Nikolaidis v Pittwater Council - [2009] NSWLEC 227

Reported Decision: 171 LGERA 104

Land and Environment Court

of New South Wales

CITATION: Nikolaidis v Pittwater Council [2009] NSWLEC 227

PARTIES:
APPLICANTS
Leon and Brigitte Nikolaidis
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10473 of 2009

CORAM: Preston CJ

KEY ISSUES: PRACTICE AND PROCEDURE :- abuse of process - motion to dismiss appeal against refusal of development application - prior appeal against refusal of modification application - development the subject of later appeal same as prior appeal - whether abuse of process - appeals different in nature and hence different processes of the court - later appeal not abuse of process.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 78A, 79C, 80, 96 and 97
Uniform Civil Procedure Rules 2005, Part 13 r 13.4

CASES CITED: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Edwards v The Hills Shire Council [2009] NSWLEC 187
Nikolaidis v Pittwater Council [2007] NSWLEC 678
Progress & Securities Pty Limited v North Sydney Municipal Council (1988) 66 LGRA 236
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290
Wiest v The Director of Public Prosecutions (1988) 23 FCR 472
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

DATES OF HEARING: 21 December 2009

EX TEMPORE JUDGMENT DATE: 21 December 2009

LEGAL REPRESENTATIVES:
APPLICANTS
Mr T S Hale SC
SOLICITORS
McLachlan Chilton
RESPONDENT
Mr P W Larkin (barrister)
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

21 DECEMBER 2009

10473 of 2009

NIKOLAIDIS V PITTWATER COUNCIL
JUDGMENT

1 HIS HONOUR: Pittwater Council (“the Council”) is the respondent to an appeal by the applicants under s 97(1) of the Environmental Planning and Assessment Act 1979 (“the Act”) against the decision of the Council under s 80(1) of the Act to refuse the applicants’ development application for the “continuation of raised parapets to eastern extents of roof and part of northern roof” of an existing dwelling house at 4 Princes Street, Newport.

2 The Council by notice of motion dated 20 November 2009 seeks an order that the appeal be dismissed. The ground for dismissal is that the appeal is an abuse of process. The Land and Environment Court possesses power under Part 13 r 13.4(1) of the Uniform Civil Procedure Rules 2005 to dismiss proceedings if the proceedings are an abuse of the process of the court.

3 The Council submits the appeal is an abuse of process because the subject matter of the appeal, the continuation of the parapet, was the subject of previous proceedings heard and determined by the Court in 2007. The previous proceedings involved an appeal under s 96(6) of the Act against the refusal of the Council to an application under s 96(2) of the Act to modify a development consent granted by the Council (N0135/02) to construct a new dwelling. The modification…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 227
Decision Date: 21 December 2009

CaseChat Overview and Summary

The applicants, Leon and Brigitte Nikolaidis, appeal against the refusal by Pittwater Council to approve a development application for the continuation of raised parapets on their property. The Council moves to dismiss the appeal on the ground of abuse of process, given the subject matter of the appeal was previously the subject of a separate appeal in 2007. The court must determine if the current appeal constitutes an abuse of process given the prior appeal.

The key issue is whether the appeal represents an abuse of process by seeking to re-agitate the same development issue that was previously considered and determined by the court. The Council argues that there has been no material change in circumstances and that the current appeal is a collateral attack on the previous decision. The applicants contend that the current appeal is a different process under a different statutory provision and thus not an abuse of process.

The court distinguishes between the two appeals, finding that they involve different statutory processes and thus are not repetitive uses of the same process. The court emphasises that the legislative intent does not preclude the use of different statutory rights to appeal different decisions. The court concludes that the current appeal under section 97 of the Environmental Planning and Assessment Act 1979 is not an abuse of process simply because a different appeal under section 96 was previously heard. The court finds no evidence of illegitimate purpose, oppression, or bringing the administration of justice into disrepute.

The court dismisses the Council's motion to dismiss the appeal and orders that the Council pay the applicants' costs of the motion. The court declines to order an immediate assessment of costs, instead directing that costs be assessed in the usual manner at the conclusion of the proceedings.

Orders