Nikolaidis v Pittwater Council [2009] NSWLEC 227

Nikolaidis v Pittwater Council [2009] NSWLEC 227

The appeal under s 97(1) relates to a different statutory process and different application than the previous s 96(6) modification proceedings; exercising a right of appeal under s 97(1) for the refusal of a development application is not an abuse of process, nor a collateral attack on the s 96(6) decision.

Parties
Applicant: Leon Nikolaidis; Applicant: Brigitte Nikolaidis; Respondent: Pittwater Council
Jurisdiction
Australia
Judgment Date
21 December 2009
Procedural Posture
Motion to Dismiss (within Development Appeal) / Interlocutory (motion to Dismiss for Abuse of Process)
Outcome
Council's motion dismissed; costs to applicants; no order for costs to be assessed forthwith
Legal Topics
Abuse of Process, Development Applications, Appeals, Modification of Development Consent
Planning and Environment Law Civil Procedure Abuse of Process Development Applications Appeals Modification of Development Consent

Case Brief

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Parties

Leon Nikolaidis

Applicant

Brigitte Nikolaidis

Applicant

Pittwater Council

Respondent

Procedural Posture

Motion to Dismiss (within Development Appeal) / Interlocutory (motion to Dismiss for Abuse of Process)

Legal Issues

  1. 1 Whether the applicants' appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 is an abuse of process due to earlier proceedings relating to the same development proposal
  2. 2 Whether exercising appeal rights under s 97(1) after an earlier s 96(6) appeal constitutes an improper collateral attack

Ratio Decidendi

The appeal under s 97(1) relates to a different statutory process and different application than the previous s 96(6) modification proceedings; exercising a right of appeal under s 97(1) for the refusal of a development application is not an abuse of process, nor a collateral attack on the s 96(6) decision.

Court Disposition

Council's motion dismissed; costs to applicants; no order for costs to be assessed forthwith

Orders

  • The Council's notice of motion dated 20 November 2009 is dismissed.
  • The Council is to pay the applicants' costs of the motion.