Burwood Council v Dixon and Anor.

The Court has before it two competing Motions which, by consent, have been heard one after the other with evidence in the one tendered afresh in the other.

The first Motion is a Motion brought by the Respondents in class 4 proceedings in which the Council claims a permanent injunction to restrain the use of the premises as a brothel without consent of the Council.

The Motion seeks a stay upon the basis of a pending s 56A appeal brought in proceedings 10657of 2001 which involved an appeal to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the decision of the Council not to grant development consent to the establishment of a brothel at premises known as No 4 Burleigh Street, Burwood.

By his decision handed down on 7 February 2002, Commissioner Bly dismissed the appeal and refused the development consent sought.

On 28 February, that is three weeks later, an appeal pursuant to s 56A of the Land and Environment Court Act 1979 was filed against the decision of Commissioner Bly. A copy of the Notice of Motion filing the appeal and stating the grounds of the appeal are annexed to the affidavit of the Respondent's Solicitor, Mr Gino Anthony Russo, sworn 28 February 2002.

In that notice of Motion the Applicant for development consent appealed against the whole of the Commissioner's decision and seeks an order that the appeal refused by the Commissioner be upheld.

The grounds set out in support of the Motion bringing the appeal are wide ranging and there is no need for me to go into them, save to say that the Council, in opposing the stay application, conceded (and in my respectful opinion properly conceded) that the appeal grounds were not trivial or frivolous and indeed raised arguable points.

However, it was submitted that the grounds of the appeal did not self-evidently attest to the strength of the appeal and the Council was content to evaluate the appeal on the grounds stated for appeal as being "arguable". In my opinion, that is a fair assessment of the grounds of appeal having regard to a consideration of the reasons for judgment of Commissioner Bly.

That appeal has been stood over to 4 April 2002, (ie next week) because the Appellant is awaiting a transcript of the evidence before the Commissioner, and on that occasion, I would expect that directions can be given for the prosecution of the appeal and perhaps the obtaining of a hearing date.

The principal basis for the stay application was said by the Respondents to preserve the integrity of the appeal process and to enable the Respondents in the class 4 proceedings to exercise their rights to appeal against the decision of the Commissioner in the planning appeal. In opposing the stay application, the Council has drawn attention to the fact that the use of the premises as a brothel remains unlawful and that unlawful use should not be continued.

The original basis for the Court not hearing the Council's claim to injunctive relief in relation to the use of the premises as a brothel without consent, is founded upon the Court's practice as reflected in the Practice Direction par 8, dealing with the subject of concurrent proceedings. It provides in sub-paragraph (a):, Where proceedings are pending in the Court between the same parties and on the same subject matter in classes 1 and 2 in class 4 of the Court's jurisdiction, the proceedings in class 1 and/or 2 shall unless the Court otherwise orders be determined prior to the proceedings in class 4 of the Court's jurisdiction.

Sub-paragraph (b) provides, by way of exception perhaps, the following:- The direction contained in paragraph (a) which provides for the hearing of the class 1 matter and its determination prior to the hearing of the class 4 matter shall not prevent a judge making orders for interlocutory relief in the class 4 proceedings.

Until the decision of Commissioner Bly on 7 February 2002, the Council had made no application for interlocutory relief in the class 4 proceedings which it had filed on 18 July 2001 and the Council had not, so it seems, opposed the Court adopting its standard practice reflected in the Practice Direction of first determining the class 1 appeal.

The Court's practice is long-standing and reflects the fact that the Environmental Planning and Assessment Act, s 124(3) has always provided the opportunity for the obtaining of consent ex post facto in a case involving a breach of the Act which is constituted merely by the failure to obtain that consent.

The question that really arises in the present case, though not fully debated before me, concerns the question whether the Court's Practice Direction par 8 should be extended to cover a case such as the present, namely where there is a determination of the Class 1 proceedings (in this case Commissioner Bly's decision on 7 February refusing development consent) but where there is lodged against the decision an appeal pursuant to the Land and Environment Court Act, s 56A. The question posed by that scenario, which is not directly answered or dealt with in par 8 of the Court's Practice Direction, is whether the practice should include the opportunity for the class 1 proceeding to be re-determined as a result of a successful appeal under s 56A. Or to put it another way, what is meant by the Practice Direction, when it requires the determination of the class 1 proceeding "prior to the class 4 proceedings".

I am not aware of the question ever having been raised in this context previously. However, I am of the opinion that logic and fairness would support the view that the Court's practice is founded upon there being first obtained a final determination of the Class 1 proceeding before the Class 4 proceeding is heard and determined.

This would mean in the present case that the unsuccessful Applicant in the Class 1 proceeding, having filed an appeal pursuant to the Land and Environment Court Act, s 56A should ordinarily be given the opportunity to obtain a favourable determination of the Class 1 proceeding, via the s 56A appeal process.

I note that the s 56A appeal filed in the present case seeks an order on the hearing of the appeal that the appeal be allowed. But that might be a somewhat ambitious claim and if the appeal were to be successful, in all probability it would need to be remitted to be re-heard by the Commissioner. I think Mr Thompson, Counsel for the Respondents, rather acknowledges that to be the reality of such an outcome of a successful s 56A appeal when he addressed me earlier today.

Be that as it may, I would generally accept the proposition which supports the Respondent's application for a stay by reference to par 8 of the Court's Practice Direction.

However, there are two qualifications that need to be immediately noted. Firstly, as the Practice Direction indicates, the practice of a determination of the Class 1 proceeding occurring before the hearing of the Class 4 does not prevent a Judge of the Court from making interlocutory orders for granting interlocutory relief in the Class 4 proceedings. In the present case, the Court now has before it an application for interlocutory relief.

However, no such application was made when the proceedings were first filed in July 2001 and in truth, the application now jumps out of the ground simply as a result of the Commissioner's decision to refuse development consent.

The question is - should the Court grant the interlocutory relief now claimed, albeit belatedly by the Council, following the decision of the Commissioner to refuse the development application on the merits?

In my view, given the litigation history, in principle the faculty recognised by par (b) of cl 8 of the Practice Direction ought not be granted in the present case, principally because the proceedings have been on foot since July 2001 and the claim to interlocutory injunction is made belately.

The Class 4 proceedings have been held in abeyance pending the outcome of the Class 1 appeal, brought by the Respondents in the Class 4 proceedings and it is only following the decision of Commissioner Bly refusing development consent that an application for interim relief now arises.

In my view, application of the Court's practice to the present case justifies the continued holding in abeyance of the Class 4 proceedings until there is a final determination of the Class 1 appeal. That means in practical terms, at least until the s 56A appeal is heard and determined. If that appeal fails, then within the Practice Direction one would think it reasonable to conclude that there has been a final determination of the Class 1 proceeding and nothing would then stand in the way for the Class 4 proceeding being prosecuted by the Council.

The question then is what is now to be done with the Council's application for injunctive relief in the Class 4 proceedings? In a sense, the two matters can be dealt with together today because the appropriate solution really covers both situations.

Rather than grant a stay of the Class 4 proceedings, because of the operation of the Court's Practice Direction par 8, I think it would be preferable to deal with the matter by way of a suspension of the injunction for a period of six months, the grant of which is not opposed by the Respondents in the Class 4 proceedings.

In my view, that amount of time will be sufficient for the Respondents to the Class 4 proceedings to pursue with due diligence their s 56A appeal. If perchance that appeal was successful, and the matter was remitted for further hearing which was to occur outside the six month period, then obviously the suspension should be capable of being extended. And to that end, liberty to apply on three day's notice would be granted.

THOMPSON: If I didn't make it clear to you when I addressed on the class 4 proceedings, there was no concession that that order ought to be made. The primary position was the stay should be granted, interlocutory would be in opposition to the stay and that's cancelled out, but if your Honour were minded to go to the class 4 that would be discretion that we would ask you to exercise.

HIS HONOUR: Thank you Mr Thompson. In the light of that submission I should note that the Respondents in the class 4 proceedings have not conceded the appropriateness of the grant of relief against them and have urged me to arrive at result via an adjudication on the stay application. I can understand the reasons for the Respondents putting their case in that fashion.

Although it would mean that the class 4 proceedings will not be capable of final disposal at this stage by appropriate orders, nonetheless the position of the Respondents in those class 4 proceedings should not be pre-empted.

Accordingly I return then to consider in the light of my analysis of the case by reference to par 8 of the Court's Practice Direction, what is the appropriate decision on the stay application.

In my judgment, the stay application should be granted initially only for a period of four months which will be sufficient time for the prosecution of the s 56A appeal. If within that time, for reasons not involving any dilatoriness (or other factors) for which the Respondents must take blame the matter has not been concluded, then again liberty to apply should be reserved to the Respondents in order that the stay be extended to enable the finalisation of the Class 1 proceedings.

Although the outcome that I had earlier suggested prior to Mr Thompson's further submissions, had the advantage of resolving the class 4 proceedings, I ought to say that in exercising my discretion on the stay application, basically by reference to the Court's practice in par 8 of the Court's Practice Direction, I have also taken into account the Council's competing case and argument advanced on the Class 4 proceedings. That is, whether or not in the exercise of the Court's discretion any injunctive relief would be granted, at the very least, in all of the circumstances where the unlawful use has been conducted for a period of 18 years and has been found by Commissioner Bly to be conducted "discreetly", "low scale operation", which "in a physical sense fits into the neighbourhood", "no conflict with a variety of land uses in the area". Notwithstanding his determinative finding on social impact of the proposal, given those essential facts, it would in my judgment be inconceivable that an injunction would go immediately without a significant suspension of it.

So that although ultimately because I am asked to decide firstly the stay application (and my decision on the stay application means it is not necessary to visit the Council's injunction application) I have nonetheless factored into the stay of four months initially granted, my assessment that if the Class 4 proceedings were to have been concluded by orders made today, a minimum suspension of six months in all of the circumstances was self-evidently warranted.

Accordingly, for all of the foregoing reasons I do propose to grant the stay, initially for a period of four months in order to enable the expeditious prosecution of the pending s 56A appeal against Commissioner Bly's decision.

I grant liberty to the Respondent to the Class 4 proceedings to apply for a further stay in the event of the anticipated completion of the s 56A appeal not being completed within the four month period and I order that the Class 4 proceedings be held in abeyance pending the outcome of the s 56A appeal and the stay granted in relation to the Class 4 proceedings.

THOMPSON: Your Honour, we'd seek an order for costs. The application was opposed and we'd submit to you it has been fully argued and contested and there is one that should have an order for costs.

PICKLES: That would be opposed your Honour. We would say that the stay has been partially successful. What was sought was a stay of ten months. It was always the Council's position that whether there be final orders made or a stay granted, then the stay or the final orders should be suspended for a much shorter time. The time has come down somewhere in between the two and in the circumstances, the class 4 proceedings still have not been finally determined. The Council also has an interest, undoubtedly a public interest, in bringing forward its application to restrain unlawful uses and furthermore I should say that the 56A appeal was lodged on 28 February which was after the Council made its notice of Motion to restrain the use. And the application for stay came on afterwards. Yes it was opposed. Of course it was opposed because the Council seeks to enforce the planning law. On that basis no order for costs, we would say.

Following the announcement of my decision on the Respondent's stay application and my adjudication on the Council's competing application for injunction in the Class 4 proceedings, Counsel for the Respondents, successful on his stay application, has sought an order for costs which is opposed by the Council. In all of the circumstances, I think it is appropriate that there be no order for costs in the proceedings notwithstanding that the stay application has ultimately been successful for reasons that I have given.

As earlier mentioned, my preference for dealing with the matter would have also been to have dealt with the Council's Class 4 proceedings application for injunction to finally dispose of those proceedings and suspend the order for six months.

However, no doubt for good reasons, Counsel for the Respondents urged me only to decide the stay application and not to proceed with the Council's application unless the stay application failed. The stay application has been ultimately successful, yet the Council's opposition and pressing of its case for an injunction in the class 4 proceedings has been reasonable.

For all of the reasons that I have given in relation to the proceedings considered as a whole, in my judgment there should be no order for costs.

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