Russo v Kogarah Municipal Council

(1999) 105 LGERA 290; [1999] NSWCA 303

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Abuse of process
3. › Repeated applications to court
4. › Substantially identical development applications
5. › Whether repeated applications to re-agitate issues already determined constitute abuse of process
6. › Whether minor changes to application or reliance on arguments not previously put preclude finding of abuse
1. Practice and Procedure
2. › Res judicata
3. › Town planning context
4. › Whether res judicata applies where fresh council decision creates new cause of action
5. › Distinction between res judicata and abuse of process
1. Practice and Procedure
2. › Issue estoppel
3. › Town planning context
4. › Whether issue estoppel applies where circumstances may change
5. › Difficulty of identifying issue determined once and for all
1. Land and Environment Law
2. › Development applications
3. › Preliminary questions of law
4. › Whether consistency of development with zone objectives is question of law or question of fact

Quick Take

Repeated substantially identical development applications to the Land and Environment Court constitute an abuse of process where the issues have already been determined and there has been no significant change in circumstances. The making of minor changes to the application or reliance on arguments not previously put does not preclude a finding of abuse. Res judicata does not strictly apply in the planning context because each fresh council decision creates a new cause of action, but the abuse of process doctrine fills this gap. Whether a proposed development is consistent with zone objectives is a question of fact, not law.