HIS HONOUR: The respondent is the proprietor of premises at 11 Ascot Road, Kenthurst (the premises). The premises are zoned RU6 Transition under The Hills Local Environmental Plan 2012 (the LEP). The land use table for that zone in the LEP is a conventional one which sets out, in cll 2 and 3 of that element of the land use table, those forms of development which are permitted - without consent in cl 2 and with consent in (3). Clause 4 deals with the question of prohibited development and it determines as being prohibited all elements of development for purposes that are innominate.
In this case the activities which have been undertaken on the land and about which the council complains, are use of the land for a function centre, that being a defined term in the dictionary to the LEP in the following terms:
function centre means a building or place used for the holding of events, functions, conferences and the like and includes convention centres, exhibition centres and reception centres but does not include an entertainment facility.
There are two matters to be observed with respect to that definition:
1. the first is that it is an inclusionary definition and not an exclusively defining one. That is, that the nominated aspects within the definition are illustrative but not exhaustive. Therefore, it is possible for a private residential property to be being used as a function centre as defined; and
2. the second is that there is no requirement that the use of a property for the purposes of a function centre as defined has to be for profit or reward.
In the present proceedings, The Hills Shire Council (the Applicant) seeks, on an interlocutory basis, three orders concerning the activities at the premises at 11 Ascot Road. They are:
1. First, that the Respondent, her servants and agents be restrained from using, causing or permitting the land to be used for the purposes of a function centre;
2. Second, that a similar prohibition or restraint be imposed on the Respondent, her servants and agents from using the premises for the purposes of commercial photograph and commercial videography as such a use would render the purpose of the use of the premises to be as commercial premises also prohibited development in the RU6 zone; and
3. The third proposed order would put a restriction on the Respondent, her servants and agents requiring them to be restrained from advertising the premises for the purposes of a function centre or for the purposes of a commercial premises.
I indicated that the material contained in the eight affidavits which have been read in whole or in part on this interlocutory application do not provide me with any sufficient basis, on this interlocutory application it is to be emphasised, to conclude that there were commercial activities being undertaken by the Respondent, her servants or agents at the premises.
As a consequence, I indicated to Mr Wright, Senior Counsel for the Applicant, that I was not prepared to make proposed Orders 2 or 3(ii) and he indicated that at this stage he did not press for them to be made.
I now turn to consider the material that is before me relating to activities on the site which might be regarded as falling within the definition of a function centre. The various affidavits that are before me deal with activities that took place on the site on two occasions - the first being 25 November 2017 and the second being 9 December 2017.
Mr Mantei, solicitor appearing for the Respondent, raised issues with respect to both of those dates. It is unnecessary for the purposes of this interlocutory application that I need rely on what took place on the site on both occasions for the purposes of making orders 1 and 3(i) in the application in the notice of motion.
It is sufficient for these purposes that I deal only with the activities that took place on 25 November. The affidavit of Mr Naidu sworn on 7 December 2017 discloses that he inspected the exterior of the premises commencing at approximately 8.30pm on Saturday, 25 November. He appends to his affidavit a variety of photographs taken during the course of the evening which make it clear that there was an attendance of a significant number of people at the premises on that evening.
He also appends to his affidavit a variety of materials extracted from social media that make it clear that the activity which took place on 25 November was one attended by a significantly large number of people who paid an organiser for the purposes of attending on that occasion. It is unnecessary for me to conclude that any of that attendance cost was passed through to Ms Needham. That is a matter which remains for being dealt with, if necessary, at the substantive hearing.
However, there is no doubt that, for the purposes of the definition of function centre, what took place at the premises on 25 November was an event of a fashion or a kind which would cause me to conclude that it fell within the scope of the definition as contained in the LEP and applicable to the site.
Mr Mantei resisted the making of any interim order. He took me to the decision of the Court of Appeal in Wilkie v Blacktown City Council & 3 Ors (2002) 121 LGERA 444; [2002] NSWCA 284. I am satisfied that that which was dealt with by their Honours in that decision is not relevant in the present purposes where there is no doubt in my mind that Ms Needham is both the owner of the premises and has not subordinated, in any fashion, her ability to control activities which were undertaken on the premises and in circumstances where it could not be said that she has passively stood by under circumstances where the activities were undertaken in a fashion where she did not know and could not prevent the activities from taking place.
The matters that are set out in (8) of the affidavit of Mr Cabusas, dated 7 December 2017 - where he attests to having had a conversation with a person who nominated herself as "Norma" on the morning after the function on 25 November with that person attesting that there was knowledge by that person of the event held; as to what had occurred on 25 November; and that that person, it is reasonable to infer, was the Respondent - support a finding that she was aware of and condoned the holding of the event on 25 November.
Under those circumstances, it is appropriate to contemplate making the orders that are sought in proposed Orders 1 and 3(i). I indicated, during the course of the hearing, that it would be appropriate for me to make those orders - if I were persuaded to do so - for those orders only to be operative until 5pm on Wednesday, 7 February 2018, the substantive hearing in these proceedings being scheduled to be heard on 7 and 8 February 2018.
I observe, for completeness, that Mr Wright, on behalf of the Applicant, does not proffer the "usual undertaking" as to costs and damages. I am satisfied, as is conventionally the case, that it is not appropriate to require such an undertaking as the Applicant is a public authority seeking to protect the public interest by protecting the integrity of the planning system; that being the significant function of such public authorities.
It is therefore appropriate to make the orders sought in Orders 1 and 3(i) of the application. It would seem to me that the appropriate course with respect to costs is to reserve the question of costs and enable that to be dealt with in the substantive hearing in February. I therefore make the following orders:
1. The Respondent is restrained by herself, her servants and agents from using, causing or permitting the land known as lot 1 in Deposited Plan 31243 (11) Ascot Road, Kenthurst to be used for the purposes of a function centre including the holding of events, functions, conferences, wedding receptions and the like;
2. The Respondent by herself, her servants and agents is restrained from advertising or promoting the premises at 11 Ascot Road, Kenthurst by any means including via websites and/or services such as AirBnB or Stayz as being available for use for the purposes of a function centre including the holding of events, functions, conferences, wedding receptions and the like;
3. The orders in Orders (1) and (2) are to expire at 5pm on Wednesday 7 February 2018 unless otherwise extended by further order of the Court;
4. Matter is adjourned until 10am on 7 February 2018;
5. Liberty to relist on two days' notice; and
6. The Notice to Produce to the Court is listed for 9.30am on Friday 19 January 2018 before the Duty Judge.
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Decision last updated: 15 December 2017