Russo v Kogarah Municipal Council [1999] NSWCA 303

Russo v Kogarah Municipal Council [1999] NSWCA 303

The Land and Environment Court erred in recording the matter as res judicata and in answering a purported preliminary question that was in substance a question of fact, but the third development application was for all intents and purposes the same as earlier applications that had already failed and sought to re-agitate matters previously determined. In the absence of significant changed circumstances, the application was an abuse of process of the Land and Environment Court, so the appeal was upheld only to substitute that basis for dismissal.

Jurisdiction
Australia
Judgment Date
13 August 1999
Procedural Posture
Application for Leave to Appeal and Appeal From Orders of the Land and Environment Court / Court of Appeal; Leave to Appeal Granted and Appeal Determined
Outcome
Leave to appeal granted; appeal upheld in part; Land and Environment Court orders 1 and 2 set aside; substituted order dismissing the Land and Environment Court appeal as an abuse of process; Court of Appeal appeal otherwise dismissed with costs.
Legal Topics
['development Application' '4(b) Light Industrial Zoning' 'childcare Centre Permissibility' 'res Judicata' 'issue Estoppel' 'abuse of Process' 'preliminary Question of Law']
['planning and Environment Law' 'civil Procedure'] ['development Application' '4(b) Light Industrial Zoning' 'childcare Centre Permissibility' 'res Judicata' 'issue Estoppel' 'abuse of Process' 'preliminary Question of Law']

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Procedural Posture

Application for Leave to Appeal and Appeal From Orders of the Land and Environment Court / Court of Appeal; Leave to Appeal Granted and Appeal Determined

Legal Issues

  1. 1 ['Whether the proposal for a childcare centre was permissible within the 4(B) Light Industrial zoning pursuant to the Kogarah Planning Scheme Ordinance.' 'Whether the Land and Environment Court erred in treating the subject matter of the appeal as res judicata.' 'Whether the repeated development application was an abuse of process of the Land and Environment Court.' 'Whether new arguments concerning light industry and Development Control Plan No 15 could be raised on appeal.']

Ratio Decidendi

The Land and Environment Court erred in recording the matter as res judicata and in answering a purported preliminary question that was in substance a question of fact, but the third development application was for all intents and purposes the same as earlier applications that had already failed and sought to re-agitate matters previously determined. In the absence of significant changed circumstances, the application was an abuse of process of the Land and Environment Court, so the appeal was upheld only to substitute that basis for dismissal.

Court Disposition

Leave to appeal granted; appeal upheld in part; Land and Environment Court orders 1 and 2 set aside; substituted order dismissing the Land and Environment Court appeal as an abuse of process; Court of Appeal appeal otherwise dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'Uphold the appeal in part and set aside orders 1 and 2 made by the Land and Environment Court on 14 August 1998 and substitute for those orders an order that the appeal be dismissed as an abuse of process of the Land and Environment Court.' 'The appeal before the Court of Appeal should be...