C THAT the review of the DCP have regard to the history associated with the site in order to develop appropriate controls to minimise the intensity of any impact.
9 On 21 May 2008, the second respondent with the consent of the third respondent (joint owners of the premises) made a development application for development described as "continuation of local café and take-away food shop". I also observe that the council appears to be in favour of the rezoning and the continued operation of the café. The voting in favour of the resolution that I have described was eight in favour and one against.
10 The application to vacate the hearing dates is put on these bases:
i) There is no ongoing breach of the Act. The café is not presently operating and the respondents offer the undertaking not to use the premises for that purpose until further order, so that there are no adverse environmental consequences and no prejudice will be suffered by the applicants.
ii) Section 124(3) of the Act directly applies. A development application has been lodged. Section 72J of the Act allows the making of a development application even though the use is presently prohibited.
iii) The council has resolved to rezone the property in its new comprehensive local environmental Plan for the express purpose of allowing the ongoing use of the Thomas St Café.
iv) There has been a slippage in the timetable so that the case is not ready for hearing. In particular, the applicant's affidavit in reply has raised a new issue which the respondents will have to meet.
v) The listed 4 day hearing will achieve little but consume considerable costs in debating a dead issue while the café is closed and which would not be an efficient use of limited public resources.
11 Counsel for the first, second and third respondents rely upon the judgment of Kirby P in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67, in which his Honour held that where an application is made under s 124(3), the discretion provided by the section must be exercised according to its terms and having regard to its purposes. Kirby P also said that it is the duty of the court to consider whether, and in what circumstances, the relief provided for in that sub-section should be granted.
12 In determining a motion such as this the court should exercise its discretion in accordance with settled principles. A number of the authorities to which reference has been made are cases in which there is no equivalent of s 124(3), as in the present case. Nevertheless, the guiding principle is that a proposed change in the law is not a proper consideration in the exercise of a discretion to grant an adjournment and does not qualify in any way the obligation of the judiciary to uphold the existing law: see Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527, per Mason P (Sheller and Beazley JJA concurring) and the cases cited therein. In particular, Mason P agreed with the dissenting view of Burt CJ in Re Minister for Minerals and Energy; Ex Parte Wingate Holdings Pty Ltd [1987] WAR 190, who said (at 194):
The courts are charged with the high responsibility of administering justice according to the law as it is. A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed. It may well be that his victory, should he enjoy one, will be Pyrrhic. If it is, then so be it. That is a matter for him.
13 These principles were applied by Bignold J in National Trust of Australia (NSW) v Heritage Council of NSW & Anor [1999] NSWLEC 104 in refusing an application to adjourn proceedings in which there was a challenge to the validity of three related approvals granted by the Heritage Council of New South Wales, notwithstanding a recent Cabinet decision to introduce a special bill into the parliament to validate the approvals under challenge.
14 In Sydney City Council v Ke-Su Investments Pty Ltd & Ors (1985) 1 NSWLR 246, the Court of Appeal refused an application for a consent adjournment in a case in which there was an allegation that premises were being unlawfully used as a brothel, where the application was based on the prospect of a legislative change.
15 The latter two cases involved proceedings that had been brought to restrain alleged breaches of planning controls. I acknowledge the force of the submissions of senior counsel for the first, second and third respondents that the situation would be different if the use was continuing, which was the situation in Ke-Su. It seems to me, however, that in this case the Court should not, at this stage, exercise its power under s 124(3). The principles to which I have referred strongly suggest that the hearing should proceed. That is not to say, however, that the exercise of the Court's discretion under s 124(3) could not be raised at the hearing itself. The parties have prepared for the hearing of the outstanding issue of the exercise of the court's discretion and have assembled a large amount of evidence for that purpose. If in the time between now and the hearing, the first, second and third respondents are unable to meet the fresh evidence raised in the applicants' affidavit in reply, then that evidence, if it is truly new material, will simply not be permitted to be adduced. Importantly, the adjournment will not resolve the outstanding issue of costs. Finally, although the council strongly supports the rezoning, its proposal to do so is yet to be advertised and public submissions on the proposal are yet to be received, so that it cannot be said with certainty that the rezoning will eventuate.
16 The motion to vacate the hearing dates is dismissed with costs.
I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.