Edwards v The Hills Shire Council [2009] NSWLEC 187

Edwards v The Hills Shire Council [2009] NSWLEC 187

The appeal was an abuse of process because the earlier appeal concerning the same proposed brothel had recently been dismissed on grounds including economic impact, the proposed expert evidence on that issue could have been called in the earlier proceeding, and the minor amendments to the proposal did not significantly affect the reasons for the earlier dismissal. It was fair and reasonable to order the applicant to pay the council's costs of its notice of motion only after 10 August 2009, when the applicant had notice of the council's determination and position, but not fair and reasonable to order costs of the applicant's notice of motion.

Jurisdiction
Australia
Judgment Date
19 October 2009
Procedural Posture
Class 1 Merit Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Respondent's Notice of Motion for Summary Dismissal as an Abuse of Process and Costs
Outcome
Proceedings dismissed as an abuse of process; costs ordered in part.
Legal Topics
['development Application Refusal' 'brothel Development' 'abuse of Process' 'repeated Applications' 'summary Dismissal' 'costs in Class 1 Proceedings']
['environmental Planning and Assessment' 'practice and Procedure' 'costs'] ['development Application Refusal' 'brothel Development' 'abuse of Process' 'repeated Applications' 'summary Dismissal' 'costs in Class 1 Proceedings']

Case Brief

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Procedural Posture

Class 1 Merit Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Respondent's Notice of Motion for Summary Dismissal as an Abuse of Process and Costs

Legal Issues

  1. 1 ['Whether the Class 1 appeal should be dismissed as an abuse of process because it re-agitated issues determined in an earlier appeal concerning a brothel at the same location.' 'Whether further expert evidence on economic impact constituted a significant change in circumstances since the earlier decision.' 'Whether minor amendments to the development proposal constituted a significant change in circumstances.' "Whether costs should be ordered in favour of the council on its notice of motion and in relation to the applicant's notice of motion."]

Ratio Decidendi

The appeal was an abuse of process because the earlier appeal concerning the same proposed brothel had recently been dismissed on grounds including economic impact, the proposed expert evidence on that issue could have been called in the earlier proceeding, and the minor amendments to the proposal did not significantly affect the reasons for the earlier dismissal. It was fair and reasonable to order the applicant to pay the council's costs of its notice of motion only after 10 August 2009, when the applicant had notice of the council's determination and position, but not fair and reasonable to order costs of the applicant's notice of motion.

Court Disposition

Proceedings dismissed as an abuse of process; costs ordered in part.

Orders

  • ['The proceedings are dismissed.' 'The exhibits, except for exhibit K, may be returned.' "The applicant is to pay the council's costs after 10 August 2009 of the council's notice of motion filed on 7 August 2009." "No order for costs of the applicant's notice of motion filed on 20 August 2009."]