Despite a long and fraught litigation history and striking similarities between the two applications, the Court ultimately allowed the new merit appeal to proceed, finding it was not an abuse of process.

The History

Sarah Malass’ Strathfield property has been at the centre of planning disputes for nearly a decade. After securing approval in 2017 for a two-storey dwelling with basement parking and a pool, the built form diverged significantly from the consented plans. The result? A Stop Work Order in 2020, followed by contempt proceedings, multiple appeals, and eventually demolition and vacation orders from the Court.

At the heart of the most recent decision was whether a new development application lodged in 2024 — which proposed partial demolition and sought to regularise the structure — was materially different from a previous development application refused in 2022, or whether it was simply a rerun of an earlier application already determined on its merits

The Council’s Argument

Strathfield Council sought dismissal of the 2024 appeal on the basis that it was an abuse of process and arguing that the Court should not be asked to re-hear issues already determined. The Council pointed out that:

• The 2024 development application was “virtually the same” as the 2020 development application which had been rejected;
• There were no changes to planning controls or the local context;
• The clause 4.6 variation issues were identical to those previously rejected;
• The Council would incur duplicate costs relitigating the same issues;
• Mrs Malass had already been subject to extensive enforcement and contempt proceedings.

The Applicant’s Response

Mrs Malass argued that there were both quantitative and qualitative differences between the 2020 and 2024 development applications — including changes to basement layout, southern façade articulation, and demolition plans. Importantly, she raised a new legal argument not made previously – that a clause 4.6 variation might not be required at all.

She also submitted that the merits of her earlier application were not actually considered, because the application failed solely on the clause 4.6 variation. As such, the new application sought to test the overall merit of the (slightly modified) built form, potentially without the need for a variation at all.

The Court’s Reasoning

Justice Pain acknowledged the Council’s heavy onus to prove abuse of process and reiterated the high bar they needed to overcome. Three categories of abuse were noted:

1. Collateral purpose;
2. Oppressiveness; or
3. Bringing the administration of justice into disrepute.

Only the third category was seriously pursued. Despite the minor nature of the changes, the Court held that:

• The new development application was not identical — some factual and design differences were present;
• The earlier decision did not consider the full merits of the development application;
• Issue estoppel (that is, you can’t re-argue something that’s already decided) does not apply in Class 1 merits appeals;
• Raising a new legal argument (even if it could have been made earlier) did not automatically make the proceedings abusive;
• The cumulative litigation history — though extensive — should not override the applicant’s right to a fresh merit appeal.

The motion was dismissed. The Class 1 appeal lives on..

Key takeaways for Planners and Practitioners

1. Abuse of process is a high bar: Even repeated applications or very similar applications will not necessarily meet the threshold. Minor changes — when combined with new arguments or unresolved merits — can justify a fresh hearing.
2. Issue estoppel doesn’t apply to Class 1 appeals: The structure of our planning legislation allows for reconsideration, so long as the application isn’t a sham or cynical re-litigation.
3. Process history isn’t everything: The broader context of past enforcement, contempt, or civil proceedings may inform but not determine the abuse question in Class 1 of the Court’s jurisdiction.
4. Merit must still be proven: While the appeal survived the abuse challenge, Mrs Malass will still need to justify the development against the applicable controls and, if needed, under clause 4.6.

Conclusion

This decision highlights the tension between preventing vexatious litigation and upholding the statutory right to a merits-based review. For Councils, the decision is a reminder that a well-run Class 1 merits appeal will rarely be struck out, even where the application feels like déjà vu. For applicants, it affirms the importance of crafting new applications carefully and presenting fresh grounds, both factually and legally.