Young v Parramatta City Council - [2002] NSWLEC 176

Land and Environment Court

of New South Wales

CITATION: Young v Parramatta City Council [2002] NSWLEC 176

PARTIES:
APPLICANT:
Greg Young
RESPONDENT:
Parramatta City Council

FILE NUMBER(S): (01)0279 of 2002

CORAM: Lloyd J

KEY ISSUES: Practice and Procedure :- abuse of process - strike out - costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97

CASES CITED: Russo v Kogarah Municipal Council (1999) 105 LGERA 290;
Young Industries Pty Ltd v Parramatta City Council [2001] NSWLEC 3;
Young Industries Pty Ltd v Parramatta City Council [2000] NSWLEC 266

DATES OF HEARING: 15/08/2002

EX TEMPORE
JUDGMENT DATE :
08/15/2002

LEGAL REPRESENTATIVES:
APPLICANT:
Mr G Young in person
SOLICITORS:
N/A
RESPONDENT:
Mr P C Tomasetti (barrister)
SOLICITORS:
Storey & Gough

JUDGMENT:

- 4 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(01)0279 of 2002

Lloyd J

15 August 2002

GREG YOUNG

Applicant

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…

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: [2002] NSWLEC 176
Decision Date: 08/15/2002

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a case where Greg Young, the applicant, appealed against the Parramatta City Council's refusal of his development application. The dispute revolved around the deemed refusal of a development application for infill housing for older people or people with a disability. The proposed development involved extensions to an existing dwelling and the construction of a new dwelling at the rear of that existing dwelling at a property in Epping. The council sought to have the proceedings struck out, arguing that the application was an abuse of process. The key legal issues included whether the proceedings constituted an abuse of process and whether the application was significantly different from previous applications that were dismissed.

The court considered the submissions from both parties and examined the previous decisions, including those by Assessor Hussey, Commissioner Bly, and Pearlman J. The court noted that the current application was for a different category of development compared to the previous applications and that the objectives of the relevant zone had changed. The Parramatta Local Environmental Plan 1993 was replaced by the Parramatta Local Environmental Plan 2001, which had different objectives. The court also took into account the objectives of the State Environmental Planning Policy No. 5, which were distinct from those considered by Commissioner Bly. Based on these factors, the court concluded that the circumstances had changed significantly, and the current application was not an abuse of process. The notice of motion filed by the council was dismissed.

The court further considered the issue of costs. It noted the longstanding practice of the Court that no orders for costs are made in planning or building appeals unless the circumstances are exceptional. The court found that bringing a notice of motion such as this was an exceptional circumstance. Therefore, the court ordered the council to pay the applicant's costs of the notice of motion. The court also directed the council to file and serve a statement of issues and listed the proceedings for further hearing.

Orders