North Sydney Council v North Sydney Leagues Club Limited

Land and Environment Court (NSW)|2016-03-18|Before: Sheahan J, Pain J

Solicitors: Sparke Helmore (Applicant) Gadens Lawyers (Respondent) File Number(s): 40389 of 2015

Introduction

These proceedings concern works on, and use of, a long-established bowling club site on Crown Land leased to the respondent Leagues Club company.
The Club is located at 50 Ridge St, North Sydney, within St Leonards Park and adjacent to North Sydney Oval. St Leonards Park is a State Heritage Item, and the premises are currently known as "The Greens North Sydney".
The site is zoned "RE1 Public Recreation", and "recreation facilities (outdoor)" are permissible with development consent ("DC"). Earlier "improvements" to the Club's premises have been the subject of DC, but, in the present dispute, the Club relies on "existing use" rights, and asserts that no DC is needed for the subject works and the present use.
The Council considers that both the subject works and their resulting intensification of the use of the Club are unauthorised and unlawful.
By Notice of Motion ("NOM") filed 7 March 2016, and heard by me on 18 March 2016, the Club seeks adjournment of these Class 4 proceedings until finalisation by Council of a development application ("DA") made to regularise the Club's position.

Relevant Background

The bowling club was established in 1888, and the present clubhouse was built in the 1960s. It was first licensed under Liquor and/or Clubs legislation in February 1950.
In late 2014 the physical layout of the bowling club site was altered, without any council consent. Part (approximately 40%) of one of three bowling greens east of the clubhouse was converted to provide outdoor dining and bar areas, and a marquee was placed between another two greens.
The Club's takings dramatically increased shortly after the alterations. In August 2014 the takings were $17,000 and in August 2015 $313,000; the average between November 2014 and December 2015 was $464,000 per month.
However, this increase in activity has led to "many and regular" amenity complaints from the public to the Council.
The use and the complaints have both continued to this date.
Council met Club representatives about the works between September and December 2014.
Ultimately, on 23 December 2014, the respondent's CEO, in a statutory declaration, committed to: 1. a pre DA meeting in January 2015; 2. an undertaking to cease operation, including music on the paved area at 10pm nightly; 3. ensuring no bar operations in that area; and 4. lodging "any necessary application as soon as reasonably practicable" after the meeting in (a).
Despite its continued contention that DC is not necessary, the Club, in accordance with commitment (d) above, has since lodged two DAs (for some "refurbishment and continued use" of the dining and bar area).
The promised pre-lodgement meeting (commitment (a)) was held on 12 February 2015, but the first DA was not lodged until 22 or 30 June 2015, after Council commenced these Class 4 proceedings on 6 May 2015.
After what Council considered were inadequate responses to its requests for more information, it refused that first DA on 9 November 2015, on ten stated grounds.
The Club then engaged specialist planner James Lidis to coordinate preparation of a new DA, but it did not seek a s 82A review, nor commence a Class 1 appeal against the Council's refusal.
A further "pre DA" meeting was held on 10 December 2015. A second DA was lodged on 2 March 2016, but rejected on 7 March 2016. The "present", revised, DA was lodged on 14 March 2016, accompanied by a range of documents (Lidis par 11 and tab 2 of Exhibit JL1), including a draft Plan of Management, a comprehensive Statement of Environmental Effects, a Conservation Management Plan, and Heritage, Acoustic, and Traffic Reports.
Meanwhile, these proceedings were stood over by the Court on 5 June, 17 July, 11 September, 9 October, 6 November, and 13 November 2015, twice with the consent of Council, to facilitate the lodgement and assessment of the Club's DA, including as to heritage issues/conditions.
On 6 November 2015, Moore AJ noted on the file that the "Respondent intends to file [a] Class 1 appeal".
On 13 November 2015, by consent, the matter was stood over to the List Judge list on 18 March 2016. Pain J noted that a Class 1 appeal had not yet been lodged, and that, in the alternative, a new DA might be lodged.
Her Honour set a timetable for the filing and service of Points of Claim ("POC"), Points of Defence ("POD"), and the evidence of both sides, those steps to be completed by 14 March 2016. She also granted liberty to apply.
While the applicant appears to have complied with those directions, the respondent filed its POD, on time, on 24 December 2015, and then, nothing further, until its NOM on 7 March 2016, seeking: 1. that the consent orders of 13 November be set aside; and 2. that the proceedings be adjourned pending determination of the present DA "and any Class 1 proceedings that may be commenced" if that DA is refused.
That NOM was listed for 11 March 2016 before me as List Judge, and I adjourned it, by consent, to 18 March to be heard, "if required".
When the matter was called on for hearing on 18 March, Ms A Hemmings of counsel, appearing for the respondent, sought its further adjournment to 24 March to suit its senior counsel's convenience. (Counsel had never previously appeared before the Court in these proceedings.)
Council, through its counsel, Mr To, opposed the adjournment of the NOM, and I declined to adjourn it, as both parties were represented by competent junior counsel and appeared ready to proceed.
This judgment now deals with the substance of, and the arguments on, the NOM.
In oral submission, Ms Hemmings sought an adjournment for two months.

Consideration

It needs to be noted that Council has never sought any interlocutory relief against the Club. The Class 4 summons seeks a declaration of development (by way of works and use), in breach of the Environmental Planning and Assessment Act 1979 ("EPA Act"), and orders for "permanent restraint", and timely removal of the physical works.
The issues between the parties have been spelled out in the POC and POD, and there are certainly some serious issues to be tried.
Counsel estimated that the hearing of the substantive case will take three days.
The Club says that its present DA adequately addresses all the issues in Council's POC (Lidis par 21), and its POD admit (in par 7(b)) that it carried out the works.
Council states that its assessment of the present DA is only at the "preliminary" stage, and may not be completed before "in or about July 2016". Meanwhile, it has sought further information from the Club, and issued a "stop the clock" letter, on 16 March. Ms Hemmings complained that the Council "always want more" from the Club.
In seeking its adjournment, the Club does not seek to rely on s 124(3) of the EPA Act, but only on s 66 in Part 6 of the Civil Procedure Act 2005 ("CPA")
Section 124(3) envisages affording a respondent to enforcement proceedings an opportunity to regularise its position, but it is discretionary.
On the other hand, the CPA requires the Court to facilitate the just, quick and cheap resolution of real disputes. Against that background, s 66 provides: (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time.
Ms Hemmings also relied on the reasoning of Craig J in Shellharbour City Council v Altz Pty Ltd ("Altz") [2014] NSWLEC 57.
In Altz, an adjournment was sought and granted in Class 4 proceedings, so that a DA could be determined. His Honour relied on the "interests of justice" (CPA s 58), and said, relevantly for present purposes (at [22] - [31]): 22 The notice of motion seeking the adjournment of the proceedings was, as the supporting material indicates, initially intended to engage the provisions of s 124(3) of the EPA Act. However, when the matter was argued before me today, Mr Withers, who appeared for Altz, indicated that reliance upon that section may be inappropriate because it required a determination or concession that there had been a breach of the Act in order to engage its provisions. Altz maintains its position that no such breach has been demonstrated and certainly none has been admitted. The application for adjournment, as Mr Withers articulated it, seeks to engage the provisions of the Civil Procedure Act 2005 (NSW) by which the Court, in case management of the proceedings, is able to address the exigencies of the case by reference to the provisions of Pt 6 of that Act. 23 In particular, he identified s 66 which enables the Court, subject to its rules, to grant an adjournment and under s 67 to stay proceedings. The exercise of the discretion afforded by those sections is in turn informed by the provisions of ss 56 and 57 of the Civil Procedure Act. Reliance was placed upon those provisions as the purpose of the adjournment was to enable time to be given for the lodgement and determination of a development application for a "neighbourhood shop" within the existing premises. Lodgement of that application was foreshadowed in the affidavit supporting the notice of motion which was filed, as I have said, on 15 April 2014. 24 As it happened, the development application was not lodged with the Council until yesterday, 12 May 2014. ... 25 The essence of the argument advanced on behalf of Altz is really this. There is a discretion to afford an adjournment in order to enable the development application to be determined. It is in the interests of justice that this should be done, whether one refers to the provisions of ss 56 to 60 of the Civil Procedure Act or whether, contrary to the submissions it makes, one relies upon the exercise of discretion under s 124(3) of the EPA Act. 26 I have determined, having regard to the background to the proceedings which I have but briefly outlined, that it is appropriate to grant the adjournment sought by Altz. It seems to me there are three reasons that justify the adjournment. First, it is clear that there is a serious question to be determined as to whether or not the manner in which the premises are presently being conducted by Altz do offend the provisions of LEP 2013 and therefore the Act. 27. Secondly, it is clearly accepted by the Council that there are aspects of the business being conducted by Altz that fall within the "bulky goods store" definition in LEP 2013 and hence those aspects of the activity would be lawful. ... ... 29 The third factor that causes me to conclude that an adjournment should be granted is delay. I can accept that both parties have not acted with the expedition that might have been expected, given the circumstances of the case. However, the position of Altz, so it seems to me, is somewhat different to that of the Council. It is the Council who complains that a breach of the Act is and has been occurring, an allegation in respect of which it has been aware since late 2011. 30 It will be remembered that the complaint from a competitor or competitors about the current manner of conduct at the premises was first notified to the Council in late 2011. The complaint was investigated in mid 2012 and yet proceedings were not commenced until January 2014. The Council has not sought, understandably in the circumstances, an interlocutory injunction to restrain the activities that are presently being conducted. 31 In those circumstances it seems to me that the delay in commencing proceedings to restrain the activity said to be unlawful is such that, if not the letter, then the purpose of the EPA Act, as reflected in s 124(3), should be implemented. There should be an opportunity afforded to Altz to obtain the consent for which it has now applied without incurring further cost in defending the present proceedings pending determination of its application.
At that point in his judgment, Craig J discussed s 124(3), and the decision of Jagot J in Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770.
His Honour continued (at [33] and [34): 33 ... The subsection therefore reflects a basis upon which a discretion can properly be exercised in accordance with the provisions of Pt 6 of the Civil Procedure Act. I also note the observations of Pepper J in Council of the City of Sydney v Samadi [2010] NSWLEC 125 where her Honour said at [51]: "Ordinarily the Court would be loath to insist on the continuation of the preparation of proceedings where costs may be thrown away by reason of an outcome in another matter. This would not facilitate the overriding purpose set out in s 56 of the CPA." 34 There is no doubt that if the present Class 4 proceedings are prosecuted to their conclusion, they will raise complex issues of law and of fact of the kind that were addressed in litigation both in this Court and in the Court of Appeal in Bardsley-Smith v Penrith City Council [2013] NSWCA 200. In contrast, by adjourning the proceedings for a relatively short period and allowing what on its face would appear to be a fairly straight-forward application to be considered and determined by the Council and, if necessary, by this Court on appeal, there is a more expeditious and less costly means of addressing the issue between the parties than the conduct of protracted Class 4 litigation.
These applications must be determined on their own facts and circumstances, and I take no issue with His Honour's analysis of principles, nor with his decision on the facts of the case he was there considering.
By contrast, in view of the heritage issues and the "existing use" argument, I do not see the DA in the present case as "straight-forward" at all.
Nor do I see the attitude of the present respondent in the same light as Craig J encountered in Altz.
I also agree with Mr To that the history of the dispute, from August 2014 to the present, shows a tolerant and co-operative approach on the part of the Council.
However, contrary to Mr Lidis (par 15), I do not find a co-operative approach on the part of the Club. I refer, for example, to its failure to employ s 82A, its equivocation about a Class 1 appeal, and its failure to advise Council of the apparent trial of a Plan of Management regime.
Nor do I find adequate Mr Lidis's explanation of the Club's delay (par 19) in pursuing DC. Mr To is correct in suggesting that the Club has been "dragged along" by Council, and (subs par 22) has not "moved with expedition".
The respondent's attention to the cause of the complaints discussed with it by Council has certainly never been "timely" (subs par 10).
It took three months to give the commitments in its statutory declaration, and then three or four more to submit an inadequate DA. Its reaction to the refusal of that DA was far from expeditious or co-operative, and it did not submit a new DA until after the Council commenced these proceedings.
The primary issue for the DA process, apart from heritage, will be the alleged continuing adverse impacts of the use of the Club on its neighbours.
The lawfulness of the works done without consent will still need to be resolved by the Class 4 proceedings.
The present adjournment application is the Club's latest attempt to avoid or postpone the consequences of its alleged breach(s) of the planning law. As Mr To put it (subs par 16), the Club is seeking to delay and orchestrate avoidance of "these proceedings", and (par 21) an adjournment will not satisfy the requirements of the CPA.
Unlike Craig J in Altz, but like Biscoe J in Hawkesbury City Council v Agostino [2009] NSWLEC 130, and Pepper J in Council of the City of Sydney v Samadi [2010] NSWLEC 125, I exercise my discretion in favour of the Council on this occasion.
I make the following orders and directions: 1. The Respondent's Notice of Motion filed on 7 March 2016 is dismissed. 2. The Respondent is ordered to pay the Council's costs of the hearing on 18 March 2016. 3. The directions in the consent orders made by Pain J on 13 November 2015 are amended as follows: 1. Order 4 is to be complied with by 15 April 2016; 2. Order 5 is to be complied with by 6 May 2016. 1. The matter is to be listed before the List Judge, for final directions and the appointment of hearing dates, on Friday 13 May 2016. 2. The parties are to have liberty to restore on 48 hours notice. 3. Exhibit "JL1" to the affidavit of James Lidis is to be returned to the Respondent.

Amendments 22 March 2016 - 1. Counsel in coversheet now reads: Mr T To, barrister (Applicant) Ms A Hemmings, barrister (Respondent) 2. Typographical error paragraph [8] "alterations" replaces "alternations" 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. Decision last updated: 22 March 2016

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Judgment (5 paragraphs)

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