Hawkesbury City Council v Agostino

KEY ISSUES: PRACTICE AND PROCEDURE :- application to adjourn class 4 civil enforcement proceedings re using premises for a prohibited use to enable respondent to make a development application

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 124(3), 127(7)

CASES CITED: Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119

APPLICANT: Mr S Griffiths SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENTS: Mr M J Stevens, barrister SOLICITORS A R Walmsley & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a contested motion by the respondents, Francesco Agostino and Caterina Agostino, in these class 4 proceedings for an order to vacate the hearing dates and an order that the proceedings be stayed pending determination of a development application lodged by them with the applicant, Hawkesbury City Council, on 2 July 2009. The proceedings are listed for hearing for three days in three weeks' time, from 12 to 14 August 2009. 2 The background is that the respondents have premises on Bells Line of Road, which it operates as a retail shop. The premises were built as a fruit packing shed in the 1950s. The fruit packing use ceased in or about the early 1970s when the property was sold. Thereafter the premises were used for general farm storage purposes. From about 1978 to 2003 they were occupied and used to build childrens' rocking horses. It seems that at some time during that period that occupier used the premises for the display and sale of rocking horses. Later he added other toys to the items displayed and sold from the premises.

3 The respondents purchased the premises in 2003. From about November 2008 they have used the premises to sell fruit and vegetables, in addition to selling toys, and have traded about twelve hours a day seven days a week. In February 2009 the council refused the respondents' development application to use the premises as a fruit and vegetable shop.

4 In March 2009, the council commenced these proceedings seeking declarations that the respondents are using the land as a shop and that a shop is prohibited under the Hawkesbury Local Environmental Plan 1989, and an order restraining the respondent, their servants, agents and employees from using, permitting or suffering to be used, the subject premises as a shop. On 29 May 2009 the matter was fixed for hearing in mid August for three days. The parties have filed pleadings and affidavits in accordance with a timetable fixed by the Court and the matter is ready for the hearing. The issue expected to be ventilated at the hearing is existing use rights.

5 On or about 8 June 2009 the respondents received legal advice to lodge a development application to use the premises as a general store. There followed communications between their solicitor and a planning consultant concerning the matters that had to be attended to in connection with the lodging of the application. On 2 July 2009, the respondents lodged a development application with the council seeking consent to use the premises as a general store.

6 The Court has power to adjourn proceedings in circumstances such as this under s 124(3) of the Environmental Planning and Assessment Act 1979, which provides: "Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned." 7 Section 124(3) is an important provision which discloses an intention to afford any opportunity to a respondent or prospective respondent to apply to adjourn proceedings to enable a development application to be made: Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119 at [8]. However, the relief for which it provides is discretionary. 8 An affidavit by one of the respondents, Ms Caterina Agostino, says that the respondents are experiencing some financial difficulties due to the cost of these proceedings and associated expenses and have insufficient money to pursue two sets of proceedings, and that, accordingly, they seek a stay of these proceedings until the determination of the development application has taken place. She says that the shop is the major source of income for them; that they would undertake to the court to pursue the development application with vigour and, if advised, to prosecute any right of appeal diligently; and that in the event that the council refused their development application and they were advised to appeal, they would undertake to commence the appeal proceedings within twenty-eight days of determination of the development application and to pursue the appeal as quickly as possible in court.

9 As I have said, the issue expected to be ventilated at the hearing is existing use rights. In the course of my being taken to documents this morning, it was noticed that in a letter from the respondents' solicitors to the council's solicitors on 23 December 2008, an assertion was made that the former council approved the installation of a coolroom during the 1970s for use in conjunction with the sale of fruit and vegetables. An extract from the council's register indicates that development consent was given for a coolroom in 1973 or thereabouts. That may be relevant to the existing use issue.

10 The council opposes the motion on the following grounds: (a) it has a strong prima facie case. I agree that that appears to be correct on the evidence before me, as regards use as a fruit and vegetable shop or general store; (b) the breach is not technical in that it is not to be based solely on a denial of existing use rights. In particular, there is evidence that Bells Line of Road is an arterial road with limited sight distances between the subject land and that road and significant traffic and access issues; (c) nearby residents are affected by, and have objected to, the current use, including being awoken early by vehicle movements unloading fruit and vegetables, numerous unsightly signs, the presence of many cars attending the premises and issues with car parking; (d) there is no other remedy available to the council because it is precluded from prosecuting in respect of past or continuing breaches by s 127(7) of the Environmental Planning and Assessment Act 1979 in the events that have happened; (e) the respondents do not consent to any interlocutory order restraining their operations or the sale of fruit and vegetables during the period of any adjournment, which is part of the discretionary relief specifically contemplated by s 124(3)(b); (f) the respondents have not brought this motion promptly. In December 2008, the respondents' solicitors opposed the council bringing enforcement proceedings and foreshadowed an appeal against deemed refusal of an earlier development application for a fruit and vegetable shop. On 13 February 2009, council's solicitors wrote to the respondents' solicitors noting that the respondents had previously argued that class 4 enforcement proceedings were premature as the respondents may wish to exercise their right to appeal the refusal of the development consent. 11 The letter stated that they were now instructed to commence class 4 proceedings to restrain the unlawful use, but that council may be prepared to stay its hand in that regard if a development appeal were lodged promptly. However, on 18 February 2009 the defendants' solicitors responded declining to appeal the refusal. It was against that background that the proceedings were commenced on 13 March 2009. As stated earlier, the parties have filed pleadings and affidavits in accordance with the timetable prescribed by the court and the matter is ready to proceed to hearing. As long ago as 29 May 2009 the matter was fixed for hearing for three days in mid August 2009. 12 Although there are competing considerations, I consider that the matters put forward by the council outweigh those put forward by the respondents such that the motion to vacate the hearing date should be refused.

13 I note that the council expects to determine the pending development application in roughly six weeks, which may well be before judgment is delivered in these proceedings. If not, and if council is successful at the hearing, then it might be open to the respondents to seek an order staying any injunctive relief that might be granted pending determination of the development application.

14 The respondents' notice of motion filed on 10 July 2009 is dismissed.

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