South Sydney City Council v Rennoc Australia Pty Ltd & Anor [2003] NSWLEC 45 | Case summary

HIS HONOUR: 1 This is an application by the applicant, South Sydney City Council ("the council") for interlocutory relief restraining the respondents from using premises known as Nos. 201-211 Botany Road, Waterloo for the purpose of the storage and retailing of Christmas products and an ancillary office and trade showroom without having first obtained development consent. It is conceded on behalf of the respondents that the premises are operating without development consent and that development consent is required. 2 On or about 18 August 2000 the first respondent, Rennoc Australia Pty Ltd, lodged an application for development consent so that it could carry on the business of, inter alia, retailing of Christmas decorations and accessories. On or about 12 December 2001 the council resolved to refuse its consent to the development application. The grounds of refusal include grounds related to the proposed use of the premises having an adverse impact on the amenity and safety of the surrounding area, including inadequate provision of on-site parking and loading facilities, double parking of buses and trucks servicing the use, and obstruction of the footpath and littering by the customers. 3 On 15 January 2002 the first respondent appealed to this Court against the council's refusal of the application for development consent. In June 2002 that appeal was listed for hearing in this Court on 28 November 2002, 29 November 2002 and 3 December 2002. On 26 November 2002 the first respondent made an application to vacate the hearing dates and that application was granted. On 20 November 2002 the applicant council commenced these proceedings seeking, inter alia, interlocutory relief. The application is based not only upon the fact that the use of the premises at present is unlawful, but it is said to be causing a great deal of difficulty, which I shall now describe. 4 The evidence adduced by the council suggests that a large number of buses attend the premises from time to time. I should briefly summarise that evidence. On 19 October 2002 Ms A M Treharne, an area planning manager employed by the council, went to the site. She observed a number of coaches lined up along both sides of Allen Street - I should add that the premises are located on the corner of Botany Road and Allen Street, Waterloo. Ms Treharne was unable to continue driving along Allen Street as there were a number of coaches double-parked along the kerb and which were blocking the street. A parking attendant wearing a yellow road safety vest was in the centre of the road attempting to assist a coach driver to reverse park a coach into the off-street parking area at Nos. 7-11 Allen Street where several coaches were already parked. This manoeuvre was made difficult due to the number of coaches already parked on both sides of Allen Street. During her time there, approximately 10 minutes, Ms Treharne observed a total of approximately 18 coaches or mini buses, one with a trailer, in the vicinity of the subject premises. She also observed persons alighting from the coaches heading towards the subject premises. In her opinion the situation was chaotic and entirely unacceptable from a road safety or pedestrian safety point of view. 5 Mr G N Cash, a senior ordinance inspector employed by the council, visited the premises on 19 October 2002 and took a number of photographs which are in evidence. I must say that the photographs are not particularly helpful. They just depict buses parked in the street and people on the footpath. 6 Mrs C N Edney, a town planner employed by the council, inspected the premises on behalf of the council on a number of occasions. On 8 June 2002 she saw that both sides of Allen Street were parked out, approximately 20 people were milling around on the footpath outside the front door of the subject premises. On 21 September 2002 she attended the subject premises and saw three buses parked on Botany Road with two in front of the premises. Another bus was parked in the off-street parking area at Nos. 7-11 Allen Street. She made other observations of a similar nature. In Mrs Edney's opinion the present unlawful use of the premises is "having adverse amenity, safety and traffic impacts" due to pedestrians and vehicles, inter alia, obstructing the footpath. 7 Mr G J Michaux, a transport planner employed by the council, inspected the premises on 5 November 2002, 6 November 2002 and 9 November 2002. He states that the double-parking of trucks and buses servicing the subject premises "is occurring and is unacceptable given its adverse impact on pedestrian and driver amenity and safety". In his report, which is in evidence, Mr Michaux states that he has observed the behaviour of coaches bringing customers to the subject premises on a number of occasions and then goes on to describe double parking of buses creating a dangerous environment for all road users. In particular, Mr Michaux observed passengers entering or exiting a bus directly onto the carriageway of Allen Street in-between the bus and parked vehicles. Passengers were observed to cross Allen Street in-between two double-parked buses. Vehicles were observed to be forced to stop on Allen Street and to wait for pedestrians to cross the road after exiting from double-parked buses. Mr Michaux observed that on one occasion the driver of a double-parked bus was seen to stop traffic in both directions to allow passengers to cross the road. The parked buses obstruct the road space for cyclists using the designated cycleway of Allen Street. The visibility of other road users and drivers was impaired. 8 I have also received evidence in the form of an affidavit from Paul Rosenberg, the second respondent. He says that his business employs about five people, the number increasing as Christmas gets closer. At the present time the first respondent employs about 60 people in the business. He has leased premises at Nos. 7-11 Allen Street, Waterloo solely for the purpose of providing off-street parking for vehicles using the subject premises. He also refers to the fact that there is a number of other premises in the vicinity which provide retail outlets and which attract coach tours. 9 In relation to the off-street car park at Nos. 7-11 Allen Street, Mr Michaux has criticised the size and layout of that car park. In particular he says the available parking area at Nos. 7-11 Allen Street has an awkward layout for buses with a long and narrow corridor approximately 35 metres in length and 19.5 metres wide narrowing to 12 metres wide. 10 The respondents have also offered to limit the manner of their use of the premises. They have offered to limit their use to four buses at any one time and to cause two suitably trained persons to stand outside the premises and direct buses to the off-street car park at Nos.7-11 Allen Street, and to take other similar traffic control measures. 11 The principles governing the grant or refusal of interlocutory relief that apply in private law litigation have been applied to public law cases notwithstanding that different factors arise for consideration. In order to secure an injunction an applicant must show, firstly, that there is a serious question to be tried, secondly, that there will be irreparable injury unless an injunction is granted and, thirdly, that the balance of convenience favours the granting of an injunction (Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 217-218). As I have said, the premises have been operating unlawfully in the sense that development consent is required for the use, which development consent has not been obtained. The applicant council has offered the usual undertaking as to damages. 12 It is necessary to take into account the fact that the applicant is a local government council, acting on behalf of the public and in the public interest and seeking to uphold a public law. It is necessary therefore to base the granting or denial of equitable relief on broader grounds than would normally apply as between private citizens. The courts are somewhat slower to deny to public bodies, or the Attorney-General as custodian of public rights, relief on this ground than in the case of an individual. It is unfortunate in one respect that the appeal against the refusal of the development application which had been set down for hearing yesterday, today and Monday did not proceed because in those proceedings the various solutions to the problems that have been identified before me could have been canvassed and the matters possibly resolved. At the moment I am inclined to the view that the injunction sought should be granted. As I have said, the premises are operating unlawfully and it must be self-evident that although not all the buses can be attributed to the use of the subject premises the removal of this unlawful business may be expected to reduce at least the impacts described by the council's witnesses. 13 The formal orders of the Court are, therefore, as follow: 1. Until further order and upon the applicant giving the usual undertaking as to damages, the respondents, their employees and lessees be restrained from using, suffering or permitting to be used the premises known as Nos. 201-211 Botany Road Waterloo for the purpose of the storage and retailing of Christmas products, an ancillary office and trade showroom without first having obtained development consent. 2. The question of costs is reserved. ********** I hereby certify that the preceding 13 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

South Sydney City Council v Rennoc Australia Pty Ltd & Anor

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