Nikolaidis v Pittwater Council [2009] NSWLEC 227 | Case summary

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." 8 In that case, the applicant had made three successive development applications seeking development consent for the same development of a childcare centre on the same land. Each application had been refused by the Council. The applicant had appealed each decision to the Court. Both the first appeal and the second appeal were dismissed by the Court, constituted by different assessors on each occasion. On the third appeal, the Council moved the Court for the proceedings to be dismissed on the principle of res judicata. The Court upheld the Council's motion. On appeal to the Court of Appeal, the Land and Environment Court's decision dismissing the third appeal was upheld, although the basis was held to be not res judicata but rather an abuse of process. 9 The Council also relied upon the recent decision of Biscoe J in Edwards v The Hills Shire Council [2009] NSWLEC 187 dismissing a second appeal under s 97(1) of the Act as being an abuse of process. In that case, as Biscoe J noted in paragraph 2 of the judgment: "The proceedings are a merit appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by council of a development application for a brothel at Old Northern Road, Baulkham Hills. The basis of the motion is that an appeal against the council's refusal of an earlier development application for a brothel in this location was dismissed by the Senior Commissioner as recently as 29 April 2009, in Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126, and that there has been no significant change in circumstances." 10 Biscoe J applied the Court of Appeal's decision in Russo v Kogarah Municipal Council and found that there had been no material changes in circumstances or factors material to the reasons of the Court in dismissing the first appeal (at [12], [13]). Accordingly, the proceedings were held to be an abuse of process and were dismissed (at [14], [18]). 11 The Council submits that in the present case, there has been no material change in circumstances. The Council disputes the applicants' stated intention to rely on arguments and evidence not put before Commissioner Tuor in the s 96(6) appeal. The applicant wishes to rely on evidence of development consents granted for houses in the neighbourhood and on the unsightliness of partially completed buildings in the neighbourhood. The applicant also seeks to rely upon different evidence to that which was relied upon in the s 96(6) appeal. The applicants submit such evidence was not available or considered by Commissioner Tuor in the s 96(6) appeal and, therefore, there are changed circumstances: see affidavit of Michael Zwar sworn 8 December 2009 and the documents tendered on the hearing of the motion. 12 The Council has adduced evidence that the development consents not only were in existence at the time of the hearing of the s 96(6) appeal and could have been put before Commissioner Tuor, but indeed the consents were referred to in the evidence of the applicants' town planner in the s 96(6) appeal and in documents in the Council's bundle of documents tendered in the appeal. Moreover, the Council submits that the applicants had the opportunity at the s 96(6) appeal to raise the arguments and to adduce the evidence they now wish to do. The Council refers to the statement of Davies AJA in Russo v Kogarah Municipal Council at [15] and Biscoe J in Edwards v The Hills Shire Council at [12]. 13 The onus of satisfying the Court that there is an abuse of process lies upon the Council being the party alleging it. The onus is a "heavy one": see Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529. In the circumstances of this case, I do not consider the Council has discharged the onus of establishing that the current proceedings are an abuse of process. 14 The current proceedings involve a s 97(1) appeal against a decision of the Council under s 80(1) of the Act to refuse a development application. The previous proceedings involved a s 96(6) appeal against a decision of the Council under s 96(2) of the Act to refuse an application to modify a development consent. Unlike Russo v Kogarah Municipal Council, where there were three identical development applications and appeals or Edwards v The Hills Shire Council where there were two identical development applications and appeals, here the applications and the appeals are different. An application to modify a development consent under s 96(2), the matters to be considered in determining such an application under s 96(2) and (3) and the power to approve such an application are subject to limitations: see s 96(2), (3) and (4) of the Act. They are different to a development application under s 78A(1), the matters to be considered under s 79C(1) when determining a development application and the power to approve a development application under s 80(1) of the Act. 15 Accordingly, the "process" in an appeal under s 96(6) is different to the "process" in an appeal under s 97(1) of the Act. This is an important point of distinction from the cases of Russo v Kogarah Municipal Council and Edwards v The Hills Shire Council. Critical in those cases was the fact that the same process was being repeatedly used; it was the repeated use of the same process that constituted the abuse. Hence, in Russo v Kogarah Municipal Council, Stein JA with whom Meagher JA agreed, stated 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." 16 Likewise, Davies AJA referred to the abuse being to bring repeated applications seeking to re-agitate issues which have been, as a matter of substance, already been determined in prior decisions (at [14]). It is clear from the facts of that case and Davies AJA's subsequent comments that he was referring to repeated applications of the same process. Only in this way could a new application appear to be a collateral attack upon the prior decision or decisions of the Court in respect of a previous application. If the new applications were of a different process to a previous application, it could not appear to be a collateral attack on the prior decision of the Court in respect of the previous application. 17 Davies AJA's citation in paragraph 16 of the judgment from Wiest v The Director of Public Prosecutions (1988) 23 FCR 472 at 486-487 explains the reason for repeated applications of the same type, which constitute the process, being an abuse. The passage quoted, together with the next two sentences from Wiest v The Director of Public Prosecutions not quoted by Davies AJA, is as follows: "In Deputy Commissioner of Taxation v Edelsten (unreported Burchett J, 10 March 1988), I discussed, in the context of s 55 of the Bankruptcy Act, a number of the leading authorities in respect of abuse of process. I concluded that: 'These authorities unite in seeing as crucial the purpose for which the process is used. It is the illegitimacy of the purpose that makes the abuse.' If this is the root from which the principle grows, the reason why repeated applications may be an abuse of process is that the process was not intended to be used to achieve the purposes involved in some cases of repeated applications. It is true that harassment results. Nevertheless, it is not merely because of the harassment, but because the process was not intended to be used to harass (nor, at least in some circumstances, for the purpose of a relentless pursuit of a man already found not liable to extradition), that the process may be abused in cases of this kind." 18 Applying these comments to the context of a statutory right to make a development application for consent to carry out development and to the statutory right of appeal to the Court against a consent authority's determination of the development application, the "process" of such appeal was not intended by the legislature to be used to achieve the purposes involved in making repeated development applications and appeals, such as harassment or re-litigating what is in substance the same application and the same appeal. Such legislative intent is not express, as there is no express limitation on either making repeated development applications with respect to the same development to a consent authority or appealing to the Court against determinations of the consent authority of such development applications. Rather, it is implied; the legislature cannot have intended the process of appeal against a consent authority's determination of a development application to be used to achieve these extraneous purposes. 19 However, such implied legislative intent cannot be extrapolated from the same process to different processes. For example, an appeal under s 96(6) of the Act against a determination of an application to modify a development consent is a different process to an appeal under s 97(1) against a determination of a development application. To use one process after having used the other process is not to make repeated applications; they are different applications and appeals. There is no express statutory limitation on being able to use one process after having used the other process. Indeed, the statute allows both processes to be used, including to achieve a modification of an existing development consent: see Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 at 242. 20 There is also no implied limitation; the legislature cannot have intended that the exercise of one statutory right to appeal against a determination of an application for some form of approval would preclude the exercise of one or more other statutory rights to appeal against different decisions under different statutory provisions. 21 Accordingly, in this case, for the applicants to exercise for the first time their statutory right to appeal under s 97(1) of the Act against a determination of the Council refusing the applicants' first development application under s 78A(1) to erect a parapet on their dwelling house is not an abuse of process simply because the applicants have earlier exercised a different right of appeal under s 96(6) of the Act against a different determination of the Council of a different application under s 96(2) of the Act to modify an existing development consent. The new development application and appeal under s 97(1) cannot appear to be a collateral attack upon the prior decision of the Court in the different appeal under s 96(6) with respect to a different type of application, being a modification application not a development application. 22 The applicants also could not have run their current appeal under s 97(1) "in" the s 96(6) appeal - the two types of process are different. 23 The fact that the merit issue concerning the parapet increasing the height and bulk of the dwelling may have been raised and factual findings may have been made in the s 96(6) appeal, and may again be raised and factual findings may need to be made in the s 97(1) appeal, does not necessarily result in an abuse of process. The overlap of issues in two different types of process does not necessarily cause the process that is second in time to be an abuse. 24 The current s 97(1) appeal is not an abuse of process in any other way. Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [15] cited with approval the observation of McHugh J in Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 286: "Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute." 25 None of these three categories are applicable here. The applicants have not exercised their statutory right of appeal under s 97(1) of the Act for an illegitimate purpose. The purpose is that for which a s 97(1) appeal is intended; to allow the Court to review on the merits the Council's determination of the applicants' development application. There is no extraneous purpose of harassment or collateral attack on the prior decision of the Court in the earlier and different s 96(6) appeal. The applicants are not using the s 97(1) appeal "as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers": Williams v Spautz at 526-527. 26 The applicants' exercise of their statutory right of appeal under s 97(1) is not unjustifiably oppressive to the Council. There is no evidence before the Court to suggest that the s 97(1) appeal will be more onerous or difficult or expensive than any other s 97(1) appeal. The mere fact that the merit issue concerning the parapet causing the height and bulk of the dwelling to be increased will need to be revisited on this appeal does not cause unjustifiable oppression to the Council. Consent authorities regularly have to deal again with certain merit issues that may be common to many types of applications and appeals under the Act. 27 The applicants' exercise of their statutory right of appeal under s 97(1) of the Act does not bring the administration of justice into disrepute. The Court hears and determines the proceedings brought properly before it. The Court heard and determined the applicants' s 96(6) appeal. The bringing of a different appeal under s 97(1) of the Act does not constitute a collateral attack on the Court's determination of the s 96(6) appeal. The Court can determine the s97(1) appeal without collaterally attacking the Court's earlier decision in the s 96(6) appeal. Even if the Court were to decide to uphold the s 97(1) appeal and grant development consent to the proposed parapet, that does not cause the administration of justice to be brought into disrepute. It may be a different merit outcome to that reached in the earlier s 96(6) appeal. However, the administration of justice in the context of merits 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. 28 For these reasons, the Council has not established that the applicants' s 97(1) appeal is an abuse of process and the Council's motion should be dismissed. 29 The parties are agreed that the costs of the motion should follow the event. I agree. The Council should pay the applicants' costs of the motion.

Nikolaidis v Pittwater Council

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Judgment (14 paragraphs)

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