Edwards v The Hills Shire Council

[2009] NSWLEC 187

Land and Environment Court

of New South Wales

CITATION:

Edwards v The Hills Shire Council [2009] NSWLEC 187

PARTIES:

APPLICANT:
Michael Edwards

RESPONDENT:
The Hills Shire Council

FILE NUMBER(S):

10483 of 2009

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- Motion to dismiss as an abuse of process a class 1 appeal against development refusal - costs.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 97
Land and Environment Court Rules 2007, r 3.7(2)
Uniform Civil Procedure Rules 2005, r 13.4

CASES CITED:

Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126
Bird v Hawkesbury City Council [2001] NSWLEC 1
Russo v Kogarah Municipal Council [1999] NSWCA 303, (1999) 105 LGERA 290

DATES OF HEARING:

19 October 2009

EX TEMPORE JUDGMENT DATE:

19 October 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M. Baird, barrister
SOLICITORS
Hannaford Lawyers

RESPONDENT:
Mr C. Leggat, SC
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

19 October 2009

10483 of 2009

MICHAEL EDWARDS v THE HILLS SHIRE COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a motion under r 13.4 of the Uniform Civil Procedure Rules 2005 by the respondent, The Hills Shire Council, for an order that these proceedings be dismissed on the ground that they are an abuse of process.

2 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.

3 The new development application the subject of this appeal was lodged with the council on 5 June 2009, within six weeks of the dismissal of the earlier appeal. The current appeal was filed on 21 July 2009 against the council’s deemed refusal of that application. On 4 August 2009, the council determined to refuse the application. The notice of determination to the applicant is dated 10 August 2009. Meanwhile, on 7 August 2009 the council filed its notice of motion for summary dismissal.

4 The motion was listed for hearing before me on 26 August 2009 when, by consent, it was adjourned and directions made, among other things, for the filing of evidence of economic impact on which the applicant wished to rely on the motion and for evidence in response.

5 It is common ground that the relevant legal principles are as stated in Russo v Kogarah Municipal Council [1999] NSWCA 303, 105 LGERA 290 per Davies AJA at [14] – [15]:

“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.

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.”

6 These principles were applied in Bird v Hawkesbury City Council [2001] NSWLEC 1. In that case a merit appeal against a council’s refusal of a development application for a brothel was summarily dismissed as an abuse of process because an identical development application the subject of an earlier appeal to the Court had been dismissed. On the motion for dismissal, the applicant sought to adduce fresh evidence comprising correspondence which had come into existence after the date of the Court’s earlier decision, arguing that it evidenced a change of circumstances. Pearlman J did not agree that the fresh evidence evidenced a significant change of circumstances.

7 In the earlier appeal relating to the subject brothel referred to at [2] above, the Senior Commissioner summarised his conclusions at [128] – [129]:

“I have concluded that the adverse impact concerning neighbouring businesses (that, on the evidence, has already commenced occurring) warrants refusal of the application. I have also concluded that the impact on the amenity of the staff and patrons of the hairdressing business facing Olive Street make a minor contribution to a refusal on a cumulative basis. Similarly, with respect to the gathering of young persons at or their access routes past the brothel to the bus stop on the western side of Old Northern Road to the south of the site is also an adverse impact but not one of such sensitivity as to require refusal in its own right...

However, if I be wrong and the impact that has already commenced (and which I am satisfied is likely to continue into the future) on the adjoining business to the south is insufficient, in its own right, to warrant refusal, I am certainly satisfied that the cumulative effect of all three adverse impacts is sufficient to warrant refusal on the basis of the totality of these impacts.”

8 The applicant submits that, since then, there have been two changes in circumstances. First, the applicant has adduced expert evidence from a Mr Goddard concerning the economic impact of the brothel on nearby businesses. Secondly, there have been some changes, albeit minor, to the development proposal. They were described in a notice of the proposed development sent by the council on 11 June 2009 to owners of other properties in the vicinity, as follows:

“(a) Deletion of the lower ground floor service room [I note it was for disabled patrons and decreased the number of service rooms for sex workers from seven to six]
(b) Deletion of the proposed accessible rear entry ramp in the car park
(c) Reconfiguration of the first floor area
(d) Provision of signage to the front and rear elevations, the signage being restricted to the address of the premises and a phone number
(e) The existing northern boundary fence to the car park to be ‘lapped’ to obscure
(f) An increase in the number of on site car parking spaces from five to six [I note that there was also a removal of a disabled car parking space]
(g) A reduction in the total number of staff on site at any time from 8 to 7 [I note that this involved a reduction in the number of sex workers from seven to six].”

9 The change which the applicant emphasises was the decrease in the number of service rooms from seven to six.

10 The evidence of Mr Goddard is concerned with the economic impact of the proposed brothel. The evidence before the Senior Commissioner on the previous occasion concerning the economic impact of the brothel was uncontradicted evidence by local business owners, which the Senior Commissioner accepted. There was also evidence from town planners which indicated that the brothel would not have an economic impact, but it is apparent that it was not accepted by the Senior Commissioner.

11 The underlying reason for the Senior Commissioner’s decision was, as the applicant accepts, the current and future economic impact of the development. The applicant submits that the addition of further expert evidence on that impact must mean that the circumstances on which the Court would now be required to make its determination have changed. In this way the applicant seeks to put himself outside the statement of principle in Russo that if there has been no significant change in circumstances a new application ought not to be brought. In oral submissions the applicant put the submission this way: that if he sought to adduce new evidence on an issue of central importance then the Court should not exercise its discretion to strike out the proceedings as an abuse of process.

12 The applicant, in the earlier appeal relating to the subject brothel, was on notice that economic impact was an issue well before the hearing of that appeal. He had been served on or about 25 February 2009 with the council’s bundle of documents which contained strong statements to that effect by objectors who appear to have been proprietors of neighbouring businesses. In the circumstances, I do not accept that the addition of further expert evidence such as the applicant now proposes to call from Mr Goddard constitutes a change in circumstances in the sense discussed in Russo. The evidence could have been called in the earlier proceeding. It is unnecessary to explore the full ramifications of the applicant’s oral submission except to note that it appears to raise the unattractive spectre of multiple successive proceedings in which evidence is adduced that could have been called in earlier proceedings.

13 The minor amendments to the development proposal, in my opinion, do not significantly bear on the Senior Commissioner’s reasons for dismissing the previous appeal. The factors material to those reasons have not changed significantly.

14 For these reasons, I have concluded that the proceedings are an abuse of process and that, consequently, the proceedings should be dismissed.

15 The council seeks the costs of its notice of motion and also of a notice of motion filed on 20 August 2009 by the applicant seeking various orders in the event that the council’s notice of motion was unsuccessful. In class 1 proceedings such as these, “The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances”: r 3.7(2) Land and Environment Court Rules 2007.

16 As regards the council’s notice of motion, the circumstance that the proceedings have been dismissed as an abuse of process should generally be sufficient to attract an order for costs in the respondent’s favour under the rule. However, the applicant submits that the following circumstances weigh against or modify that conclusion in the present case. First, the applicant has a different identity from the applicant in the previous proceedings before the Senior Commissioner. That is so; however, the ownership of the premises remains the same and both applicants have the same address and facsimile number and a similar email. I do not consider that this is a significant matter bearing on costs. Secondly, the applicant submits that, if any costs order is made, it should only be for costs after 31 August 2009, being the date on which the council filed its statement of facts and contentions, because until then, it did not fully know what the council’s position was in relation to its June 2009 development application. That statement of facts and contentions was filed pursuant to a direction made when the matter was first listed before me for hearing. The applicant points out that under the Class 1 Development Appeals Practice Note, a council’s statement of facts and contentions is to be filed before the first return of the proceedings. The council argues that it did not have to file the statement because it proceeded expeditiously by successfully moving to have the proceedings summarily dismissed. On a successful motion for dismissal of proceedings as an abuse of process, I do not think that the respondent is generally open to criticism for moving expeditiously and not thereafter proceeding to incur costs on procedural steps that are unnecessary if its motion is successful. Other circumstances, however, are relevant in this case. The council did not give notice of its refusal of the development application until after the notice of motion for summary dismissal was filed. Its notice of determination is dated 10 August 2009. Prior to the filing of the notice of motion on 7 August, no notice was given to the applicant of the council’s position, its reasons and the course it proposed to take. However, after 10 August the applicant was on notice of precisely what the council’s position was in relation to the development application. In the circumstances, I propose to order the applicant to pay the costs of the council’s notice of motion after 10 August 2009.

17 I am not persuaded that it is fair and reasonable in the circumstances to make an order for to the costs of the applicant’s notice of motion. It sought an order that the Senior Commissioner not be appointed as the, or one of the, presiding commissioners to hear the appeal and sought procedural directions concerning the respondent’s non-expert evidence. It was listed before me for hearing with the council’s notice of motion, but the applicant acknowledged that it was inappropriate to press it at that time and that it should be heard on a later occasion.

18 The orders of the Court are as follows:

(1) The proceedings are dismissed.
(2) The exhibits, except for exhibit K, may be returned.
(3) The applicant is to pay the council’s costs after 10 August 2009 of the council’s notice of motion filed on 7 August 2009.
(4) No order for costs of the applicant’s notice of motion filed on 20 August 2009.