Australia, June 9 -- New South Wales Land and Environment Court issued text of the following judgement:

1. The Applicant (Mrs Malass) has commenced Class 1 appeal proceedings following the refusal of development application 2024/1 (2024 DA) by Strathfield Municipal Council (the Council) for a property on Boden Avenue Strathfield (the Property). Development consent is sought for the 'Partial demolition of the existing dwelling... including associated landscaping'.

2. The Council has filed a notice of motion seeking to have the appeal dismissed as an abuse of process because the 2024 DA is virtually the same as an earlier development application 2020/239 (2020 DA). The 2020 DA was the subject of Class 1 appeal proceedings resulting in the dismissal of the appeal in Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Malass 2022).

3. As the Council accepted, it bears a heavy onus on the civil standard of establishing abuse of process justifying dismissal of these proceedings.

4. The 2024 DA seeks consent for the use of the existing building, demolition of part of the first floor of the building and some construction. I note that the current building is not lawfully constructed in accordance with a DA granted to Mrs Malass in 2017.

5. Mr Loether solicitor swore an affidavit dated 12 December 2024 which was read in part and sets out the extensive planning and litigation history concerning development at the Property.

6. The parties agreed the following for the purposes of the hearing of the notice of motion:

1) in a quantitative analysis of a comparison of the 2020 DA and 2024 DA plans, differences would be described as minor;

2) in a qualitative understanding of difference, there is disagreement between experts (town planners) on whether that difference is meaningful;

3) for the purposes of the notice of motion I do not need to resolve whether the qualitative differences between the experts are meaningful.

7. As a result of the above agreement the Council did not seek to read affidavits of its planning consultant and parts of Mr Loether's affidavit which referred to that evidence were not read.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196ae31091c12ca82f4c155b)

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