Young Industries Pty Limited v Parramatta City Council

Subsequently a further development application was made during 1999 wherein the applicant abandoned the subdivision of land but instead sought development approval for a dual occupancy development. The application for development approval proposed certain alterations and additions to the existing dwelling and a new single storey attached dwelling to be erected in the rear of the land. Pursuant to the LEP, dual occupancy development is permissible with consent. Council rejected the development application and a class one appeal was made to this Court in proceedings no 10971 of 1999. Commissioner Bly delivered judgment on the 25 July 2000 in which he dismissed the appeal.

Commissioner Bly's judgment is both detailed and comprehensive. He observed that whilst the development proposal was not the same as that which had been refused by the Court, it was very similar and was found to be unacceptable for similar reasons. The learned Commissioner observed that the development, if implemented would achieve a de facto subdivision of the land and that a dwelling in the backyard of a residence did not exist in Wyralla Avenue. Commissioner Bly agreed with the council's town planner that the result of such development would be 'out of character with what exists and with what is anticipated by the draft LEP' . The reference to the 'draft LEP' is a reference to the draft Parramatta Local Environmental Plan 2000 ("the draft LEP"). The draft LEP had been exhibited by council prior to the date of the Commissioner's judgment. The draft LEP has subsequently been adopted by council. Pursuant to the provisions of the draft LEP the land is located in an area in which dual occupancy development will be prohibited.

Commissioner Bly did not consider that the extensions and alterations to the existing house were unacceptable. Rather he considered that the proposed new dwelling located in the back yard was inconsistent with the conservation area which was prescribed by the LEP and was inconsistent with the objective of the 2(a) zone and the ' open landscaped backyard character of the locality would be infringed'.

Within ten days of the delivery of Commissioner Bly's decision the applicant prepared and lodged with council another development application no JD/1144/00 ("the current development application") for a proposed dual occupancy development. The plans accompanying the current development application show the proposed development as comprising the demolition of an existing shed located behind the existing dwelling, and the erection of a house at the rear of the land.

The applicant sought to appeal against council's deemed refusal of the current development application even though the prescribed forty day period from the date of its lodgment had not expired. This application to the Court was successfully challenged by council. Ultimately on 19 May 2000 the applicant properly instituted these proceedings against council's deemed refusal of the current development application.

The applicant has filed a notice of motion which is returnable on 15 December 2000. In such motion the applicant seeks leave of the Court to rely upon an alternate set of plans ("the amended plans") at the hearing of these proceedings. The amended plans have not been considered by the council. By agreement between the parties the Court has determined to expedite the hearing of such notice of motion.

The amended plans show the existing dwelling but no mention is made of the shed which was proposed for demolition. In fact it is not shown at all. As regards the proposed dwelling to be erected at the rear of the existing dwelling there are amendments to the layout which, when considered overall, are minor amendments to the development. In substance, the current application for development is for a dual occupancy residence to be erected in the rear of the existing residence.

A comparison of the plans lodged in support of the application considered by Commissioner Bly and those lodged in support of the current development application are virtually identical. The development proposed remains substantially the same and the only changes are to some dimensions in the proposed dwelling at the rear of the lot.

The critical matter in Commissioner Bly's determination related to the erection of a dwelling in the backyard of the existing residence which he found was inimical to the present planning regime, as well as the proposed planning regime. Commissioner Hussey also found that such development was out of character with the area.

The Court is satisfied that the principles referred to by the New South Wales Court of Appeal in Russo v Kogarah Municipal Council (1999) 105 LGERA 290 at 292, 293 are applicable. The plans considered by Commissioner Bly are virtually the same as those which were lodged in the current development application and those upon which the applicant seeks leave to rely. The statement of issues filed in these proceedings raise issues which are identical to those identified by Commissioner Bly in his judgment. The minor changes made by the applicant to the layout, dimensions and paved areas are of no consequence when considered against the concept of the proposed development. In concept they are also the same as those considered by Commissioner Hussey. Such applications have been determined adversely to the applicant and the current development application seeks in effect to re-litigate the same issues. The Court is satisfied that the appeal should be struck out upon the grounds that the development proposed by the applicant has been considered by the Court, and rejected.

The Court also notes that Commissioner Bly found the proposal to be unacceptable with both the current LEP and the anticipated draft LEP. This Court has held in three recent decisions that the provisions of a draft local environmental plan are to be taken into consideration, especially when there is a degree of certainty that a draft local environmental plan will be implemented: see Mathers v North Sydney Council [2000] NSWLEC 84 unreported; Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 unreported; Walker v North Sydney Council [2000] NSWLEC 211 unreported. Since the draft LEP has been adopted by the respondent there is a high degree of probability that it will be implemented in which event dual occupancy upon the land will be prohibited.

In view of the Court's determination that these proceedings constitute an abuse of process it is unnecessary to address the issues in the notice of motion returnable on 15 December 2000.

The council applies for the costs of these proceedings. The applicant opposes such application.

Following the lodgement of the current development application further details were sought and obtained from the applicant but the council declined to make a determination. Accordingly these proceedings were instituted on the basis of council's deemed refusal of the current development application. Thereafter the preliminary steps for the hearing took place by way of call-overs, preparation of issues for trial and other interlocutory steps. The dates of 16, 17 & 18 February 2001 were allocated for the hearing of the appeal. It was not until the 24 November 2000 that the first notice of to strike out the appeal was lodged.

The Court possesses a wide discretion in its determination to award costs, as invested in it by the provisions of s 69(2) of the Land and Environment Court Act 1979: see Oshlack v Richmond River Shire Council and Iron Gates Developments Pty Ltd (1998) 193 CLR 72. Since the proceedings have progressed and the present notice of motion was not filed until a late stage, it would be unconscionable for the council to be awarded all of its costs for these proceedings. However it is appropriate that the council should be entitled to the costs of the hearing of this notice of motion since such hearing has been successful and has effectively determined the matter. The fact that proceedings are dismissed as an abuse of process constitutes ' exceptional circumstances' as referred to in the 1993 Practice Direction and warrants an order for costs being granted.

1. The class one appeal no 10918 of 2000 be struck out as an abuse of the process of the Court pursuant to the provisions of Part 13 rule 5(1)(c) of the Supreme Court Rules 1970.
2. The applicant pay the costs of the council of the hearing of the notice of motion of 12 December 2000.
3. The applicant's notice of motion returnable before the Court on 15 December 2000 be struck out.
4. No order for costs be made in respect of the applicant's notice of motion returnable on 15 December 2000.
5. The exhibits be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

3. The applicant's notice of motion returnable before the Court on 15 December 2000 be struck out.

4. No order for costs be made in respect of the applicant's notice of motion returnable on 15 December 2000.