ABD Holdings Pty Ltd v Council of the City of Sydney
[2013] NSWLEC 45
•09 April 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: ABD Holdings Pty Ltd v Council of the City of Sydney [2013] NSWLEC 45 Hearing dates: 15 November 2012 Decision date: 09 April 2013 Jurisdiction: Class 1 Before: Sheahan J Decision: (1)The Council's Notice of Motion is dismissed,
(2)The respondent Council is ordered to pay the applicant's costs of the motion, unless within 14 days it files and serves a Notice of Motion seeking a different costs order,
(3)The Exhibit may be returned,
(4)The matter will be listed before the Registrar for further case management on Friday 12 April 2013.
Catchwords: DEVELOPMENT MODIFICATION: application by respondent for the dismissal of the modification application made to the court, on the grounds of abuse of process - existing consent embodied in consent orders made by the court - considerations to apply Legislation Cited: Environmental Planning & Assessment Act 1979
Land and Environment Court Act 1979
Uniform Civil Procedure Rules 2005Cases Cited: ABD Holdings Pty Limited v City of Sydney Council [2012] NSWLEC 1261
Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502
Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] 172 LGERA 1
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Blair & Perpetual Trustee Co Limited v Curran (Adam's Will) (1939) 62 CLR 464
Edwards v The Hills Shire Council [2009] NSWLEC 187
Hanna v Council of the City of Ryde [2011] NSWLEC 74
Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4; 119 LGERA 42
Metropolitan Bank Limited v Pooley (1884-5) LR 10 AppCas 210
Nikolaidis v Pittwater Council [2009] NSWLEC 227; 171 LGERA 104
Ord v Ord [1923] 2 KB 432
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236
Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
Rogers v The Queen (1994) 181 CLR 251
Russo v Kogarah Municipal Council [1999] NSWCA 303, 105 LGERA 290
Williams v Spautz [1992] HCA 34; 174 CLR 509Category: Procedural and other rulings Parties: ABD Holdings Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)Representation: Ms S Duggan SC (Applicant)
Mr P Clay SC (Respondent)
Gadens Lawyers (Applicant)
Legal & Governance Division, Council of the City of Sydney (Respondent)
File Number(s): 11016 of 2012
Judgment
Introduction
The respondent Council has moved the court to dismiss the applicant's present proceedings as an abuse of process, pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005, which provides:
13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
As Ms Duggan (senior counsel for the applicant) correctly submitted (see Tp26, LL6-9), the power to dismiss on the grounds of abuse of process is not "a power which the Court would exercise lightly without there being compelling evidence that what is being done...demonstrates an abuse of the process of the court".
Both counsel agree that this is the first occasion on which the question of abuse of process has arisen where this court has been called on to exercise its original jurisdiction, such as is conferred by s 96(8). The onus of satisfying the court of an abuse of process lies on the Council, and is "heavy": Williams v Spautz (1992) 174 CLR 509 at 529.
A detailed chronology of relevant dates can be found in the affidavit of Council's solicitor, Kirsten Morrin, filed 5 November 2012, which is supported by a comprehensive bundle of Council documents (Exhibit C1), which bundle is acceptable to the appellant.
The present proceedings involve a Class 1 application filed by the applicant, ABD Holdings Pty Ltd ("ABD"), on 28 September 2012, to modify, pursuant to s 96(8) Environmental Planning & Assessment Act 1979 ('EPA Act'), a development consent ('DC') granted by consent orders agreed upon at the hearing, and made, in a s 97(1) appeal, by Commissioner Dixon, on 14 August 2012, only 6 weeks earlier: ABD Holdings Pty Limited v City of Sydney Council [2012] NSWLEC 1261.
The learned Commissioner said:
2. ...on the morning of the hearing, the parties advised me that they had resolved most of the contentions in the Council's statement of facts and contentions. They also asked me to adjourn the proceedings to allow the applicant an opportunity to prepare an amended car-parking plan. They indicated that subject to the resolution of that issue it was likely that the appeal could proceed to a Consent Orders hearing.
...
13. ...The parking issue is resolved by the amended car-parking plan prepared overnight. It increases onsite parking and reduces the office space...
14. After a consideration of the relevant planning controls including the Council's DCP and Ms Pont's evidence, I find the amended application acceptable after an assessment under s 79C of the Act. Accordingly, I make the following Orders by consent:...
The Council submits (subs of Mr Clay, senior counsel for the Council, par 3) that the present proceedings are an abuse of process for the following reasons:
(a)they bring the Court into disrepute;
(b)there is an issue estoppel;
(c)there is an Anshun estoppel;
(d)the proceedings are unjustifiably oppressive;
(e)the proceedings may have been commenced for an improper purpose.
At the hearing no submissions were made (by Mr Clay) in support of ground "e".
Section 96, in terms, deals with "Modification of consents-generally", and s 96(8) provides:
(8) Modifications by the Court
The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.
Much has been made, during argument before me, of the distinction between an "appeal" brought under s 97 of the EPA Act, and a "first instance" application for a modification under s 96(8) (see [21] below). The court's Class 1 jurisdiction is defined in section 17(d) of the Land and Environment Court Act 1979 (the 'LEC Act') to include "appeals, objections and applications" under various sections of the EPA Act, including all of ss 96, 96A and 97.
Both parties have also made submissions in respect of the possible relevance of some of the provisions of s 39 of the LEC Act, relevantly those now quoted:
Powers of Court on appeals
(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
...
(7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.
...
The Project
ABD is seeking to convert a rather historic building on Riley Street, Woolloomooloo, for use as a restaurant and commercial office space. The upper level of the building is proposed to be the public seating area for the restaurant, and the lower level would include toilets, support space for the restaurant, and substantial commercial office space.
The Class 1 proceedings before Commissioner Dixon were an appeal against a deemed refusal by Council of the development application ('DA') (s 97(1)).
After an unsuccessful s 34 process and continued negotiations, the parties agreed on consent orders to address the remaining issues - contamination, trading hours, and on-site parking, of which the parking issue was the main matter before the court.
The consent orders were made by Commissioner Dixon, with no need for her to make any findings on merit. The amended proposal endorsed on that appeal configured the lower ground floor of the building to include three parking spaces and a loading bay, and much less office space than had been sought (Exhibit C1, tab14).
The present s 96(8) modification application seeks deletion of the three parking spaces, and a consequential further reconfiguration of the lower ground floor, to include more commercial space. The "evolution" of the planning for the lower ground floor can be seen by the comparison of plans at folios 74 (the original DA), 205 (the plan approved by the consent orders), and 286 (the plan now before the court).
The contentions filed on the applicant's behalf in support of the modification application (tab 18) argue:
(a) that the three onsite spaces are "unnecessary", given the proximity of public transport, the CBD, and public parking facilities,
(b) that the provision of them significantly impacts on the viability of the site and on the likelihood that the heritage building will be restored,
(c) that the reduction of the parking will not affect the servicing of the site,
(d) that the conversion of the three spaces to commercial office space produces a better planning outcome, without adverse amenity impacts, and
(e) that the modifications are in the public interest.
Abuse of Process
For an abuse of process to be demonstrated, there must be multiple applications "more or less precisely the same" (Tp16, LL47-8), the current one of which must come under the same court process and seek determination of the same matters of substance (Duggan subs, par 12).
"Abuse of process" is an "overarching principle" (Clay subs, par 35) - it can be a case of res judicata (as in Ord v Ord [1923] 2 KB 432), issue estoppel (as in Blair & Perpetual Trustee Co Limited v Curran (Adam's Will) (1939) 62 CLR 464), or Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). (See Clay subs, pars 22-26)
Mr Clay concedes (subs, par 76) that in planning law these principles can be difficult to apply without qualification, but it is crucial that the courts must promote confidence in the administration of justice, and they can do so by enforcing the finality of litigation and avoiding the re-agitation of issues that have been determined (subs, pars 72-5).
Of Anshun estoppel, Mr Clay relevantly submits (subs par 25):
The Anshun estoppel principle is that parties must bring forward all material matters for determination in the proceedings, meaning that parties cannot raise in subsequent proceedings matters that could, and should reasonably, have been raised in earlier proceedings. The principle applies even though the matter was not essential to the determination of the earlier proceedings, and consequently is not barred by either doctrine of res judicata or issue estoppel in the strict sense. That is an important consideration when it comes to the application of the principle in a planning case.
Ms Duggan attaches great significance to the difference in the nature of the applications made, or proceedings brought, under s 96, c.f, s 97. Even though both proceedings in this matter concern Council's requirement for on-site parking, she submits that they have quite different jurisdictional requirements and processes, such that the criteria of abuse ([17] above) are not satisfied.
She noted that Preston Ch J, in Nikolaidis v Pittwater Council [2009] NSWLEC 227; 171 LGERA 104 ('Nikolaidis'), observed that the legislative context of the EPA Act anticipates that there may be multiple applications relating to the same site, and/or seeking modifications of an already approved DC. She says (subs par 16) that where that right is being exercised under differing statutory regimes it cannot be viewed as a collateral attack on the court's earlier decision, such that it would be found to be an abuse of process. Preston J said (at [19]-[23], emphasis mine):
19 ...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 ["Progress & Securities"] (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.
In Progress & Securities, Bignold J had held, in dealing with the modification process then covered by s102 of the EPA Act, that, in the absence of a change of circumstances giving rise to the application for modification, the court would be entitled to exercise its discretion to refuse it.
Following amendments to the relevant sections of the Act, Jagot J had cause to consider the new regime in Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502; 148 LGERA 85 ('Arkibuilt'), where the court was asked to exercise its discretion to amend a condition of consent, in the absence of any change in circumstances. Her Honour considered Progress & Securities, and observed (in [68]) that Bignold J had:
...found that although the power in s 102 (then the relevant modification power) was not limited to cases in which circumstances had changed, a discretionary consideration that weighed strongly against granting the application in that matter was the conduct of the applicant in accepting the benefit of the development consent, and then belatedly seeking to avoid the burden imposed by that consent. Bignold J determined that it would be contrary to the public interest to enable the particular consent in that matter to be modified as sought
Her Honour went on to say (in [70]-[71]):
70 In this case, the Court granted the development consent. It seems to me there may be many reasons why, in that context, an applicant may not place in issue the s 94 contributions during the s 97 appeal. I do not consider that an applicant, thereafter, is necessary precluded from seeking to modify s 94 conditions by not having raised the issue during the s 97 appeal. Further, the applicant became aware, only relatively recently, that the Council itself had agreed to the modification of a s 94 condition imposed on a nearby development, which reduced the overall s 94 contributions payable by some 25%. The applicant said that, if necessary, that fact itself constituted a relevant change of circumstances. Consistent with the reasoning in Progress and Securities, I agree that the applicant need not point to any change of circumstances in order to modify the development consent. In the particular circumstances of this case, I can see no reason why I would not exercise my discretion in favour of the applicant, having found that, to a certain extent, condition 69 is unreasonable.
Conclusion
71 I am also satisfied that the amendment of condition 69 is a modification of the development consent authorised by either s 96(1A) or (2) of the EPA Act. The Council has not suggested that such an amendment would have anything other than "minimal environmental impact", or that I should not be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all). I am so satisfied. Otherwise, I assume that the Council has complied with any notification obligations (having regard to the terms of s 96(8), and the absence of any suggestion to the contrary in these proceedings).
In the context, again, of the earlier modification regime, Bignold J had observed, in Makram Constructions Pty Limited v North Sydney Council (2002) 119 LGERA 42 ('Makram'), the important distinction between the appellate and original jurisdictions of the court, in terms of questions of the power of the court under s 39(2) ([10] above). His Honour's analysis, was applied by the now Chief Judge, in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] 172 LGERA 1 ('ALH v Manly'), s 96(8) being by then in force, Preston J referring (at [32]) to the "original application to the Court under s 96(8)".
The Chief Judge said (at [29]-[32]):
29 The Makram case also involved the determination of questions of law preliminary to the hearing on the merits of an application under s 96 of the EPA Act to modify a development consent granted by the Court. The questions of law raised the issue of whether the Court, in hearing and disposing of an application under s 96 of the EPA Act to modify a development consent granted by the Court, could exercise, under s 39(2) of the Court Act, certain functions of the Council under the Road Transport (Safety and Traffic Management) Act 1999. At the time of the Makram decision, s 96AA had not been enacted so as to allow an application to modify a consent granted by the Court to be made to a council. Such an application could only be made directly to the Court. The right of appeal under s 96(6) was then, as it still is now, not available to appeal against a decision of a council in relation to an application to modify a consent granted by the Court. Hence, the modification application in the Makram case was made directly to the Court to modify a consent granted by the Court.
30 Bignold J noted the relevant statutory provisions regulating applications to modify consents granted by the Court and the Court's powers in hearing and disposing of such applications. Bignold J concluded:
"[33] ... Thus, the Court, in determining the applicant's modification application is exercising original and not appellate jurisdiction.
[34] The importance of the foregoing analysis of the facts pertaining to the present proceedings to the operation of the LEC Act, s 39(2) is now readily apparent, because it is the clear purpose and effect of that provision to vest the Court with 'all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter, the subject of the appeal'.
[35] Since in the present case there is no person or body 'whose decision is the subject of the appeal' it follows that the LEC Act, s 39(2) simply has no application to the Court's determination of the applicant's modification application. In particular, it is incapable of vesting in this Court 'for the purposes of hearing and disposing' of the present 'appeal' (namely the modification application) the statutory power conferred by the roads legislation to create a "Works Zone" that is vested in the council, pursuant to the Instrument of Delegation granted by the Roads and Traffic Authority. This is because the council simply has no decision making function in respect of the applicant's modification application."
31 Bignold J's conclusion was readily able to be adapted to the present case. Since there is no person or body "whose decision is the subject of the appeal" it follows that s 39(2) of the Court Act simply has no application to the Court's determination of ALH's modification application. In particular, it is incapable of vesting in the Court "for the purposes of hearing and disposing" of ALH's modification application under s 96(8) of the EPA Act, the statutory power under s 125 of the Roads Act vested in the Council. This is because the Council simply has no decision making function in respect of ALH's modification application.
32 Unfortunately, as I have noted, the judge in determining the separate question in this case was not referred to and did not cite the Makram decision. If the decision had been cited, it may have led to the exposure of the erroneous assumption that the proceedings were an appeal under s 96(6) of the EPA Act rather than an original application to the Court under s 96(8). It may also have led to the separate question being formulated in different terms, and, therefore, being answered differently.
In Russo v Kogarah Municipal Council [1999] NSWCA 303, 105 LGERA 290 ('Russo'), the Court of Appeal held that a then current DA, "being more or less precisely the same" as two earlier applications which the Council had refused, and in which cases this court had dismissed appeals, was an abuse of process and ought not proceed: see Stein JA (with whom Meagher JA agreed) at [9]. Davies AJA added (at [13]-[15]):
13 In the present case, the principle of res judicata did not apply because the application to the Land and Environment Court was brought from a fresh decision of the Kogarah Municipal Council. There was a new cause of action. The principle of issue estoppel is also difficult to apply in the field of town planning. In a case such as the present, it may be difficult to find a point of fact which should be determined once and for all. 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.
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 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.
Russo has been followed in this court, for example, in Edwards v The Hills Shire Council [2009] NSWLEC 187 ('Edwards'), and Hanna v Council of the City of Ryde [2011] NSWLEC 74 ('Hanna'). In Hanna, Craig J also relied upon the principles espoused by the Ch J in Nikolaidis, which had in turn discussed (at [7]-[8]) the principles stated in Russo and later followed in Edwards.
The High Court sought, in Batistatos v Roads and Traffic Authority of New South Wales (2006) HCA 27; 226 CLR 256 ("Batistatos"), to define/confine the notion of "abuse of process". The majority judgment observed (at [9]) that "what amounts to abuse of court process is insusceptible of a formulation comprising closed categories".
Metropolitan Bank Limited v Pooley (1884-5) LR 10 AppCas 210 had long ago recognised that courts must protect themselves from any abuse of process in order to safeguard that administration of justice. The majority in Batistatos noted (at [12]) that "that purpose may transcend the interest of any particular party to the litigation". Their Honours also then cited with approval (at [14]) the following important statement by Gaudron J in Ridgeway v The Queen (1995) 184 CLR 19 ('Ridgeway'):
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'."
Mr Clay submitted (at pars 18 and 21) that the notion "abuse of process" cannot be defined with precision, and that the categories are not closed, "because at the heart of abuse of process is the need for public confidence in the administration of justice". (He recognised that it may be harder to be very precise about abuse "in the context of a broader system of planning"). In this regard, the majority in Batistatos also approved of the following comments by McHugh J in Rogers v The Queen (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.
Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.
At [15] of the majority judgment in Batistatos, the High Court added:
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.
The Council's Submissions on the Motion
The applicant had the opportunity to present evidence in the earlier proceedings on the issue of parking, which was 'determined' by the court by the granting of consent orders. These proceedings are a re-agitation of a central issue raised by Council in those earlier proceedings. Making this direct application to the court "in the absence of anything remotely approaching a change in circumstances is the vice", and allowing it to proceed would abuse the court's processes, and be unfairly oppressive to the Council, bringing the administration of justice into disrepute (subs 62ff).
Mr Clay went so far as to suggest that the applicant's tactic "really stinks" (Tp4, L32), and that the public's reaction would be to say "what a joke" (Tp28, L3).
I have already referred to some of Mr Clay's submissions on issue estoppel, Anshun estoppel and res judicata (see [18]-[20] above). He noted that the Anshun principle requires all material to be brought forward in one proceeding, and not raised in subsequent proceedings, even if the matter was not essential to determination (Tp11, LL15-18), and issue estoppel prevents parties from re-agitating particular issues that were determined previously. The court has the power and a duty to protect itself from abuse of process, and thus safeguard the administration of justice (Tp10, LL3-15). There can be little confidence in the administration of justice, when, following the amendment of plans, consent orders are not a final disposition of the proceedings in any material way (subs par 68).
There is another avenue open to the applicant: it could apply directly to the Council for modification of the DC, and, if that fails, to appeal to the court (Tp14, LL19-30).
Mr Clay submits (par 69) that, with the process that the applicant has instead adopted, the Council has no choice but to participate in the court proceedings, which could have been avoided if the application had first been made to the Council.
Even though Parliament has chosen to insert in the EPA Act the right to proceed under s96(8), that does not preclude the court from holding its exercise to be an abuse of process, given the overriding obligation to ensure public confidence in the system (Tp28, LL9-13, and see Gaudron J in Ridgeway, quoted in [31] above).
The Applicant's Submissions
Ms Duggan concedes that, in the first proceedings, the applicant can be said to have accepted the only DC proffered by the Council, rather than fighting the parking issue (Tp20, LL46-8), but argues that there is no bar, on the authorities, to the applicant then seeking to modify that outcome, by commencing a different type of proceeding.
Section 96(8) permits that course, even though the Parliament's decision in that regard might be "annoying" to the Council, and Ms Duggan submits that the applicant has followed "precisely the process...anticipated by the legislation" (Tp20, LL15-16).
The statutory regime imposes on the s 96(8) power no limitations in terms of timing, nor covering the circumstance that earlier orders were made by consent, nor on the basis of an applicant "fixing something up" (See Tp19, LL46-8). No change of circumstances is required (Tp22, LL17 and LL40-9); the only constraint is that the proposal, once modified, must be "substantially the same" (Tp20, LL2-3).
The deliberate inclusion of s 96(8) means that it must have "work to do" (Tp20, L18). Its proper use cannot be an abuse of the court process (Tp20, LL25-33), or "just not fair" to the Council (Tp20, L40). Nor can its use, in accordance with its terms, "bring the administration of justice into disrepute", by "undermining any determination by the court" (Tp23, LL7 and 50).
Allowing this new process to continue when it is properly engaged actually reinforces public confidence, because it shows the amended Act to be working in the way Parliament intended (Tp24, LL42-4). Council, as the respondent to the new proceedings, is perfectly able to assess the arguments put in support of the modification (Tp24, L48-p25, L10).
Consideration
Council did not determine the original DA, and the applicant exercised its statutory right of appeal against its deemed refusal. The issues were joined and, from the very beginning of the appeal preparation, Council made clear its concern, indeed insistence, about "adequate servicing and parking for the proposed use" (tab 2, fol 97).
Negotiations took place up to and including the first day of the post-s34 hearing before Dixon C. The hearing was adjourned to enable the applicant to amend its plans and agree upon conditions to address the then remaining issues, including the dispute about on-site parking.
Council accepted the applicant's amended proposal on 14 August 2012, and the court was prepared to endorse that agreement, so resolving the Council's continued concerns. Dixon C neither was asked nor was needed to "determine" between no parking, and the parking shown on the amended plans.
The parking argument was not determined; the applicant compromised, and it was settled. It is not fair to assert (as does the September 2012 planning report, at tab 16, fol 221) that either the Council or the court "imposed" a parking condition which will ruin the viability of the project. In this regard I adopt what was said by Mr Clay (at par 61 of his submissions):
Put simply, ABD in the face of parking and servicing issues made an amendment to its plan to obtain consent of the Council for orders to be made by the Court granting development consent rather than contest the issue in the first proceedings.
To revisit the parking issue in a s 96(8) process does not offend the principles of finality to litigation, and there is nothing before me to indicate that the applicant's resort to that process is not "proper".
I find it hard to accept the "oppressive to the Council" submission (see subs par 69, and [34] above), given Council's very firm stand on on-site parking in the original DA assessment and the appeal proceedings. I express no view at all on the merits of the issue raised in the proceedings now before the court, namely deletion of the on-site parking - such merit considerations will be at the heart of the matter when it comes to a hearing, and the September 2012 planning report can be tested at the hearing of the modification application, but, untested, it cannot be the basis for a finding of abuse of process.
Conclusion & Orders
The applicant's submissions are clearly to be preferred, and I generally accept them.
The applicant sought its costs on the motion, and has been entirely successful in resisting it, but the respondent has not yet been heard on the issue.
The orders of the court will, therefore, be:
(1) The Council's Notice of Motion is dismissed;
(2) The respondent Council is ordered to pay the applicant's costs of the motion, unless within 14 days it files and serves a Notice of Motion seeking a different costs order;
(3) The Exhibit may be returned;
(4) The matter will be listed before the Registrar for further case management on Friday 12 April 2013.
Decision last updated: 10 April 2013
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