Foster v Sutherland Shire Council

Land and Environment Court (NSW)|2001-02-07|Before: Cowdroy J

The applicant additionally submitted that existing use rights applied since the use of his premises for 'short-term accommodation' pursuant to the repealed Sutherland Local Environmental Plan 1993 was conducted prior to the gazettal of the LEP. However this issue is not relevant to the question of law referred to the Court for determination.

The applicant has applied for costs of this hearing. The Practice Direction 1993 relevantly provides as follows:- 10. Costs in Classes 1 & 2 The Practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional. In the absence of any exceptional circumstances to justify a departure from such Direction the Court makes no order as to costs.

The order dated 4 January 2001 issued by the respondent pursuant to s 121B of the Environmental Planning and Assessment Act 1979 is not a valid order.
The Court orders that the proceedings be listed before the registrar for directions on 14 June 2001.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Foster v Sutherland Shire Council [2001] NSWLEC 89 APPLICANT Foster PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10086 of 2001 CORAM: Cowdroy J KEY ISSUES: Question of Law :- order issued pursuant to s 121B of the EP&A Act requiring appellant to cease using such premises for short term accommodation - terms of order uncertain - order invalid LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B Land and Environment Court Act 1979 s 36(5) Australian Federation of Construction Contractors v Australian Building Construction Employees' and Builders Labourers' Federation (1984) 73 FLR 61; Miller-Mead v Minister of Housing and Local Government & Anor [1963] 2 QB 196 ; Munnich v Godstone Rural District Council [1996] 1 All ER 930 ; North Sydney Municipal Council v Sydney Serviced Apartments Pty Limited (1990-1991) 21 NSWLR 532; CASES CITED: Redland Bricks Limited v Morris [1970] AC 652; Stutchbury v Pittwater Council (1999) 105 LGERA 1 ; Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407; Trade Practices Commission v Walplan Pty Limited (1985) 7 ATPR 47-174; Van Hasteren v South Sydney Council (2000) 109 LGERA 252; Vicbrow v Willoughby City Council (1997) 96 LGERA 288; DATES OF HEARING: 7/5/01 DATE OF JUDGMENT: 06/07/2001

Courts orders are required to formulated in precise terms. In the case of restraining orders, the proscribed conduct must be clearly stated to avoid uncertainty and the potential for continual breaches (see Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407 at 415 per Burchett J; and see also Australian Federation of Construction Contractors v Australian Building Construction Employees' and Builders Labourers' Federation (1984) 73 FLR 61 at 62; Redland Bricks Limited v Morris [1970] AC 652 at 666 per Lord Upjohn). A court order should not leave unresolved the central issue in the case (see Trade Practices Commission v Glo Juice Pty Limited at 415 and see also Trade Practices Commission v Walplan Pty Limited (1985) 7 ATPR 47-174 at 47-176 per Pincus J).

(2001) 115 LGERA 130

(2000) 109 LGERA 252

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