Young v Parramatta City Council

15 August 2002 GREG YOUNG Applicant v PARRAMATTA CITY COUNCIL Respondent EXTEMPORE JUDGMENT On motion for an order that the proceedings be struck out

1 HIS HONOUR: This is a notice of motion by the respondent, Parramatta City Council (hereafter "the council"), for an order that the proceedings be struck out as an abuse of process of the Court. 2 The proceedings comprise an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("The EP&A Act") against the deemed refusal of a development application described as "infill housing for older people or people with a disability pursuant to State Environmental Planning Policy No. 5". 3 The proposed development comprises extensions to an existing dwelling and the construction of a new dwelling at the rear of that existing dwelling at a property known as No. 43 Wyralla Avenue, Epping. 4 The facts which give rise to the notice of motion may be briefly described. On 27 November 1995 in proceeding No. 10463 of 1995 Assessor Hussey, as he was then called, dismissed an appeal brought by the applicant, Mr G R Young, under s 97 of the EP&A Act against the council's decision to refuse his application to subdivide the property into two lots to enable the subsequent erection of a single storey dwelling and an attached two storey dual occupancy on the new lots. 5 Assessor Hussey found that the proposed dwelling on the proposed rear new lot would be somewhat out of character with the surrounding area. In his decision he refers to the general character of the neighbourhood. I quote from p 6 of the decision: The residents describe the general character of this neighbourhood, where they were attracted to its quaint cottages, mainly of single storey height on relatively large landscaped lots, which generally had reasonable side boundary setbacks. 6 The Assessor accepted that there is a high degree of intactness with this part of the avenue and which would be disrupted by the proposed development. He also took into account the council's evidence that the proposal did not accord with the subdivision pattern in the area. The Assessor concluded that the proposal was more likely to detract from the amenity of the neighbourhood than to preserve and enhance it. 7 On 25 July 2000 in proceeding No. 10971 of 1999 Commissioner Bly dismissed an appeal under s 97 of the EP&A Act against the council's decision to refuse an application for dual occupancy development on the land. The applicant's proposal then before the Court was for alterations and additions to the existing dwelling and erection of a new single storey dwelling on the rear part of the land behind the existing dwelling. 8 Commissioner Bly agreed with the council's town planner that the result of such development would be out of character with what exists in the area and what is anticipated by "the then draft LEP". "The then draft LEP" was a reference to the draft Parramatta Local Environmental Plan 2000. I note that this draft has subsequently become Parramatta Local Environmental Plan 2001. The Commissioner also found that the proposal would not be consistent with the objective of Residential 2(a) zone of the planning instrument and the open landscaped backyard character of the locality would be infringed. 9 On 2 February 2001 Pearlman J dismissed an appeal against Commissioner Bly's decision that had been brought pursuant to s 56A of the Land and Environment Court Act 1979: Young Industries Pty Ltd v Parramatta City Council [2001] NSWLEC 3. I need not refer to the detail of her Honour's judgment for the purpose of this proceeding. 10 Within about ten days of the date of Commissioner Bly's decision the applicant lodged a further development application with the council relating to the subject property. This development application was for a dual occupancy dwelling at the rear of the property with no alterations to the existing dwelling facing the street frontage. It seems that an appeal was brought against the failure of the council to determine the developments application. 11 The council then brought a notice of motion for an order that an appeal against the failure to determine that application be struck out as an abuse of process of the Court. That notice of motion was heard and determined by Cowdroy J on 14 December 2000: Young Industries Pty Ltd Parramatta City Council [2000] NSWLEC 266. Cowdroy J noted the previous decisions of Assessor Hussey and Commissioner Bly; noted that the development application with which he was concerned was virtually identical with that which was considered by Commissioner Bly; and applying the decision of the Court of Appeal in Russo v Kogarah Municipal Council (1999) 105 LGERA 290 found that the proceeding was an abuse of process of the Court and made an order that the appeal be struck out. 12 The applicant on the present notice of motion, the council, again relies upon the Court of Appeal's decision in Russo v Kogarah Municipal Council. There are two statements in particular in that judgment upon which the council relies. The first is at p 292 in the judgment of Stein JA: 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. 13 The second statement is at p 293 in the judgment of Davies AJA: 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. 14 The question in the present case is whether or not the application now before the Court is significantly different to previous application dealt with by Commissioner Bly and whether or not it will involve the re-agitation of issues which have, as a matter of substance, already been determined in the prior decision. 15 Mr G Young, who appears for himself, points out that there are different circumstances surrounding the two applications. The present application is not for dual occupancy development. It is, as I have said, for "infill housing for older people or people with a disability pursuant to State Environmental Planning Policy No .5". That is identified as a separate category of development from dual occupancies in the zoning table which applies under the relevant zone (Residential 2(a) under the current environmental planning instrument, namely, Parramatta Local Environmental Plan 2001. 16 Mr Young also relies upon the fact that other circumstances have changed since the making of other application. The Parramatta Local Environmental Plan 1993 which was in force when Commissioner Bly determined the matter is now no longer in force. It has been repealed. The current planning instrument is the Parramatta Local Environmental Plan 2001. 17 Mr Young points to the objectives of the relevant zone and says that they are different from those under the previous environmental planning instrument. The objectives of Residential 2(a) zone which were considered by Commissioner Bly are as follows: (a) To provide for low density residential development; and (b) To preserve and enhance the character and amenity of established residential areas; and (c) To provide for other types of development which are appropriately located in a residential zone and are of a scale and character compatible with existing residential development. 18 Under the present instrument the zone objectives are as follows: (a) To enhance the amenity and characteristics of the established residential area; (b) To encourage redevelopment of low density housing forms including dual occupancy development where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area; (c) To ensure that building form including that of alterations and additions is in character with the surrounding built environment; (d) To provide opportunities for people to carry out a reasonable range of activities from their homes where such activities will not adversely affect the amenity of the neighbourhood; (e) To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors and residential neighbourhoods. 19 Mr P C Tomasetti, who appears for the council, submits that there is no difference in substance between the objectives under the former planning instrument as they apply to Residential 2(a) zone and the objectives under the present instrument as they apply to the same zone. 20 There is, it seems to me, however, a significant difference. Objective (b) is somewhat changed. No longer is there an objective to preserve the character and amenity of established residential areas. Instead, the objective is to encourage redevelopment of low density housing forms including dual occupancy development. This is in my view, a completely different circumstance to that which was considered by Commissioner Bly. 21 There is another matter. The application is brought pursuant to State Environmental Planning Policy No. 5. Regard must also be had to the objectives of that instrument. Those objectives are set out in cll 9 and 10 of the Policy. They are again different and, I must say, quite different from the zone objectives set out in the instrument with which Commissioner Bly was concerned. 22 These circumstances, I think, are sufficient to come within what was said by Davies AJA in Russo v Kogarah Municipal Council (at 293): Circumstances change. The issue whether a development is consistent with a zoning may turn upon the facts as they exist when the issue comes to be decided." 23 From what I have said it appears to me that circumstances have changed and in the light of the different objectives and the different application now before the Court I do not think it can be said that the present appeal brought by Mr Young is an abuse of process. Accordingly, the notice of motion filed 19 July 2002 is dismissed. 24 Mr Young applies for the costs of the notice of motion. The longstanding practice of the Court is that no orders for costs are made in planning or building appeals unless the circumstances are exceptional. In my opinion the bringing of a notice of motion such as this is not part of the building or planning appeal and is itself an exceptional circumstance. That much was recognised and accepted by Cowdroy J when he granted the council's application to dismiss the proceedings as an abuse of process in December 2000, with costs. 25 Accordingly, there will be an order that the council pay the applicant's costs of the notice of motion. 26 I direct the council to file and serve a statement of issues on or before 29 August 2002, and the proceedings to be listed before the Registrar on Friday, 30 August 2002. 27 The exhibits may be returned. I hereby certify that the preceding 27 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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