Young v Parramatta City Council [2002] NSWLEC 176

Young v Parramatta City Council [2002] NSWLEC 176

The proceedings were not an abuse of process because the present application was for infill housing for older people or people with a disability under State Environmental Planning Policy No. 5, not the earlier dual occupancy proposal, and the applicable planning circumstances had changed. Parramatta Local Environmental Plan 1993 had been replaced by Parramatta Local Environmental Plan 2001, whose Residential 2(a) zone objectives included an objective encouraging redevelopment of low density housing forms, and the objectives in cll 9 and 10 of State Environmental Planning Policy No. 5 also had to be considered. Those differences meant the matter could not be characterised as merely...

Jurisdiction
Australia
Judgment Date
15 August 2002
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Respondent's Notice of Motion for an Order That the Proceedings Be Struck Out as an Abuse of Process of the Court
Outcome
Respondent's notice of motion dismissed; respondent ordered to pay the applicant's costs of the notice of motion; procedural directions made.
Legal Topics
['development Application Appeal' 'abuse of Process' 'strike Out Application' 'costs' 'state Environmental Planning Policy No. 5' 'residential Zoning Objectives']
['planning and Environment Law' 'practice and Procedure'] ['development Application Appeal' 'abuse of Process' 'strike Out Application' 'costs' 'state Environmental Planning Policy No. 5' 'residential Zoning Objectives']

Case Brief

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Respondent's Notice of Motion for an Order That the Proceedings Be Struck Out as an Abuse of Process of the Court

Legal Issues

  1. 1 ['Whether the present appeal was an abuse of process because it sought to re-agitate issues already determined in prior proceedings concerning the same land' 'Whether the present development application was significantly different from the previous application dealt with by Commissioner Bly' 'Whether changed planning instruments and objectives meant that circumstances had changed' 'Whether costs should be awarded on the notice of motion']

Ratio Decidendi

The proceedings were not an abuse of process because the present application was for infill housing for older people or people with a disability under State Environmental Planning Policy No. 5, not the earlier dual occupancy proposal, and the applicable planning circumstances had changed. Parramatta Local Environmental Plan 1993 had been replaced by Parramatta Local Environmental Plan 2001, whose Residential 2(a) zone objectives included an objective encouraging redevelopment of low density housing forms, and the objectives in cll 9 and 10 of State Environmental Planning Policy No. 5 also had to be considered. Those differences meant the matter could not be characterised as merely...

Court Disposition

Respondent's notice of motion dismissed; respondent ordered to pay the applicant's costs of the notice of motion; procedural directions made.

Orders

  • ['The notice of motion filed 19 July 2002 is dismissed.' "The council is to pay the applicant's costs of the notice of motion." 'The council is directed to file and serve a statement of issues on or before 29 August 2002.' 'The proceedings are to be listed before the Registrar on Friday, 30 August 2002.' 'The...