MEDIUM NEUTRAL CITATION: [2003] VCAT 1954

1 Until further order, Blue Emporium Pty Ltd must forthwith cease the use of the premises at 14-14A Claremont Street, South Yarra as a nightclub until such time as it can provide, to the satisfaction of the responsible authority, not less than 285 car parking spaces which can be used in conjunction with the operation of the nightclub.

2 I direct that proceeding P3369/2003 be given priority and be heard on 27 January 2004 with two days being set aside before a tribunal which includes a planning member.

3 I reserve the costs in relation to this application.

REASONS (given orally at the hearing and subsequently revised)

1 Stonnington City Council (the council) has applied to the tribunal for an enforcement order pursuant to section 114 of the Planning and Environment Act 1987 against Blue Emporium Pty Ltd and B & I Holdings Pty Ltd. The application concerns premises known as the Salt Nightclub at 14-14A Claremont Street, South Yarra. The respondents are the occupier and owner, respectively, of the nightclub.

2 The hearing of that application will need to proceed in due course as the business of the tribunal allows. In the meantime, the council makes application for an interim enforcement order pursuant to section 120 of the Planning and Environment Act.

3 Section 120(1) provides that a responsible authority, who has applied under section 114 for an enforcement order, may apply to the tribunal in an urgent case for an interim enforcement order against any person in relation to whom the application under section 114 was made. An application for an interim enforcement order is similar in character to an application for an interlocutory injunction; likewise, an application for an enforcement order is similar in nature to an application for a permanent injunction. Given the similarities, and subject to anything specifically provided for in the Planning and Environment Act, the same principles that generally apply to interlocutory injunctions ought apply to interim enforcement orders.

4 One of the specific matters referred to in the Planning and Environment Act is that an interim enforcement order is available in an urgent case. It has been said that that provision confines the remedy of an interim enforcement order to circumstances where: an order is needed urgently to prevent serious harm or to preserve the status quo: see Fisher Lorraine Wilma v East Gippsland Shire Council (2003) VCAT 1030; or irreparable harm would occur if the interim order was not made: see William KG v Mornington Peninsula Shire Council (2003) VCAT 904. But, in my opinion, the expression an urgent case is not necessarily so confined. Further it is an expression that need not be interpreted by substituting other words. Rather it is merely an indication by the Parliament that interim enforcement orders are to be made in cases where a prompt decision is desirable, for some reason or other.

5 Section 120(3) also sets out matters which must be considered before the tribunal makes an interim enforcement order. These are essentially the same as matters which ought be considered in any application for an interlocutory injunction, covering such matters as the effect of not making the order and whether the applicant should give any undertaking as to damages. But, in my opinion, the specific reference in section 120(3)(b), requiring the tribunal to consider whether the applicant should give any undertaking as to damages, does indicate that the intent of Parliament is that such an undertaking will not always be required. This may or may not be different than the position which would apply in relation to an interlocutory injunction: compare Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318.

6 In relation to interlocutory injunctions Hoffman J said in Films Rover International Ltd v Canon Film Sales Ltd [1987] 1 WLR 670, at 680, that:

A fundamental principle is that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been "wrong".

In making that statement Hoffman J was concerned with the possibility of the interim injunction being granted and subsequently it turning out that it should not have been granted and comparing that with the possibility of the interim injunction being refused and subsequently it turning out that it should have been granted.

7 For my part, I believe the same approach should apply in determining applications for interim relief, whether interlocutory injunctions or interim enforcement orders. The principle espoused by Hoffman J could actually be simplified, yet broadened, to a principle that the tribunal should take the course which appears to carry the lower risk of injustice. This will involve an assessment of the probability of the proceeding being ultimately successful and an assessment of the probability and nature of the harm which each party may suffer in the event that the interim decision is "wrong" in the sense used by Hoffman J. This method compresses the traditional approach, which is in two parts (is there a serious issue to be tried and what is in the balance of convenience), into one test. But although there is some compression, the same matters are taken into account.

8 There is something to be said for the proposition that judges have not shown a deep understanding of probability theory. Often judges use words such as likely, could, may and so on without demonstrating a convincing understanding of what they really mean in terms of probability. Mathematicians, on the other hand, have evolved probability theory in a manner that puts a precise number on the likelihood of a consequence happening. I suspect the law would benefit if likely outcomes were articulated in terms of probability.

9 In this case I must first address the probability of the enforcement order being granted, if the facts remain as they now are, at the final hearing of the application for the enforcement order. If that probability was, for example, 0.5 or 50%, then considerations of balance of convenience and the probability of harm occurring, if the interim decision turns out to be wrong, would assume great significance. On the other hand, if the probability of a final order being made, if the facts remain as they now are at the final hearing, was closer to zero or closer to one, then that probability would largely dictate what would be the appropriate interim position.

10 In the present case, if the facts remain as they now are at the final hearing, the probability of a permanent enforcement order being granted is very high. This is because the planning permit is unequivocal in its conditions. The permit requires a substantial number of car spaces to be provided. It also provides that the use must cease if the spaces are not provided. The current use of the Salt Nightclub is clearly in contravention of those conditions. The law requires the conditions of permits to be obeyed; and if the conditions of a permit are not obeyed, then the permit which would otherwise authorise the use of the land is of no legal value.

11 The real claim that is being made by the occupier is that the condition which is not being met is a condition which should be changed. To that end an application has been made under section 87 of the Planning and Environment Act to amend the permit to alter that condition. I think there is a strong case that that application will succeed. The form of the condition which requires 285 car parking spaces to be provided does seem, on the face of it, to be excessive in a modern age when driving to nightclubs is to be discouraged. Further, there is evidence before the tribunal from Mr Turnbull, a well respected traffic engineer, to the effect that the actual parking generated by the use is substantially lower than 285; and, further, that much of the demand can be accommodated on nearby streets. Hence I would be prepared to conclude, on the evidence available today, that the probability of the permit being amended so as to eliminate or reduce the car parking requirement is high.

12 What, then, is the appropriate course in such circumstances. It seems to me that the first factor I have mentioned should dictate the appropriate course. In other words, the importance of the law being obeyed is more important than the possibility, or even the probability, that the car parking requirement will in fact ultimately be waived or reduced.

13 Assuming that the car parking requirement will ultimately be reduced, it may be said that the closure of the nightclub during the period between now and that event would be unjust. But I think that argument is answered by the contention that to allow the nightclub to continue to operate, without complying with the current permit conditions during that period, would, in effect, be allowing the nightclub to jump the gun and anticipate the modification of the condition, rather than await its modification.

14 I am concerned that the real purpose for the bringing of this application is not a car parking purpose, but a purpose directed at public safety. There is much to be said for the tribunal being placed in a position where it can confront the real issues, as directly as possible. In the context of this case that may be best achieved if there was an application under the Liquor Control Reform Act. But that is a matter I have to leave to others.

15 The section 87 application should be given priority and be heard in late January 2004. How that is determined will determine whether or not a permanent order is made. If the section 87 application fails, a permanent order is very likely to be made. If it succeeds, then the circumstances which would then result would probably mean that a permanent order would not be made. But I think in considering the interim position the proper approach is not to consider what might be the case if the section 87 application succeeds, but rather to consider what would be the outcome in the event that the facts remain as they currently are.

16 I am not proposing to make any order in relation to the owner. It seems to me that a basis for an enforcement order is a finding that the use complained of contravenes, has contravened, or will contravene the planning permit: see section 119(a) of the Planning and Environment Act 1987. No such contravention has been shown in relation to the owner. Given that, it is inappropriate that any order be made against the owner.

17 I desire to say something about the question of an undertaking. I do not require the responsible authority to give any undertaking as to damages. The decision in Optus Networks does not decide this question in the context of circumstances where a public authority is under a legal duty to enforce a planning scheme: see, for example, the comments of Charles J at page 334. I hold that the responsible authority is under a duty to enforce the provisions of the Stonnington Planning Scheme: see section 14(a) of the Planning and Environment Act 1987. Further, as I indicated previously, I regard section 120(3)(b) as requiring consideration of whether the applicant should give any undertaking as to damages and hence providing the tribunal with a discretion as to whether or not to require it. In the usual course such an undertaking will be required. But where the applicant is a responsible authority, with a duty to enforce the planning scheme, and particularly where the issues are clear cut and the probability of a final order is close to 100%, the circumstances do allow the tribunal to exercise its discretion not to require such an undertaking. I exercise the discretion in this case.

18 Mr Dreyfus has applied for costs. Although, as presently informed, a permanent enforcement order is likely to be granted in the event that the facts remain as they now are at a final hearing, it is better to be fully informed, rather than informed to a high, but incomplete, degree. Further, on this busy day with other cases waiting, the question of costs can wait. Mr Finanzio has asked that his costs also be reserved. I think that is appropriate also.

Responsible Authority: Mr M Dreyfus QC and Mr N J Tweedie of counsel

For B & I Holdings Pty Ltd Mr A Finanzio of counsel