Young Industries Pty Limited v Parramatta City Council
[2000] NSWLEC 266
•12/14/2000
Land and Environment Court
of New South Wales
CITATION: Young Industries Pty Limited v Parramatta City Council [2000] NSWLEC 266 PARTIES: APPLICANT
RESPONDENT
Young Industries Pty Limited
Parramatta City CouncilFILE NUMBER(S): 10918 of 2000 CORAM: Cowdroy J KEY ISSUES: Development :- Appeal against deemed refusal of development application for dual occupancy - notice of motion for appeal to be struck out on the ground of dismissal of prior appeal in respect of virtually identical development - application dismissed as an abuse of process. LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Rules 1970 Pt 13 r 5
Land and Environment Court Act 1979 s 69(2)CASES CITED: Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 unreported ;
Mathers v North Sydney Council [2000] NSWLEC 84 unreported ;
Oshlack v Richmond River Shire Council and Iron Gates Developments Pty Ltd (1998) 193 CLR 72;
Russo v Kogarah Municipal Council (1999) 105 LGERA 290 ;
Walker v North Sydney Council [2000] NSWLEC 211 unreportedDATES OF HEARING: 12/12/00 DATE OF JUDGMENT:
12/14/2000LEGAL REPRESENTATIVES:
APPLICANT
Mr G YoungSOLICITORS
n/aRESPONDENT
SOLICITORS
Mr P Tomasetti (Barrister)
Storey & Gough
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10918 of 2000
CORAM: Cowdroy J
DECISION DATE: 14/12/00
Applicant
Respondent
Background
1. By amended notice of motion, Parramatta City Council (“the council”) seeks an order that these class one proceedings be struck out or alternatively be stayed. The notice of motion is predicated upon the assertion that these class one proceedings instituted by Young Industries Pty Limited (“the applicant”) constitute an abuse of the process of the Court. Part 6 r 1 of the Land and Environment Court Rules 1996 (“the Court Rules”) adopts the provisions of Pt 13, Div 2 of the Supreme Court Rules of New South Wales (“the Rules”). Pt 13 r 5 which is contained in Div 2 of the Rules provides relevantly as follows:-
5 (1) Where in any proceedings it appears before the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) - (b) not relevant
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(c) the proceedings are an abuse of the process of the Court,
2. The applicant is the owner of a residential allotment at 43 Wyralla Avenue, Epping (“the land”). A residential dwelling is erected upon the land. The land is presently zoned Residential 2(a) pursuant to the provisions of the Parramatta Local Environmental Plan 1993 (“the LEP”). Such zone has three specific objectives namely:-
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 of a scale and character compatible with existing residential development.
3. The applicant has attempted to develop the land on previous occasions. In proceedings no 10463 of 1995, the applicant appealed against the council’s refusal of a development application. Such application provided for subdivision of the land, demolition of the existing residence and a construction of an attached two storey dual occupancy dwelling on one of the two lots created by the subdivision. A single storey dwelling on the rear lot was also proposed. Assessor Hussey (now Commissioner Hussey) determined that the proposal to erect a single storey dwelling behind the proposed two storey dwelling ‘ would be somewhat out of character with the surrounding area’ . In his judgment he referred to the general character of the neighbourhood which was characterised by ‘ its quaint cottages , mainly of single storey height on relatively large landscaped lots, which generally had reasonable sized boundary setbacks’ . The Commissioner accepted the submission by council that there was ‘a high degree of intactness with this part of the street that would be disrupted by the proposed development’ . He also took into account council’s evidence that the proposal did not accord with the subdivision pattern in the area. The Commissioner concluded that the proposal was ‘ more likely to detract from the amenity of the neighbourhood than to preserve and enhance it’ . Commissioner Hussey’s judgment was delivered on 27 November 1995.
4. 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.
5. 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.
6. 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’.
The present appeal
7. 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.
8. 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.
Amended plans
9. 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.
10. 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.
The findings
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
Costs
16. The council applies for the costs of these proceedings. The applicant opposes such application.
17. 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.
18. 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.
Orders
19. The Court therefore orders:-
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.
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