Respondent CORPORATION OF THE CITY OF CHARLES STURT:

On Appeal from ENVIRONMENT RESOURCES AND DEVELOPMENT COURT (COMMISSIONER HODGSON)

[1999] SASC 10

DEBELLE J. (Ex tempore) This is an appeal from the Environment Resources and Development Court. The issue is whether the principles of res judicata apply in respect of a decision of the court upholding the refusal of a planning authority to grant planning permission.

Mr and Mrs Thorpe reside in a house property at West Lakes. The house property is within the area of the Corporation of the City of Charles Sturt ("the Council"). Mr and Mrs Thorpe are tenants in common of the land on which the house property is erected. The house is in McDonald Grove, West Lakes. McDonald Grove forms part of a planned residential estate and is in a Residential 1W zone as prescribed by the Development Plan for this area of the Council. The combined effect of the Development Plan and the Development Regulations 1993 is that the construction of a fence of any height constitutes a development for which planning permission must be obtained. Many of the houses in McDonald Grove do not have front fences.

In 1996, Mr Thorpe in his own name applied to the Council to erect a brick and wrought iron fence along the front boundary of the land. The Council refused planning permission. Mr Thorpe appealed to the Environment Resources and Development Court ("the ERD Court"), which dismissed the appeal.

Mr and Mrs Thorpe were not content to leave the matter there. On 17 November 1997, Mrs Thorpe applied to the Council in her name for consent to erect a fence along the front boundary. The application was for a fence of the same dimensions and type of construction as the fence the subject of the 1996 application and it was to be in the same location. The Council refused to grant planning permission. Mrs Thorpe then appealed to the ERD Court against the Council's decision. The ERD Court held that there was no material difference between the two proposals and that there had been no material change in circumstances in the time between the proposal the subject of the first appeal and the present proposal. It held that there was, therefore, an estoppel by res judicata. From that decision, Mrs Thorpe appeals to this Court. The only issue on this appeal is whether the ERD Court was correct in deciding that it had no jurisdiction because the matter was res judicata.

The principles of res judicata bind the same parties to an action or their privies. Although Mr Thorpe had made the first application and was the appellant in the first appeal and Mrs Thorpe is the second applicant and the appellant in the second appeal, Mrs Thorpe does not contend that she is not bound by the principles of res judicata if they are applicable. The concession is properly made, since both Mr and Mrs Thorpe are registered as tenants in common of the land and each would have been privy to the respective applications for development consent. Instead, Mrs Thorpe contends the principles of res judicata do not apply in respect of a decision to withhold planning permission, since the decision involves no question of a legal right.

The question of estoppel by res judicata was raised by the ERD Court of its own motion. It was not raised by the Council. The Commissioner hearing the matter decided that res judicata was a matter going to the jurisdiction of the court and, despite the fact that neither party sought to raise the question, he should proceed to determine it himself. The Commissioner has erred in reaching that conclusion. The rule of estoppel by res judicata is not a matter going to the jurisdiction of the court but is, instead, in the nature of a defence. It is a matter which must be pleaded by one of the parties if it is to be relied upon. It is open to parties not to plead estoppel by res judicata. Given that the Council did not plead that issue, it was not open to the Commissioner to rely on this ground. The Commissioner should have proceeded to hear and determine the appeal. For these reasons, the appeal must be allowed.

Although that is sufficient to dispose of the appeal, out of deference to the arguments advanced by Mr Costello, who is counsel for Mrs Thorpe on this appeal, I add the following comments.

Mr Costello submitted that, although the principles of res judicata might apply when a planning permit has been granted, they cannot apply when a decision has been made to withhold planning permission. From that premise, he contended that the principles do not apply in the ERD Court. For the reasons which follow, his premise is correct but I do not think that the conclusion he seeks to draw from that premise is so clear that I can, in the absence of full argument inter partes, decide the question.

The rule of estoppel by res judicata is that where a decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject- matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits: Carl Zeiss Stiftung v Rayner & Keeler Ltd [No.2] [1967] 1 AC 853 per Lord Guest at 933. His Lordship was quoting par3 of Spencer Bower on Res Judicata, (first edition). See also par1 of Spencer Bower Turner & Handley, Res Judicata, (third edition). As Gibbs J pointed out in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453, the expression 'judicial tribunal' in this context is used for convenience to indicate that an estoppel of this kind, that is to say res judicata or issue estoppel, does not result from a mere administrative decision, but the question of whether such an estoppel is raised is not answered by enquiring to what extent the tribunal exercised judicial functions or whether its status is judicial or administrative. Thus, the true enquiry is as to the nature of the decision.

A decision to grant or refuse planning permission does not involve the determination of a legal right. Instead, it is an administrative decision determining whether a person will be permitted to proceed with an intended development. A planning authority, be it a local governing authority or the Development Assessment Commission, is not making a judicial or an administrative decision. The authority is exercising an administrative discretion to permit what would otherwise have been permitted: Cook v Faithland Inc. (1993) 79 LGERA 308 per Fullagar J at 309. The exercise involves consideration of some kind of planning instrument and issues concerning the amenity of the neighbourhood and the effect of the proposed development upon that amenity. An applicant for planning permission, generally speaking, has no right or entitlement to a grant of planning permission in the event that certain facts are established. This is in contradistinction to a decision of a court of law or a tribunal where, if a party establishes certain facts which satisfy a principle of law, as a general rule, that party is entitled to a decision in his favour: Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 per Lord Bridge at 287 and 290, and Porter v Secretary of State for Transport [1996] 3 All ER 693 at 700. Thus, the decision whether to grant or refuse planning permission is an administrative decision which does not give rise to an estoppel in the form of res judicata. The principles of res judicata do not, therefore, apply in respect of decisions of planning authorities to refuse development consent.

There are two policy reasons which underlie the principles of res judicata. One is public policy, namely, the interest of the community in the determination of disputes and the finality of litigation. The other is grounded on private justice, namely, the right of the individual to be protected from vexatious multiplication of suits and prosecution. These policy reasons have long been recognised and are conveniently noted in par10 of Res Judicata (third edition). It might be contended that there are advantages in the principles applying to decisions to grant or refuse planning permission. It might be said that planning authorities should not be vexed with, say, repeated applications for a development which has been refused, or that if neighbours have successfully objected to a development proposal, they should not be troubled with repeated applications for the same or a like development. However, there are difficulties in applying the principles of res judicata to planning decisions of this kind. One which is immediately apparent is that the circumstances which affect the amenity of the particular neighbourhood may change so that the proposal which formally was determined to have an adverse effect upon the amenity would no longer do so. Furthermore, experience in this jurisdiction indicates that it is rare indeed for repeated applications to be made for a development which has been refused without any change at all in the material circumstances. In most cases there is usually some change in the material circumstances. Thus, notwithstanding the reasons which might justify applying the principles of res judicata, there are other more compelling reasons to decide not to do so.

What then is the position in the ERD Court? A person who has applied for a grant of development consent but has been refused has the right to appeal to the ERD Court: s86 of the Development Act 1993. The ERD Court is a court of record. When exercising its jurisdiction on an appeal by a disappointed applicant for planning permission, it is determining a dispute between that applicant and the planning authority both of whom may appear and be heard. The court's decision is a decision pronounced between the parties after hearing evidence and oral argument. In making its decision, the court adjudicates the question whether the planning authority was correct in refusing planning permission. In other words, a decision of the ERD Court is a decision pronounced by a judicial tribunal, having jurisdiction over the cause and the parties which disposes of the matter decided by it. In this respect, it is a decision which might appear to attract the principles of res judicata. However, as will be seen, there is a question whether the Court dispose of the matter once and for all.

Notwithstanding the factors first mentioned there are other factors which call into question whether it is appropriate for the principles of res judicata to apply in the ERD Court. The decision of the court, like the decision of the planning authority appealed from, is not the determination of a legal right but again is an administrative decision to allow or deny permission for a proposed development. The appellant stands in the same position as he did as an applicant before the planning authority in that he has no legal right or entitlement to the grant of planning permission if he establishes certain facts. The court, like the planning authority, forms an opinion whether it should grant planning permission. To repeat the observations of Lord Bridge in Thrasyvoulou (supra) at p290, a decision to withhold planning permission involves no determination or adjudication of legal rights as between parties. Instead, it is to do all over again what the planning authority itself did albeit that the planning authority may be a party to the appeal: c.f. Midland Metals Overseas Limited v Comptroller General of Customs (1991) 30 FCR 87 at 97 to 99, adopting the observations of Kitto J in Mobil Oil Australia Pty Ltd v Commission of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 and 502. The court is not making an adjudication: c.f. the observations of Kitto J in R v Trade Practices Tribunal [1970] HCA 8; (1970) 123 CLR 361 at 373. Furthermore, the decisions of the ERD Court are unlike the decisions of other courts which attract the operation of res judicata because they are not decisions which decide matters between parties conclusively and for all purposes since changed circumstances may justify renewing an earlier application which had been refused.

For these reasons, although the ERD Court is a court of record, I am inclined to have the view that in cases where the court has upheld the decision of a planning authority refusing a grant of planning permission, the principles of res judicata do not apply. I prefer to express no final conclusion since the matter has not been argued inter partes.

Notwithstanding that the principles of res judicata do not apply, it is, of course, open to the ERD Court to decide that there has been no material change in the circumstances, or if there has been a change, nevertheless, to reach the same decision as on the first appeal.

One means of seeking to prevent parties from continuing to appeal against decisions of planning authorities refusing planning permission for the same development where there has been no change or no material change in the relevant circumstances is for the ERD Court to exercise the power vested in it by s29(1) of the Environment Resources and Development Court Act 1993 to make an order for costs on the grounds that proceedings are frivolous or vexatious. Orders for costs against an appeal relitigating the same issues may be a more effective remedy than principles of res judicata. If the Council applies for an order as to costs and the ERD Court deems it appropriate in all the circumstances, it is open to the court to make an order for costs against this appellant.

I should add that nothing in these reasons should be taken as indicating that the principles of estoppel by res judicata might not apply in respect of other business of the ERD Court. For example, decisions made in respect of enforcement notices issued under s84 of the Development Act, decisions challenging the validity of a development consent, decisions declaring whether an existing use exists (a decision which might be made in proceedings consequent on an enforcement notice), or decisions whether a particular development is one of those listed in the Development Plan as a permitted use in a zone might properly be the subject of the principles of res judicata: see, for example, Canterbury Municipal Council v Belshaw ( 1982) 46 LGRA 423, and PE Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437. It has not been necessary in this appeal to canvass the full extent to which the principles of res judicata might apply in the ERD Court.

Before I conclude these reasons, I express a concern that the Commissioner who is a planner has, of his own motion, raised this issue and determined it despite the opposition of the two parties to the appeal. I think it would have been better had the Commissioner referred this question of law to a Judge of the ERD Court for determination pursuant to the power vested by s15(8) of the Environment Resources and Development Court Act.

In his reasons for decision, the Commissioner has expressed views which indicate conclusions on questions of fact which might be material on a full consideration of the issues. He has also made observations about the evidence given by an expert who was called. Whilst I do not lightly make this decision, I believe it is appropriate in the particular circumstances of this case that the appeal should be heard by another Commissioner in the ERD Court.

For these reasons the appeal will be allowed. The appeal will be remitted to another Commissioner of the ERD Court for hearing and determination. The Council did not plead res judicata and indeed sought to persuade the Commissioner from deciding latter on that ground. For that reason it is not appropriate to make an order for costs in favour of Mrs Thorpe.