North Sydney Council v North Sydney Leagues Club Limited

Discussion

1. On this occasion the Club relies on s 124(3) of the Environmental Planning and Assessment Act 1979 ("the Act"), and the question must be considered in light of present circumstances, and what has changed since my earlier decision.
2. The parties relied upon the information on these matters contained in 10 affidavits read by both sides on the application.
3. The DA which was pending as at 18 March (no 78/16) was refused by Council on 1 June 2016, and the Club promptly lodged a Class 1 appeal on 3 June 2016 (2016/170886). That appeal is listed for its first directions hearing before the Registrar this Wednesday, 6 July 2016, and the Club hopes it will be dealt with by the Court during September.
4. Some of the likely complications I foresaw in March (heritage issues, and arguments about "existing use") are not among Council's contentions in the Class 1 appeal.
5. The filed contentions concern alleged impermissibility, inconsistency with objectives, inadequate parking, neighbourhood amenity problems, and the public interest.
6. There is no doubt that complaints about the respondent's operation of the Greens remain (affidavit of Leung), but there is some evidence before me to suggest (1) that the remaining amenity concerns and complaints about the Club's operations come now from only two households, (2) that they may have abated since March, and, in some respects, (3) that some may perhaps have been resolved.
7. Nonetheless, The Greens is an entertainment venue located in a public park in a residential area.
8. The Club now admits the breach of the planning law alleged in the Class 4 summons, and has proffered undertakings which could be imposed as conditions on the adjournment it seeks. Its NOM seeks an order that the Class 4 hearing not occur until after the final determination of the Class 1 appeal. (In the alternative, it seeks that the two cases be heard concurrently, but no submissions were made in support of that course.)
9. There are serious issues to be tried in the Class 1 appeal, including patron numbers, and there are major conflicts between the expert town planners (Lidis for the Club, and Mossemenear for the Council).

Council

1. The Council opposes the vacation of the hearing, unless the Court were to impose upon any such order "terms that strictly regulate the continuation of the unlawful use and use of unlawful works pending the determination" of the Class 1 merit appeal. Mr To's submissions on behalf of the Council say (at par 4): If the Court is not minded to impose strict terms on the continuance of the use pending the determination of the merit appeal, the Court should dismiss the motion ...
2. Mr To argues that the only change in relevant circumstances since my earlier judgment is the commencement of the Class 1 appeal, but he acknowledges that that appeal enlivens s 124(3) of the Act which provides: Orders of the Court ... (3) 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.
3. No interlocutory order has been sought by Council.
4. Mr To acknowledges a reduction in amenity impacts, but submits that that reflects "the seasonality of the Club's use" (par 16).
5. Council opposes any continued failure to regulate the unlawful use, which commenced in September 2014, and generates a substantial "private advantage" to the Club. The Court must uphold the planning law, to secure "equal justice" (pars 19 - 20). Mr To wants the Court to (1) limit patron numbers to 350, which Council's evidence suggests as the appropriate maximum, and (2) prohibit use of the bowling green area paved without consent in November 2014 - removal of which is sought in the Class 4 summons - unless and until those works are approved (pars 31 - 32).
6. Even if the Class 1 appeal succeeds, there may still be some utility in the Class 4 case (pars 24 - 28).

Club

1. Mr Lazarus for the Club says that the way forward required by the CP Act is to deal with the Class 1 case before the Class 4 case, and he submits that the Council's firm stand on the conditions the Court should impose on any vacation order has been "unreasonable" (affidavit of Ferguson, and Exhibit A), especially given the Club's adherence to the provisions of its comprehensive Plans of Management.
2. The Greens has struggled financially, and has come to rely heavily on improved management, including targeting of patronage and handling of complaints, and on its outdoor facilities, albeit that a major part of them was constructed unlawfully (affidavits of Williams and Simmons).
3. To run the Class 4 case before the Class 1 appeal will burden the Club with huge costs, and duplication, which should be avoided. (The evidence relevant to both cases will be very similar.)
4. The Club submits that success in Class 1 will "wholly address" the substance of the Council's Class 4 case.
5. The Club proposes (subs par 4) that, as a condition of vacating the hearing, it should, consistent with its undertaking to the Court, and pending determination of the Class 1 appeal, be ordered to: • operate the premises in accordance with the Plan of Management prepared by Design Collaborative dated December 2015, and the Summer Plan of Management • limit the number of patrons on the "paved area" (as defined in the letter of 27 June 2016 [Exhibit A]) at any one time to 200.
6. The Council finds the suggested conditions inadequate.

Authority

1. In Sahade v The Owners Strata Plan No. 62022 & Ors [2006] NSWLEC 770, Jagot J said of s 124(3) (at [10]): In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined.
2. In Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 60, Biscoe J said (at [32]) that s 124(3): ... gives the Court the power to adjourn, and is a strong legislative indication that it should generally be inclined to adjourn Enforcement Proceedings where a breach of the Act would not have been committed but for the failure to obtain a development consent under Part 4. The adjournment is granted to enable a development application to be made under Part 4 and to obtain that consent thereby resolving the proceedings in question.
3. In Tynan v Meharg (1998) 101 LGERA 255, the Court of Appeal (per Stein JA at 259) endorsed the way this Court has consistently applied s 124(3).

Conclusion and Orders

1. While I must not be taken to be agreeing that the Club should be entitled to use the unlawfully paved area to add 200 patrons to any number prescribed for the facility as a whole, I have concluded that, provided the Club maintains its commitment to pursue the early determination of its Class 1 appeal, the conditions it proposes for the granting of the adjournment are appropriate.
2. The respondent's NOM of 16 June 2016 is upheld in part, and the Orders of the Court are: 1. The proposed hearing of the Class 4 proceedings (case No 2016/152612) on 19 to 21 July 2016 is vacated, on the conditions that, pending the Court's determination of the related Class 1 proceedings (2016/170886): 1. the Club is to operate the subject premises in accordance with the Plan of Management prepared by Design Collaborative dated December 2015, and the Summer Plan of Management; 2. the Club is to limit to 200 at any one time the number of patrons allowed access to the paved area alleged by Council in the Class 4 proceedings to be unlawful works; and 3. the Club is to take all necessary steps to ensure the earliest possible listing and determination of its Class 1 proceedings. 1. The parties' costs on the Notice of Motion of 16 June 2016 are reserved. 2. The Class 4 proceedings are stood over to the List Judge List on Friday 30 September 2016 for further directions. 3. Liberty to apply on three days notice. 4. Exhibit A to be retained, pending further directions.

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: 04 July 2016