(ii) of the Court orders made on 27 November 2020 in the Development Control Order Proceedings. | | 13 January 2021 | Mrs Malass lodged the 2020 DA for use of the land, additions and alterations to modify an approved dwelling including remedial works at the Property. | | 5 March 2021 | The Council determined to refuse the 2020 DA. | | 9 March 2021 | The Council determined to refuse BIC 2020/022. | | 10 March 2021 | Development Control Order issued pursuant to s 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (Compliance Order). | | 11 March 2021 | Mrs Malass filed Class 1 Application commencing LEC Proceedings 2021/00069569 appealing Council’s refusal of the 2020 DA. (First DA Proceedings). | | 11 March 2021 | Mrs Malass filed Class 1 Application commencing LEC Proceedings 2021/00069575 appealing Council’s refusal of BIC 2020/022. | | 14 April 2021 | The Council filed its SOFAC in Class 1 Proceedings 2020/00291053, 2021/00069569 and 2021/00069575 (the Consolidated Proceedings). | | 23 April 2021 | The parties attended a conciliation conference. | | 2 August 2021 | The Council filed a summons commencing Class 4 LEC Proceedings 2021/00220120 (Civil Enforcement Proceedings). | | 4 August 2021 | The Council filed a notice of motion in the Civil Enforcement Proceedings seeking an interlocutory injunction requiring Mrs Malass to immediately cease all works. | | 11 August 2021 | Pain J made orders in Civil Enforcement Proceedings, including: 1. Mrs Malass immediately cease all works at the Property and injunction to remain until finalisation of these proceedings. 2. The proceedings are returnable before the Registrar within seven days after determination of the Consolidated Proceedings. | | 19 October 2021 | Pain J made orders in Civil Enforcement Proceedings for Council officers to have access to the Property. | | 25 October 2021 | Robson J made orders granting the notice of motion by Mrs Malass to amend the 2020 DA, the subject of the First DA Proceedings. | | 10 November 2021, 16-17 & 22 December 2021 | Hearing of the Consolidated Proceedings before Senior Commissioner Dixon. | | 16 December 2021 | Council filed notices of motion commencing contempt proceedings in the Class 1 and Class 4 proceedings for Mrs Malass’ failure to comply with the orders made by Pain J on 11 August 2021 and 19 October 2021 (Contempt Proceedings). | | 12 May 2022 | Dixon SC delivered Malass 2022 refusing applications for Development Consent, Building Information Certificate and revocation of Stop Work Order. | | 2 November 2022 | Judgment handed down by Robson J in Strathfield Municipal Council v Malass [2022] NSWLEC 132. Mrs Malass was found in contempt for failure to comply with the orders made by Pain J on 11 August 2021 and 19 October 2021. | | 2 November 2022 | Judgment handed down by Robson J in Malass v Strathfield Municipal Council [2022] NSWLEC 131, holding Mrs Malass in contempt for failure to comply with the orders made by Preston CJ on 27 November 2020. | | 2 January 2024 | Mr Haskew town planner submitted the 2024 DA via the NSW Planning Portal for the development of the Property with the consent of the owner. The 2024 DA seeks consent for ‘Partial demolition of the existing dwelling as constructed and alterations responsive to previous litigation including associated landscaping to the site.’ | | 2 January 2024 | Mrs Malass submitted to the Council an application for a BIC for unauthorised or illegal works on the subject land with the consent of the Council. | | 19 March 2024 | The Court delivered judgment in the Civil Enforcement Proceedings, Strathfield Municipal Council v Malass (No 4) [2024] NSWLEC 22 | | 4 April 2024 | Pain J made orders and declarations in the Civil Enforcement Proceedings as to the unlawful works carried out at the Property, with the following orders as to vacating the Property and demolition of unlawful works: Order 5 states: ‘5. The Court orders that the Respondent [Mrs Malass], her servants, tenants, agents, and any other person, occupying the Subject Property, are to vacate within ten (10) months from the date of these orders.’ Order 6 states: ‘6. The Court orders that the Respondent by herself, her servants, tenants or agents are to demolish any building or part of a building that has been unlawfully erected and is non-compliant with the approved plans pursuant to Development Consent number DA2017/091 issued by Council on 22 November 2017 and Construction Certificate number 2018/144… within twelve (12) months from the date of these orders.’ | | 24 July 2024 | Refusal of the 2024 DA by the Local Planning Panel | | 17 October 2024 | Mrs Malass filed Class 1 Application commencing these proceedings appealing Council’s refusal of the 2024 DA. | | 12 December 2024 | Council filed notice of motion to dismiss these proceedings as an abuse of process. |

Additional evidence in Loether affidavit

9. The 2024 DA was lodged with the Council on 2 January 2024 and the architectural plans for the 2024 DA were annexed to Mr Loether’s affidavit.

10. The 2020 DA was amended 10 times prior to the hearing of Malass 2022. The architectural plans for the 2020 DA before Dixon SC in the hearing of Malass 2022 were also annexed to Mr Loether’s affidavit.

11. The 2024 DA was accompanied by a Statement of Environmental Effects and Building Information Certificate Planning Report prepared by Mr Haskew town planner (2024 SEE). The 2024 SEE states in the introduction that:

5. During the Appeal Process, the town planning experts prepared a sketch plan which showed a recess in the southern elevation at first floor level (see inset right).

6. By reference to the 6th bullet point in paragraph 18 of the judgment, we understand that modification formed part of the proposed development. It was said to have had the following benefits to the overall design:

… providing a discernible step in the built form and a separate first floor wall when viewed from the south. Thereby improving articulation of that facade and better solar access to the adjoining property to the south.

7. The first floor has been subsequently constructed and that recess was not provided.

8. The present applications now lodged seek development consent for demolition works to recreate that step in the southern facade at first floor level. The BIC Application then proposes approval of the remainder of the existing building.

12. At [48] Mr Loether said:

If the motion is not granted, I am instructed the Council will:

(1) Raise the same contentions that were the subject of the 2021 Hearing;

(2) Re-engage the same town planning expert, Brett Daintry, to address those same contentions;

(3) Otherwise maintain the same position it adopted in the 2021 Hearing;

(4) In particular, re-agitate the same arguments regarding FSR as were raised in the 2021 Hearing, and determined by the 2022 Judgment;

(5) Incur costs that will duplicate the costs incurred in the 2021 Hearing.

Malass 2022 judgment

13. In Malass 2022 Dixon SC considered Mrs Malass’ application made in reliance on cl 4.6 of the Strathfield Local Environment Plan 2012 (NSW) to allow a variation of the floor space ratio (FSR) controls. The Senior Commissioner considered the environmental planning grounds used to justify the application as follows:

9 At the request of the parties, the Registrar listed the appeals to be heard consecutively and that the evidence in one, where relevant, be evidence in the other proceedings. At the hearing it was agreed that the DA appeal be dealt with first because if the Court was satisfied, on the evidence, that development consent should be granted, then it necessarily followed that both the BIC and DCO appeals should be allowed.

…

10 For the reasons that follow, I have decided to dismiss the DA appeal and the BIC appeal. The DCO is upheld and the appeal is therefore dismissed, and the stop work order continues to remain in effect until a construction certificate is issued by the consent authority.

…

51 The request outlines the following environmental planning grounds to justify the component of the development which results in the FSR variation:

“• The proposed building is of a scale and character generally anticipated by the planning controls, it is compliant in relation to maximum building height and front and rear setbacks, provides 42% landscaped area and meets the objectives of that control. The proposed variation does not result in any unacceptable detrimental impact or a built form outcome which differs from that which is expected on the site. Therefore, the appropriate contextual fit of the proposed building provides an environmental planning ground to support the proposed variation.

• The proposed variation does not result in any unacceptable adverse impacts of the kind that the FSR control is intended to manage or avoid.

• Taking into account that the exceedance is confined to the basement level and this basement level is being included by the Respondent as it exceeds 1m above ground level. This is a technical breach of the FSR standard.

• Allowing this contravention, which has no unacceptable material adverse impacts, enables the proposed development to better achieve important planning goals. In particular, it promotes the efficient and spatially appropriate use of land as set out as a plan aim in clause 1.2(2)(b) of the SLEP.

• The proposal provides for the housing needs of the community as per the first objective of the R2 zone under clause 2.3 of the SLEP.

• In this particular circumstance, there are sufficient environmental planning grounds to warrant the proposed variation to the FSR standard.”

…

Finding—cl 4.6 written request

55 For the reasons submitted by the Council and based on my observations of the locality I am not satisfied that the applicant's cl 4.6 written request to vary the FSR development standard in cl 4.4C of the LEP has demonstrated that there are “sufficient environmental planning grounds” to justify the contravening [of] the development standard”.

56 The proposal exceeds the permissible GFA by 68m2 some 15.6%. The breach of the standard has adverse environmental consequences for the whole of the development. It is incorrect to submit that the exceedance is confined to the basement level. As I observed and Mr Daintry identified in his evidence the basement storey is visible from the street and adds to the bulk and scale of the development. A third storey is inconsistent with the surrounding built form existing and new. The built form cannot be described as being consistent with the objectives ((a), (b) and (c)) of the standard as the applicant submits. Allowing the contravention does not, as the applicant submits, “enable the proposed development to achieve important planning goals” – whatever that means. Nor am I clear as to how the contravention of the standard promotes “the efficient and spatially appropriate use of land as set out as a plan aim in clause 1.2(2)(b) of the SLEP”…

57 Put simply, the environmental planning grounds relied on by the applicant in her cl 4.6 written request (reproduced at [51]) do no more than seek to promote the benefits of carrying out the development as a whole not to justify the 68m2 exceedance of the control (Initial Action at [24]). Notwithstanding the generality of the phrase “environmental planning grounds” as it refers to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) the focus must be on the aspect of the development that contravenes the development standard (Initial Action at [23]). The applicant's written request falls short of the mark and has not identified sufficient environmental planning grounds to justify the contravention of the standard to allow approval of an extra 68m2 GFA in this dwelling house.

…

Council’s submissions

14. The Council submits that allowing the approval of the ongoing use of a residential dwelling that has been built in breach of the 2017 DA, the related construction certificate, the Stop Work Order issued by the Council and numerous court orders informs the circumstances for this application.

15. Davies AJA summarised the relevant principles concerning an abuse of process where multiple similar development applications are filed in Russo v Kogarah Municipal Council (1999) 105 LGERA 290; [1999] NSWCA 303 (Russo) at [14]-[15]. The applicant in that case had made two successive applications to the Court for development consent, which had each been unsuccessfully appealed on questions of law. Those principles have been accepted and applied in subsequent decisions of this Court.

16. In Edwards v The Hills Shire Council [2009] NSWLEC 187 (Edwards), Biscoe J dismissed a development appeal for a brothel as an abuse of process. An earlier appeal for a brothel on the same site had been dismissed by the Court some months previously. Evidence of changed economic circumstances, a decrease in rooms and other (said to be minor) changes to the proposal were not accepted as a basis for the appeal to be continued. His Honour applied the principles in Russo.

17. In Nikolaidis v Pittwater Council (2009) 171 LGERA 104; [2009] NSWLEC 227 (Nikolaidis), Preston CJ reviewed the authorities on abuse of process, including Russo and Edwards. His Honour concluded that the principles in those authorities do not apply in cases where different processes are involved (such as a development appeal followed by a modification application appeal), at [13]-[23]. No such difference applies here.

18. In Hanna v Council of the City of Ryde [2011] NSWLEC 74 (Hanna), Craig J dismissed a summary dismissal application as there were significant changes to the application, including to the parking and open space provisions. The State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) had commenced since the last application was made and changed the applicable parking provisions. No such differences apply here. Nothing has changed so far as the controls are concerned.

19. More recently, in Newland Developers Pty Ltd v Tweed Shire Council [2020] NSWLEC 1107 (Newland) Clay AC also reviewed the applicable authorities and distinguished Edwards, finding (on a second application for a subdivision that has previously been refused) that a change in the position of the Department of Education regarding the prospect of development of a nearby school site, coupled with demographic evidence when the application had not relied on such evidence previously was sufficient basis not to dismiss the application. Those matters were accepted to be a change in circumstances. There are no such changes in circumstances here.

20. What is readily apparent from a comparison between the 2024 DA and what was determined in Malass 2022 is that there is no new or different assessment required now.

21. The 2024 DA is an abuse of process because:

22. it is virtually the same as the DA that was refused in Malass 2022;

23. the 2024 DA plans also propose a modification to the recess on the first floor, and duplicate the 2020 DA plans in that respect (as identified in the 6th bullet point in paragraph [18] of Malass 2022);

24. no new factual or statutory change in circumstances that would justify a fresh application are identified;

25. the cl 4.6 statement filed in support canvasses precisely the same issues as have already been determined in Malass 2022;

26. Malass 2022 was the determination of an application that had been amended at least 10 times by the time of the hearing;

27. lodgement of the 2020 DA was a condition of court orders for a partial stay of a Stop Work Order that required unlawful work to cease at the Property;

28. the Council will be severely prejudiced if required to deal yet again with effectively the same DA.

29. The Senior Commissioner considered the question of the correct gross floor area (GFA) and FSR calculation for the proposal and made findings at [40]-[47]. The Senior Commissioner concluded at [55]-[58] that the cl 4.6 application should be refused.

30. The 2024 SEE indicates that the 2024 DA does relate to the use of the whole of the existing development as the 2020 DA considered in Malass 2022 also did.

31. Mr Loether’s affidavit at paragraph 48 above in [13] identifies how the Class 1 appeal will be essentially a rerun of the issues in Malass 2022. Apart from a reduced recess on the first floor the 2024 DA appears almost identical to the 2020 DA the subject of Malass 2022.

32. Mrs Malass’ approach potentially brings the Court into disrepute as no significant change in development is proposed, the applicable controls are the same and there is no change in the surrounding environment. The Court is being asked to adjudicate again matters considered in Malass 2022.

33. The Council accepts that Mrs Malass can make multiple development applications but submits any fresh application must be materially different from what has already been considered by the Council and the Court in order to avoid being an abuse of process.

34. Mrs Malass has proposed for the first time in written submissions responding to the Council’s notice of motion that a cl 4.6 application is not required, relying on Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 (Landcorp). That is a new argument that could have been made in Malass 2022 and was not.

Mrs Malass’ submissions

28. The Council bears a heavy onus to establish abuse of process, Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ) (Spautz). No issue estoppel arises in planning appeals, Benmill Pty Ltd v North Sydne**y Council (No 2) [2020] NSWLEC 44 at [61]-[65] (Benmill Pty Ltd), Randwick City Council v Belle Living Pty Ltd (No 2) [2023] NSWLEC 100 at [144]. Russo should be considered on its facts and is not applicable to these circumstances. It followed lodgement of more than two development applications. When the other cases referring to Russo relied on by the Council are considered most applications were not successful, suggesting that its application has been quite sparing.

29. Malass 2022 did not consider the merits of the 2020 DA. The cl 4.6 application to vary the FSR standard was not accepted leading to refusal of the DA, the BIC and dismissal of the appeal of the Stop Work Order. The current Class 1 appeal seeks consent in respect of largely the same building with minor changes proposed at the first floor with a new recess proposed and marginal modifications to the basement. The issues are not the same as Mrs Malass will argue that:

30. there is no need for a cl 4.6 request for use of the existing building, relying on Landcorp;

31. even if there was, the grounds relied on to justify the exceedance of the FSR standard are different to those submitted in the Malass 2022 proceedings;

32. the works proposed are relevantly different to those in the Malass 2022 proceedings.

The 2020 DA and 2024 DA compared

30. Mrs Malass submitted that the main differences between the 2020 DA and the 2024 DA were in the demolition plans and associated works to the first floor of the building on the Property.

31. The 2024 DA has made changes to the demolition plan in the basement compared to the 2020 DA. Some walls that were to be demolished in the 2020 DA are being retained and walls that were to be retained are being demolished in the 2024 DA. The 2024 DA includes plans to demolish areas of the basement to reduce the GFA that might otherwise be calculable. A room in the basement that was to be demolished in the 2020 DA will be retained.

32. On the ground floor less demolition will occur under the 2024 DA and the stair arrangement will be retained instead of demolished.

33. On the first floor instead of the southern wall being demolished there will be an indent created by removal of a bathroom and realignment and relocation of a bedroom. Presentation of the southern facade is different in the 2024 DA as the 2020 DA proposed the ground floor at a 1.530m setback and the first floor at a 2.175m setback. The southern facade will now have the ground and most of the first floor at the same alignment but for a new indent in the middle of the first floor. At the front facade, screens will be removed and wings that were being removed under the 2020 DA will remain under the 2024 DA.

34. One part of the roof on the northern boundary is now to be demolished instead of parts of the roof to the east and west in Malass 2022.

35. Mrs Malass submitted that the above changes would affect the street front elevation and side elevation of the building, the extent of excavation, and the size of the basement. The changes may not be qualitatively minor for the purposes of opposing an abuse of process application.

Consideration

36. As identified in Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351 at [62] (Kyrou JA) citing Spautz at 529 the Council bears a heavy onus of establishing abuse of process with the power to grant a permanent stay to be exercised only in exceptional circumstances. The categories of abuse of process are not closed. Many of the cases of abuse of process can be considered in one or more of three categories, being the court’s processes would be invoked for an illegitimate or collateral purpose, the use of the court’s procedures would be unjustifiably oppressive to a party, or the use of the court’s procedures would bring the administration of justice into disrepute, Rogers v R (1994) 181 CLR 251; [1994] HCA 42 at 286 (McHugh J) quoted in Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ), PNJ v R (2009) 83 ALJR 384; [2009] HCA 6 at [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [14] (Kiefel CJ, Gageler, Keane and Gordon JJ). No illegitimate or collateral purpose is alleged and I do not understand the Council to be arguing the appeal is unjustifiably oppressive. While it submitted it was severely prejudiced because it would incur costs in relation to issues that would be relitigated, consideration of such issues is well within its usual activities as a consent authority assessing a development application. The principal basis relied on by the Council is that the appeal will bring the administration of justice into disrepute. This category is reflected in the Council’s reliance on Russo.

37. Davies AJA identified relevant considerations concerning abuse of process in a particular context relevant to merit appeals in Russo at [14]-[15] as follows:

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.

38. In the same case, Stein JA concluded at [9]:

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…

39. A few cases since Russo have considered whether a later DA is unacceptably similar to an earlier DA already determined by the Court, as outlined in the Council’s submissions. As highlighted by Mrs Malass, most cases which have considered Russo have not accepted that an appeal of a later development application was an abuse of process. Only in Edwards did the changes not render the later DA sufficiently different so that the proceedings were dismissed as an abuse of process. In Nikolaidis different processes applied. In Hanna changes in the proposed DA were found to be sufficiently different and newly applicable statutory provisions had commenced. In Newland there were relevant changes in circumstance. Ultimately each case must be determined on its own facts and circumstances.

40. It is agreed that the physical differences between the 2020 DA and the 2024 DA are quantitatively minor. I was taken to these differences by Mrs Malass as summarised above at [31]-[36] who sought to emphasise that they were nevertheless relevant for this application. I accept there are relevant differences in the development proposed from that in Malass 2022. The parties disagree on whether the changes are qualitatively different for the streetscape and the neighbours and that will be the subject of expert opinion at any hearing. The parties agreed that there is otherwise no change in statutory controls or the surrounding neighbourhood since the determination of Malass 2022.

41. As Mrs Malass identified this is the second development application she has made to the Council in relation to the Property, distinguishing her circumstances from the reference to multiple applications in Russo at [9] and [14]. The Council highlighted the observation in Malass 2022 at [12] that the plans then relied on were amended 10 times in the course of the proceedings by Mrs Malass but I do not consider that is a relevant consideration in relation to whether this Class 1 appeal is an abuse of process.

42. Mrs Malass seeks to make a new argument not previously made in Malass 2022 that a cl 4.6 variation of the FSR control is not required, relying on Landcorp. The Council urged the Court to resolve as part of considering this motion the application of Landcorp in these circumstances and whether it can apply as Mrs Malass seeks to do at the hearing of the Class 1 merit appeal. I do not consider this motion is the appropriate vehicle for finally resolving that issue, and did not hear sufficient argument to do so in any event. More relevantly for my current consideration, the Council submitted that such an argument could and should have been made in the context of Malass 2022 relying on Russo at [15]. While relevant, such an argument arguably has less role to play given that, speaking generally, the principle of issue estoppel does not apply to a merit determination of a commissioner of a development application, see Benmill Pty Ltd at [57]-[65], applying Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [178]-[189].

43. Alternatively, according to Mrs Malass to the extent that a new cl 4.6 variation application is to be made, it will vary from what was submitted previously.

44. The other relevant matter emphasised by Mrs Malass is that Dixon SC did not determine the merits of the 2020 DA as the she was not satisfied that the cl 4.6 application to vary the FSR control should be accepted. The Senior Commissioner’s consideration of the environmental planning grounds relied on to justify the cl 4.6 variation of the FSR control was extensive as can be seen in [41]-[58] of Malass 2022. It is correct to state that the overall merits of the 2020 DA were not considered. As identified at [9] in Malass 2022, the cl 4.6 variation being refused resulted in the refusal of the 2020 DA and the BIC. While the Council’s solicitor submitted in his affidavit at [48] that the same expert evidence and submissions in relation to the FSR as were made before Dixon SC would be made at any future hearing, there is potential for additional issues not already considered by the Court to arise for consideration.

45. The Council also seeks to rely on events beyond the Class 1 appeal to matters which are much wider in scope than were considered in the cases which referred to Russo. Those cases essentially compared circumstances relevant to the merit determination of a Class 1 merit appeal. Development at the Property has been the subject of extensive litigation beyond the Class 1 jurisdiction of the Court as outlined in the chronology above at [9]. The Council’s evidence identified that development consent for a house was obtained in 2017 and building commenced. The Council issued a Stop Work Order in 2020 and sought to enforce that in the Court. The Court made several orders requiring no or limited work to be carried out at the Property. Multiple motions for contempt of court orders brought by the Council against Mrs Malass were upheld. The upshot is that the completed house on the Property does not comply with the 2017 development consent or the construction certificate issued pursuant to that consent and is presently occupied. Mrs Malass is now subject to a demolition order in relation to part of the house and an order to vacate the house, neither of which she has complied with.

46. Mrs Malass is seeking to regularise the use of her family home inter alia, after regulatory action and extensive court proceedings seeking to prevent its completion and occupation. The Council submitted that Mrs Malass had the opportunity to regularise the work carried out at the Property in Malass 2022, and obtained a partial stay of the Stop Work Order in order to do so, to support its argument that these proceedings are an abuse of process. Whether litigation in Class 4 of the Court’s jurisdiction is relevant to the assessment of these Class 1 proceedings is not obvious in my view. The different classes of case have quite different legal bases and potential outcomes. It is fair to observe that the development at the Property has generated a lot of litigation which is ongoing. I am inclined not to consider that overall history in my consideration of the present issues given that Mrs Malass is presently seeking to exercise a statutory right of appeal of the refusal of a development application in Class 1 proceedings.

47. Weighing up in the exercise of my discretion the matters outlined above relevant to the necessary comparison of the former and current Class 1 proceedings, I do not consider this Class 1 appeal is an abuse of process. If it proceeds the Court’s administration will not be placed in disrepute. I therefore decline to make the order to that effect sought by the Council’s notice of motion and the notice of motion is dismissed.

Order

48. The Court orders in the notice of motion filed 12 December 2024 in proceedings 2024/385895:

49. The notice of motion is dismissed.

50. Costs are reserved.

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