Athens v Randwick City Council - [2002] NSWCA 83

No judgment structure available for this case.

CITATION: Athens & Anor v Randwick City Council [2002] NSWCA 83

FILE NUMBER(S): CA 40466/01

HEARING DATE(S): 21 March 2002

JUDGMENT DATE:
15 April 2002

PARTIES :

Peta Athens & Athens Holdings Pty Ltd - Appellants
Randwick City Council - Respondent

JUDGMENT OF: Handley JA at 1; Beazley JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : LEC 40097/00

LOWER COURT
JUDICIAL OFFICER : Sheahan J

COUNSEL: T K Tobin QC & M Fraser - Appellants
A J Thompson & S Flanigan - Respondent

SOLICITORS: Selby Kent Levitt - Appellants
Bowen & Gerathy - Respondent

CATCHWORDS: Use of premises in contravention of planning laws - application for restraining orders - discretion under s 124 of Environmental Planning and Assessment Act 1979 - orders made - stays of orders for various periods - whether adequate reasons given for orders and for stays - whether so far as reasons apparent exercise of discretion was erroneous - whether further evidence should be received. D.

CASES CITED:
ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67;
Akins v National Australia Bank (1994) 34 NSWLR 155;
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430;
Commonwealth Bank v Quade (1991) 178 CLR 134;
Housing Commission of New South Wales v Tatmar Pastoral Co Ltd (1983) 3 NSWLR 387;
Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639;
Mifsud v Campbell (1990) 21 NSWLR 725;
Nyerlucz v Dei Rocini (CA, 8 September 1995, unreported).
Pettitt v Dunkley (1971) 1 NSWLR 376;
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;
Strbak v Newton (CA, 18 July 1989, unreported);
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335;
Wollongong Corporation v Cowan (1955) 93 CLR 435.

DECISION: Appeal dismissed with costs.

CA 40466/01
LEC 40097/00

HANDLEY JA
BEAZLEY JA
GILES JA
Monday 15 April 2002

ATHENS & ANOR v RANDWICK CITY COUNCIL

Judgment

1 HANDLEY JA: I agree with Giles JA.

2 BEAZLEY JA: I agree with Giles JA.

3 GILES JA: The second appellant owns 40 Coogee Bay Road, Coogee (“the property”). The first appellant is a director of the second appellant and manages the property on its behalf. The property is within the local government area of the respondent.

4 On 30 June 2000 the respondent filed a class 4 application in the Land and Environment Court in which it claimed -

“1. An order that the First and Second Respondents be restrained from using the premises at 40 Coogee Bay Road, Coogee for the purpose of Backpackers’ Accommodation.

2. An order that the Respondents remove all structures erected for the purpose of providing beds, platforms and mezzanine accommodation from all rooms within 40 Coogee Bay, Road, Coogee.

3. An order that the Respondents be restrained from using the double carport at 40 Coogee Bay Road, Coogee, other than in accordance with development consent granted by Notice of Development dated 19 November 1996.

5. An order that the Respondents demolish and remove unauthorised additions to the front fence at 40 Coogee Bay Road, Coogee and reinstate it to its condition prior to the unauthorised work.

6. An order that the Respondents be restrained from using Garages 9 and 10 for the purpose of habitable rooms.

7. An order that the Respondents be ordered to remove sliding glass doors to Garages 9 and 10 and to restore them for the purpose of carparking.

8. An order that the Respondents pay the Applicant’s costs of these proceedings.

5 The application was heard by Sheahan J on 8 December 2000 and 29 and 30 May 2001. On 8 December 2000 his Honour made by consent orders to the effect of claimed orders 2, 6 and 7, an order that the consent orders be complied with by 31 December 2000, and an order that the appellants pay the respondent’s costs in relation to the consent orders. The hearing of the respondent’s claim to the remaining orders proceeded.

6 The trial judge gave judgment on 1 June 2001. He made order 1 as claimed and stayed its operation until 31 March 2002. He made orders 3 and 4 as claimed and stayed their operation until 30 June 2001. He made order 5 as claimed and stayed its operation until 30 September 2001. The appellants were ordered to pay the respondent’s costs of the proceedings.

7 The appellants appealed. The grounds of appeal as filed were not fully taken up in the appellants’ submissions. The appellants’ contentions were three. First, they said that the trial judge erred in law in failing to provide adequate reasons for his decisions (other than as to costs). Secondly, they said that, to the extent to which the reasons for making order 1 as claimed could be discerned, the trial judge erred in law in the exercise of his discretion to make or decline to make the order. Thirdly, and going beyond the grounds of appeal as filed, they sought to rely on further evidence which they said showed that the outcome of the trial was tainted. On all or any or all of these bases the appellants sought an order for a new trial.

The property and its zoning

8 The second appellant acquired the property, a large three storey building, in the early 1970’s. At the time of acquisition it was divided into ten self-contained flats, each with a kitchen and bathroom and from one to five bedrooms. As existing tenants left the second appellant furnished the bedrooms and rented them out as short term budget price accommodation for students, tourists and other such persons.

9 Under the Randwick Local Environment Plan gazetted on 18 May 1990 (“the 1990 LEP”) “backpacker accommodation” was prohibited in the zone in which the property stood. “Motels” and “serviced apartments” were also prohibited, but “boarding house” accommodation was permitted with consent. From the relevant definitions, the essential distinction was between temporary accommodation for tourists or travellers and accommodation which was not temporary, and the definition of “boarding house” specifically excluded (amongst other things) backpacker accommodation.

10 In 1991 the appellants applied to the respondent for consent to the use of the property as “existing lodging house”. “Lodging house” was not a description used in the 1990 LEP. Consent was granted to the use of the property as a boarding house.

11 Randwick Local Environmental Plan 1998 (“the 1998 LEP”) replaced the 1990 LEP on 26 June 1998. Again, “backpacker accommodation” was prohibited in the zone in which the property stood. Serviced apartments and boarding houses were permitted with consent, and motels were prohibited. The relevant definitions changed slightly, but revealed the same distinction; in particular, the definition of “boarding house” specifically required that there be “permanent accommodation facilities”.

12 In October 1998 the appellants applied to the respondent “to approve backpacker accommodation” at the property. In March 1999 the respondent refused consent, as a prohibited use and in any event on the merits.

13 Over a long period from no later than 1988 the property was nonetheless used for backpacker accommodation. The appellants conducted a substantial operation under the name “The Aegean Backpackers”. They advertised it as “Backpacker Accommodation & Resort”.

Adequacy of reasons - general

14 The appellants’ contention extended to all the orders, that is, the order in relation to use for backpacker accommodation, the orders in relation to the carport and the order in relation to the fence; it extended also to the respective stay orders.

15 The judicial duty to give reasons has been considered in a number of cases, and there was reference in the appeal to Pettitt v Dunkley (1971) 1 NSWLR 376; Housing Commission of New South Wales v Tatmar Pastoral Co Ltd (1983) 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Mifsud v Campbell (1990) 21 NSWLR 725; Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639; and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. It is an incident of the judicial process. While it is not restricted to cases in which there is a right of appeal, one foundation is that a party should be able to understand why a decision was made sufficiently to allow any right of appeal to be exercised; but fulfilment of the duty also precludes a feeling of injustice through not understanding why the decision was made and contributes to maintaining the integrity and acceptance of judicial decision making.

16 What is sufficient to fulfil the duty, however, depends on the circumstances. The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning: indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration. Thus Samuels JA, with whom Gleeson CJ and Priestley JA agreed, said in Strbak v Newton (CA, 18 July 1989, unreported) -

“What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.

In the present case, the reasons are certainly succinct; but that is often to be regarded as a judicial virtue. Trial judges must always endeavour to balance their duty to explain with their duty to be brief.

In the present case it may be that his Honour could have embroidered his reasons further, but from what he says and from inferences which very plainly arise, his course of reasoning towards the decision on foreseeability is clearly revealed.”

17 In determining the adequacy of reasons it is necessary to have regard to the conduct of the proceedings. For example, a matter of fact or law which in the course of the proceedings was common ground or plainly fell one way may sufficiently be stated without more or even assumed; or it may be appropriate that, where the parties left an ancillary matter to the judge’s determination without meaningful submissions, it is treated accordingly in the reasons. It must be remembered that reasons are given in a context, and are working instruments. So in Kiama Constructions Pty Ltd v Davey at 640 Mahoney P, with whom Priestley JA generally agreed, noted that what reasons are to be given will depend, amongst other things, on what has been made apparent to the parties in the course of argument, and that there is no need to deal with what has become unarguable.

The trial judge’s reasons

18 The trial judge noted the making of the consent orders. He noted that the appellants conceded that the property was being used for backpacker accommodation and that the use was unapproved and prohibited. The issue was whether the court should exercise its discretion in favour of the appellants. The discretion arose because by s 124 of the Environmental Planning and Assessment Act 1979 the Court “may make such order as it thinks fit to remedy or restrain” a breach of the Act.

19 The trial judge outlined the planning regimes and the planning history of the property, in a little more detail than I have done. In the course of doing so he noted the first appellant’s evidence that in the years after 1991 the second appellant had spent approximately $1 million upgrading the property and making it safer for those taking temporary accommodation in it. He referred to proceedings brought by the respondent against the second appellant in 1991 in which an order was made precluding use of the property “for residential purposes or for a boarding house or lodging house or ‘backpackers’ hostel’” until some fire safety work had been carried out, and that in an affidavit of one of the respondent’s officers filed in those proceedings it was said that the property was being used as a lodging house or boarding house and was “mainly occupied by backpackers” and being used “mainly for ‘backpackers’”. It is evident that his Honour was making the point that, although use of the property for backpacker accommodation was prohibited, in 1990-91 the respondent was aware that the property was being used for backpacker accommodation.

20 The trial judge also referred to orders made in proceedings brought by the respondent against the second appellant in 1997, the orders being “essentially to forbid and overturn the provision of additional sleeping accommodation in the premises by the use of ‘mezzanines’”. Mezzanines, it seems, are a kind of intensive occupancy sleeping accommodation. His Honour must have had in mind that the consent orders included an order that the mezzanine accommodation be removed, a matter to which he returned.

21 The trial judge noted that, from the definitions in the 1990 and 1998 LEPs it could be seen that the respondent had taken care to distinguish between various types of residential accommodation. He did not elaborate, but plainly was conscious that the prohibition on backpacker accommodation in the zone in which the property stood was a considered planning decision.

22 The trial judge undertook a consideration principally of evidence of the appellants’ conduct of the backpacker operation at the property. He referred to the evidence of Mr Kenneth Finn, a former councillor and sometime mayor of the respondent who was supportive of the appellants and considered that the operation was well conducted. He referred to the evidence of Mr John Bourke, who had for a long time been the appellants’ architect and planner and said that in 1990 the premises had been significantly upgraded and renovated to provide better bathrooms and kitchens and a new combined laundry facility and that they were adequate to accommodate up to 150 persons in “backpacker” style.

23 Particularly material to the orders in relation to the carport and the fence, the trial judge said at this point in para [31] of the reasons -

“Bourke responded to some of the Council evidence, indicating that, in his opinion, the carport and fence are in substantial compliance with Council’s determinations of 1990, 1991, and 1996 and 1997, properly understood by reference to Council-approved plans, some of which, Bourke suggested, were missing from Council’s relevant exhibits (Exhibits R2, R2, R4 and R5).”

24 The trial judge went through a number of letters relied on by the respondent and the appellants, letters of criticism and complaint on the one hand and commendation and support on the other hand (but one writer had written letters two years apart with a change of stance in between). The letters were from neighbours, from local or other businesses (for example the NSW Backpacker Operators Association), and from persons who had stayed in the accommodation. The letters were not all of recent origin: many of the letters relied on by the respondent were from its files concerning the 1998 application for backpacker accommodation approval.

25 The trial judge considered the affidavit and in some cases oral evidence of witnesses on whom the appellants relied, eleven neighbours and six other persons. A number of the neighbours were the writers of letters relied on by the appellants, so there was a kind of doubling-up. All deponents were commendatory of the appellants’ operation, and in various ways and to varying extents said that they had no or no significant complaints about noise, litter or such matters and thought that the operation was well conducted; some said that they thought the property was an asset to the area or beneficial to tourism. The trial judge also referred to some evidence of the first appellant, including that he “assured the court that he always abides by the Council’s requirements”. He referred to the affidavit of a witness on whom the respondent relied, Mr Ronald Coshott; the affidavit also annexed a great many of the letters relied on by the respondent.

26 At the conclusion of this consideration the trial judge said -

“51. I am satisfied, from all the evidence, that the respondents probably now operate - as regular customer Glyn Smith (last item in Exhibit B2 ) says - " one of the cleanest, modern, well-furnished hostels in Sydney ", and that, generally speaking, Athens himself has personally enforced a fairly strict set of rules when he has actually been in charge.

27 The trial judge’s reasons then continued -

The Council's other evidence

Exhibit R4

Exhibit R2

Exhibit R3

Exhibit R5

consistently refused

(a) Athens himself testified (par 14 of his affidavit dated 22 September 2000) about a meeting with then Council officer Messina in July 1990, in which, he says, Messina told him " you can't get consent for backpacker accommodation in that area ".

cease operations as backpacker accommodation

(c) On 10 February 1995, Commissioner Hussey of this court noted ( Exhibit B1 ) the apparent lack of Council's consent for the operation of the subject premises as " backpacker accommodation ".

(d) The local Precinct Committee wanted the operation limited, in 1998, to 86 beds, and the Council to set up a " complaint line " (see minutes of meeting 26 October 1998, at Exhibit R8 , p40).

5/8/98

08/10/98

approve backpacker accommodation

(f) These appear to be at least the third set of class 4 proceedings brought by Council.

55. Yet, on 2 June 2000, Athens reportedly claimed to Kyriacou (ibid, par 16 on page 6) that:

(a) "Council gave me a boardinghouse licence (sic) to trade as a backpackers", and

56. Van Dam counted 150 beds on the premises on that date (2 June 2000), and the mezzanine lofts appeared to him to be still in use for accommodation (6 months after Talbot J's orders). He contradicts Bourke's assertion that the "enclosures" made to the carport are "of a minor nature". He believes they changed the character of the structure from a carport to a habitable room. He also refuted Bourke's evidence regarding the fence, noting that condition 17 of the Determination 576/88 required front courtyard fencing to be made the subject of a separate building application. No such approval has been given, according to Van Dam, and the Notice of Determination to that effect was sent to Bourke's business address. Bourke's oral evidence (see par 31 above) was not supplemented by the tendering of any documentary evidence to support his assertions, and the court accepts the Council officers' evidence regarding what Council has or has not approved in respect of the Athens premises and operation.

57. Council also relied upon an affidavit by a private inquiry agent, Simon Hewlett-Smith, who checked into "The Aegean" over a period in May 2000. Hewlett-Smith took several "unfavourable" photographs, including of the so-called "carport", and made several critical observations. Athens' prices were then basically $18-$22 per night per bed. Hewlett-Smith found the premises quite dirty and untidy. Annexed to his affidavit are various brochures advertising the Aegean as a "backpackers accommodation and resort", providing free airport and city pick-ups, etc. He was not required for cross-examination, but Athens put on his affidavit of 30 November 2000 in reply.” (emphasis in original)

28 The trial judge then referred to what he described as the guidelines laid down by Kirby P for the exercise of the court’s discretion in civil enforcement proceedings, saying that “it is important to see the discretion in its proper context, including that provided by s 123 and s 124 of the Environmental Planning and Assessment Act 1979”. He cited passages from Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-40 and 342 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82. Because it was later specifically taken up, I repeat the citation from ACR Trading Pty Ltd v Fat-Sel Pty Ltd -

ACR

Nevertheless, it is important to appreciate the wide scope and purpose of the discretion conferred by s 124 of the Act. Clearly, it is not a warrant to set at nought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case. On the other hand, it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts. ... It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction.”

29 The trial judge’s reasons continued -

“62. On behalf of the respondents, Mr Davison relies on the following aspects of the evidence in support of his application for the court to decline, in its discretion, the relief sought by Council:

(a) Athens is clearly a good " backpacker " operator, and has conducted a multiple occupancy facility in the subject premises for nearly 30 years, following many years of earlier similar use (see Sedevcic ).

resident parking

(c) The " backpacker " operation adds to the local, regional and national economies, and the general social good.

(d) The nearest and most immediate neighbours are most supportive of the operation. The major opposition comes from a " campaign " orchestrated by one person (Coshott), who may have a grudge over a commercial issue, and Council did not seek to test the evidence of those neighbours who support Athens.

backpacker

acquiesced

(f) Athens was certain he was complying with Council's requirements at all times, and did only works which substantially conform with development consents.

(g) Council became active only when Coshott's campaign began and so is guilty of laches and delay .

(h) One of Council's leading members (Finn) had relevant expertise, but was consistently supportive of, and helpful to, Athens in his difficulties with Council.

tighter

de minimis

64. Alternatively, he argues that, if the orders are made, they should be either:

(a) stayed permanently, with liberty to apply; or

65. Mr Thompson submits that all the orders sought by Council should be made, and stayed for only 6 months at most, on the following grounds:

(a) Council concedes that Athens is a good operator, but the subject premises are within an inappropriate zone . He should be able to succeed in a more appropriate location, reflected by the zonings as revised in 1998.

(c) Had Athens faithfully followed Council's requirements, and acknowledged its concerns, class 4 proceedings such as these, and those in 1991-4 and 1997, would not have been necessary.

(d) Council repeatedly warned Athens, from 1990 onwards, that he was operating outside the law. Several sets of proceedings were commenced, and, once the Council's legal and planning position was affirmed by the making of LEP 1998, it gave him further time, to no avail - he has done whatever he wanted over those 11 years.

commercial zones

66. In addition, the court notes that Athens is no longer resident on-site, and his commitment to the enforcement of strict rules cannot be guaranteed to be carried on by others in his absence.

Conclusions

7. The court concludes that the Council's position should be upheld and that all the orders it seeks should be made, including those which are relatively minor (the carport, fence and internal walls). These latter orders are justified on the evidence, as part of an overall package of relief.

68. The overall conduct of the respondents in respect of their obligations under this State's planning laws disentitles them to the benefit of the court's discretion, on the evidence before the court. Those laws simply must be observed.

ACR

costs

follow the event

time

30 The orders to which I have referred were then made.

Adequacy of reasons – making claimed order 1

31 The appellants submitted that, while the trial judge had found that the backpacker operation was well conducted, he had not otherwise made clear findings as to matters such as the extent to which there was noise or other disturbance to neighbours; the extent to which the use of the property for backpacker accommodation contributed to the amenity of the neighbourhood or was more widely beneficial to the community (for example because of a contribution to tourism); the adverse consequences to the appellants and others if the use of the property for backpacker accommodation were restrained; and the categorisation of the respondent’s position prior to bringing the proceedings as acquiescence or as constituting laches and delay. Nor, it was submitted, could it be seen what the trial judge had in mind as the overall conduct of the appellants which disentitled them to a favourable exercise of discretion, or what matters the trial judge had balanced and with what respective weights in exercising his discretion. The appellants acknowledged in their written submissions that it may be open to infer how the trial judge had reasoned, although I am not sure that any such concession survived their oral submissions: in any event, they said that inference was not enough. Rather, they submitted, the reasons did not rise above what Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd at 259 described as “an assertion of satisfaction on undifferentiated evidence”.

32 For the following reasons, I do not think that these submissions should be accepted.

33 There was in truth little factual conflict in the proceedings, although the respondents and the appellants naturally sought to characterise the facts in ways attractive to their respective positions.

34 The status of the property under the 1990 and 1998 LEPs was clear. That use of the property for backpacker accommodation was prohibited was clear. The appellants knew, and had been told by the respondent, that the use of the property for backpacker accommodation was not permitted and should be stopped. The second appellant had been granted approval only for boarding house accommodation in 1991, and had applied for and been refused approval for backpacker accommodation in 1998-99. The appellants had nonetheless at all times used the property for backpacker accommodation. The other proceedings had been necessary to require the appellants to carry out the fire safety work and to cease using the mezzanine accommodation. All this the respondent characterised as the appellants doing whatever they wanted for 11 years. It was self evident that, if the appellants had complied with the relevant obligations, none of the proceedings would have been necessary.

35 It was also clear that the respondent had not acted to restrain the use of the property for backpacker accommodation, although knowing of the use, for the period of the 1990’s; this the appellants characterised as acquiescence and laches and delay.

36 The appellants relied on the first appellant’s evidence that he complied with the respondent’s requirements at all times, but that was patently not so and was in effect rejected by the recitation of events in para [54] and the “yet” in para [55] of the reasons. That the appellants were “a good operator” was conceded. A number of people considered that the use of the property for backpacker accommodation did not give rise to noise or other such problems, but a number of other people thought that it did; this is not unusual, since some people are more tolerant than others. The appellants’ submissions to the trial judge recognised that there could be some adverse environmental impact, (see para [62](b) in the reasons), and the appellants sought to cut down the weight of the opposing views. But it did not matter in the end, because the respondent’s submissions to the trial judge did not rely on adverse environmental impact. More than a recognition of differing views in the neighbourhood was unnecessary, and the discretion went against the appellants notwithstanding the preponderance of neighbourhood opinion on which they relied.

37 It was obvious that in some ways the backpacker operation was beneficial, for example by providing accommodation to tourists who spent money and provided social diversity. Again, in the end the respondent’s submissions to the trial judge did not dispute that matter, or assert that the backpacker operation was detrimental to any economy or the general social good; the respondent said that any such good could and should enure in and from the location where it was permitted under the planning laws. There was no evidence of the appellants to the contrary of ability successfully to return the property to or convert it to approved use as a boarding house or a residential flat building.

38 The summations of the respective positions in paras [62] and [65] of the trial judge’s reasons were substantially not in factual conflict. The trial judge had to exercise his discretion having regard to all those matters. He said, briefly but adequately, why he exercised his discretion as he did.

39 The consideration of greatest weight, in the trial judge’s assessment, was what the trial judge referred to as “the overall conduct of the respondents in respect of their obligations under this State’s planning laws”. What he meant by that can be seen from paras [53] – [57] of the reasons dealing with the Council’s other evidence. It was not spelled out in this way, but what his Honour was there noting came down to -

(i) the first appellant had been aware since 1990 that use of the property for backpacker accommodation was prohibited;

(ii) in 1994 the respondent had told the first appellant that the use had to cease;

(iii) the appellants had sought to regularise the position in 1998 but approval had been refused;

(iv) the first appellant had nonetheless recently asserted that the appellants were able to use the property for backpacker accommodation;

(v) The backpacker operation was a large scale business;

(vi) apart from the use of the property for backpacker accommodation the appellants’ conduct had been such that two earlier proceedings had been necessary (these must have been the 1991 proceedings concerning fire safety work and the 1997 proceedings concerning the mezzanine accommodation);

(vii) the mezzanine accommodation was in use as at 2 June 2000, contrary to the orders of Talbot J;

(viii) the work done to the carport had been done without necessary approval; and

40 This was a significant course of conduct in “operating outside the law”, taking up the words attributed to the respondent’s submissions. Part of the conduct was the trial judge’s conclusion that, while relatively minor, the work done to the carport and the additions to the fence were conduct in contravention of the planning laws calling for orders, as to which see later in these reasons.

41 Although not a matter raised by the appellants, in the hearing of the appeal it seemed that there was an error in the trial judge’s statement (in para [56] of the reasons) that it appeared to Mr Van Dam that the mezzanine lofts were “still in use for accommodation (6 months after Talbot J’s orders)”. While it was not particularly clear, the better view of the evidence is that the mezzanine accommodation was removed following Talbot J’s orders in 1997 but some mezzanine accommodation was re-installed a few months before Mr Van Dam’s inspection on 2 June 2000. I do not think this materially affects the course of conduct: there may or may not have been infringement of Talbot J’s orders, but there was knowing infringement of the planning laws as reflected in the orders.

42 But the trial judge did not restrict the considerations material to his exercise of discretion to that conduct of the appellants. He applied the test of injustice or disproportionality, from the citation from ACR Trading Pty Ltd v Fat-Sel Pty Ltd meaning that he asked whether to make the order would work such an injustice to the appellants as to be disproportionate to the ends secured by enforcement of the planning laws. From the recitation of the submissions, he must have taken into account injustice to the appellants as urged on their behalf, for example that they had expended considerable money, that they had improved the conduct of the backpacker operation, that it was a good operation, and that there had been the lengthy period for which the respondent had not brought proceedings to prevent use of the property for backpacker accommodation although aware that it was being so used. This last matter obviously involved taking into account that the appellants had known that their use of the premises was prohibited and had been told that it should be stopped. From the recitation of the submissions, he must have taken into account in the ends to be secured that some people were and other people were not troubled by the use of the property for backpacker accommodation but that adverse environmental impact was not a consideration urged against the appellants; he must have taken into account that, although prohibited, the use brought some benefits, although benefits not wholly lost if the order were made; and he must have taken into account the considered planning decision to have backpacker accommodation only in appropriate zones.

43 In the light of his earlier summations of matters on which the parties relied the trial judge carried out an exercise in judgment. He was of the view that the appellants’ conduct in knowingly operating outside the law and in contravention of the obligations the law imposed, not only in relation to the use of the property for backpacker accommodation but in the other respects to which he had referred, when weighed in the scales with all other matters brought the scales down against the appellants. There might be agreement or disagreement with the trial judge’s balancing, but the considerations he took into account and the striking of a balance were sufficiently exposed.

Adequacy of reasons – the stay of claimed order 1

44 Counsel for the respondent addressed the trial judge first. He said, “If there is any time to be given, well, that is a matter for the Court, but we would submit to you that nothing beyond six months should be considered to permit an ordered early change of use to either a boarding house, which is a permitted use … “. Counsel then observed that “there was some correspondence there where it talked about returning it to residential flats”, which required consent, and suggested that because the property was originally ten self-contained flats “it is a fairly simple matter to seek consent and have the use returned to either a residential flat building or, if he chooses to resume the consent, for use as a boarding house”. That was all that was said in relation to a stay.

45 Counsel for the appellants was even less forthcoming. He said that if the Court were concerned that the backpacker operation might be sold to someone else and not managed as well, the Court could grant a permanent stay on terms that the property continued to be owned and managed by the appellants and grant liberty to apply; he then said, “One thing I note that I did not respond to: my friend said that if the Court were persuaded to make orders and to consider a suspension, it should be no more than six months. We would say the appropriate time in that circumstances (sic) would be 12 months”.

46 We were not taken in the appeal to any evidence more specifically relevant to any appropriate period for which the order might be stayed, for example, evidence going to how long it might take to convert the property for use as a boarding house or to obtain consent for and convert it to use as a residential flat building, save that there was evidence that the appellants had internet forward bookings until about January 2002. The trial judge’s reasoning excluded the suggested basis for a permanent stay with liberty to apply, and it was unnecessary for him otherwise to refer to that rather diffident suggestion. The trial judge was left to strike a reasonable period for the appellant to change the use of the property, without assistance from the evidence or from more than statements of position in the submissions. He allowed ten months. That was not an obviously unreasonable period, and it was not far short of the period the appellants suggested was appropriate. In the circumstances, it was sufficient for the trial judge to state the period.

Adequacy of reasons – making claimed orders 3 and 4

47 It was not contested that the work done to the carport had been done without approval. The trial judge said that, although the work was “relatively minor”, the orders were “justified on the evidence as part of an overall package of relief” (see para 67 of the reasons): the reference to internal walls is a little curious, but in the appeal it was accepted that the trial judge must have meant the work done as next described. The appellants submitted that the reasons did not sufficiently explain the resolution of a conflict between Mr Bourke for the appellant and Mr Van Dam for the respondent, noted by the trial judge in para [56] of the reasons, the former saying that the work was de minimis and the latter saying that it was not and changed the character of the carport.

48 The carport was a double carport at the road frontage of the property. Mr Van Dam said in his affidavit sworn on 23 June 2000 that when he inspected the property on 23 September 1999 the rear of the carport had been enclosed with glazing; the western side of the carport had been enclosed with brickwork; the eastern side of the carport had been enclosed with brickwork containing a window; and a small pitched roof had been erected over the opening of the carport at the road alignment. The respondent wrote three letters to the appellant saying that this was not approved and had to be remedied. Mr Van Dam said that when he inspected the property again on 11 January 2000 he saw that a wall mounted television stand had been installed on the western side of the carport; a drink vending machine and a snack vending machine had been installed on the same side; some signs had been put up reading “No Noise”, “No Parking” and “Cigarette butts are to be placed in bins”; twenty medium sized lockers and twelve large sized lockers had been installed along the eastern side of the carport; and the carport contained a table and two chairs, each chair being occupied by a person reading and with music playing. He said that when he inspected the property again on 2 June 2000 the enclosing of the carport remained and the carport contained “a utility truck, 11 chairs, 2 tables, 32 lockers, a television mounted on the western wall, a drink vending machine and a snack machine”.

49 Mr Bourke said in his affidavit sworn on 22 September 2000 that “the glazing on the rear, side and roof of the carport is of a minor nature which encloses existing openings and should be regarded as an exempt development”; he asserted that there had been substantial compliance with the approval pursuant to which the carport had originally been erected.

50 In reply Mr Van Dam said in his affidavit sworn on 13 November 2000 that the enclosures to the carport he had earlier described “are not of a minor nature and in fact change the character of the structure from carport to a habitable area and which was used as a habitable area … “.

51 Mr Bourke referred only to glazing. Photographs in evidence fully bore out Mr Van Dam’s description of the enclosing and the use of the carport. Counsel for the appellants did not in submissions to the trial judge contest the work done or the use of the carport as described by Mr Van Dam, or submit that the work was de minimis. Counsel submitted to the trial judge that the carport might still be “functioning or capable of functioning as a place to house two motor vehicles”. With commendable restraint the trial judge commented, “It could be a drive-in … With the TV on”. Even if by glazing Mr Bourke had meant to refer to the brick walls, his assertion of work of a minor nature was absurd. At the close of submissions there was no true dispute for the trial judge to decide In the state of the evidence and submissions, it was not necessary for the trial judge to say more than he did, finding that the work done to the carport and its offending use were more than de minimis although in comparison with the use of the property as a whole for backpacker accommodation not of the same significance.

Adequacy of reasons – the stay of claimed orders 3 and 4

52 Neither counsel for the appellants nor counsel for the respondent made any submission to the trial judge about stay of the orders. So far as appears, there was no evidence particularly directed to, for example, the time required to undo the work done to the carport. On one view the appellants were not entitled to any stay, because they did not apply for a stay in the event that the orders were made. More realistically, the parties left it to the trial judge to stay the orders for such period as seemed appropriate. This the trial judge did, and a month could not be said to have been an unreasonable period. In the circumstances, no more was required in the trial judge’s reasons.

Adequacy of reasons – making claimed order 5

53 The appellants accepted that the trial judge had found that approval had not been given for the additions to the fence, and that his reasons sufficiently revealed why he did so. The trial judge’s statements earlier noted applied also to this work, namely that although the work was “relatively minor” the orders were “justified as part of an overall package of relief”. The appellants submitted that the reasons did not sufficiently explain the resolution of another conflict between Mr Bourke and Mr Van Dam over whether the additions were de minimis.

54 In his affidavit of 23 June 2000 Mr Van Dam said that the brick fence on the street alignment had been increased with colourbond infill panels fixed to the top of the brickwork, so that the fence was 1.6 to 2.3 metres in height, and that driveway gates had been added. He told the first appellant that the additions required consent. In his affidavit of 22 September 2000 Mr Bourke said that the fence was substantially in compliance with an approval, which he identified, which he said “showed a wall height of 1800 mm at the top of the driveway”. In his affidavit of 13 November 2000 Mr Van Dam said that the approval had excluded the fence. In his oral evidence Mr Bourke appeared to accept this, and suggested a different approval justifying the addition to the fence. By his finding the trial judge was against the substituted approval.

55 It followed inevitably that there was no approval with which the additions to the fence were substantially in compliance. Mr Bourke’s evidence as to the fence noted in paras [31] and [56] of the reasons had no foundation: given the finding as to approval, there was on the evidence no room for the additions to the fence being de minimis. Counsel for the appellants submitted to the trial judge that they should be regarded as de minimis, but clearly enough on the basis that there was the approval which the trial judge’s finding denied. It was not necessary for the trial judge to say more than he did.

Adequacy of reasons – the stay of claimed order 5

56 The position was materially the same as for claimed orders 3 and 4. If anything, the period allowed was generous to the appellants.

Error in the exercise of discretion

57 The appellants submitted that, to the extent to which the trial judge’s reasons for his exercise of discretion in making order 1 as claimed could be discerned, he had done no more than resolve that the planning laws must be observed. This, they said, was rigid enforcement of the planning laws in negation of the discretion conferred by s 124; it was not an exercise of discretion.

58 It follows from what I have already said that I do not accept this submission. The reasons must be read as a whole. They are not confined to the last sentence of para [68], or to para [68] at all. On the reasoning to which I have already referred, the trial judge took as one of the considerations relevant to his exercise of discretion that the appellants had conducted the backpacker operation in contravention of the planning laws for some time, and by the last sentence in para [68] he made plain that he regarded compliance with the planning laws as a serious matter. He went on, through para [69] of the reasons, to complete the balancing to which I have referred. He did not confine himself to unforgiving enforcement of the planning laws.

The further evidence

59 Further evidence of matters occurring before the trial may be received in an appeal on special grounds, see s 75A(7), (8) of the Supreme Court Act 1970. Generally it is necessary that the evidence could not have been obtained with reasonable diligence for use at the trial; that it must be credible; and that it be such that there must be a high degree of probability that there would be a different result (Akins v National Australia Bank (1994) 34 NSWLR 155 at 160; see also CDJ v VAJ (1998) 197 CLR 172 at 185, 195-6 (with its reference to Wollongong Corporation v Cowan (1955) 93 CLR 435)). These conditions are guides, and it may be that special grounds are made out in other ways (Commonwealth Bank v Quade (1991) 178 CLR 134 at 140; Nyerlucz v Dei Rocini (CA, 8 September 1995, unreported)).

60 The letters of criticism and complaint on which the respondent relied included a letter from Ms Luisa Marquez dated 5 November 1998 objecting to the appellants’ 1998 application; another letter from Ms Marquez dated 14 September 1999 complaining of unauthorised work done to the carport and a number of other matters; two letters from Mr Justin Cox of the same dates and to the same effect; a letter from the secretary of Strata Plan 6862 dated 4 November 1998 stating that the owners of lots in the strata plan unanimously objected to the 1998 application; and a letter from the chairman of Strata Plan 6862 dated 14 September 1999 complaining of unauthorised work done to the carport and a number of other matters. The owners of the six lots in the strata plan identified in the first of the strata plan letters included “J Cox Lot 4, R Hepburn and Cook Lot 3”. Ms Marquez lived in a unit almost opposite the property in Coogee Bay Road, and the strata plan units were opposite the property in Coogee Bay Road.

61 The appellants sought to rely in the appeal on affidavits from Ms Marquez saying that she had not written or authorised the letters of 5 November 1998 and 14 September 1999 and did not agree with their contents: from Mr Rodney Hepburn saying that there had not been a meeting as indicated in the first of the strata plan letters and the signatory was not the secretary of the body corporate, and that there was not a chairman of the body corporate and no one had spoken to him about sending a letter expressing the sentiments in the second of the strata plan letters; from Ms Colleen Cook to the same effect as Mr Hepburn; and from Mr Cox to the same effect as Ms Marquez and Mr Hepburn (save that he did not expressly disclaim the sentiments in the letters). The appellants sought to rely also on an affidavit sworn by the first appellant in which he said that he first realised that the letters were not genuine when, in speaking to Ms Marquez in August/September 2001, he referred to her letters and she said that she had not written any letters; this led to enquiries of Mr Hepburn and Mr Cox which revealed that the other letters were suspect.

62 All the letters came from the respondent’s files, and with a possible qualification the appellants did not suggest that the respondent relied on them with knowledge that they were not or might not be authentic. The possible qualification was that the first appellant’s affidavit included double hearsay material to the effect that one of the respondent’s officers had been told by Mr Cox before the trial that the letters purporting to bear his signature were not signed by him. It was said, however, that this was not a matter for this Court to resolve. In the result, although the appellants referred to the outcome of the trial being tainted, they did not assert taint by improper conduct of the proceedings by the respondent. The reference to taint was not appropriate: the issue was whether the further evidence should be received in accordance with the principles briefly stated above.

63 Mr Hepburn had given evidence for the appellants, and with reference to the second of the strata plan letters had said in chief that he was “unaware of there being an owners corporation” and was “not aware of any body corporate meeting to discuss The Aegean”. Notwithstanding the possible question this might raise, I will treat the further evidence as evidence which the appellants could not have obtained with reasonable diligence for use at the trial; I will also treat it as credible evidence. The difficulty for the appellants is its significance to the result at the trial.

64 The appellants submitted that, because of the inadequacy of the trial judge’s reasons, the condition of a high degree of probability that there would be a different result could not properly apply, and that special grounds would sufficiently be made out if the Court were satisfied that there might be a different result. They said that in determining whether or not the use of the property for backpacker accommodation had an adverse environmental impact or was objectionable or detrimental to the neighbours and the neighbourhood, the trial judge might have been swayed by less opposition through the letters on which the respondent relied and, in its place, acceptance of the use of the property by at least some of the persons I have mentioned.

65 If the trial judge’s reasons were inadequate so that his reasoning can not be discerned, the appellants would have a new trial without needing to seek to rely on the further evidence – inadequacy of reasons does not inevitably mean a new trial (see Beale v Government Insurance Office of New South Wales at 444), but it was not suggested in the appeal that a new trial would not follow. If the trial judge’s reasons were adequate, then the probability that the further evidence would bring a different result can be assessed. For the reasons I have given, I consider that the reasons were adequate, and in deciding whether the further evidence should be received it is in my view appropriate to ask what its effect would be. I do not think there is the high probability of a different result.

66 The trial judge was thoroughly alive to the existence of different views, and different ranges of views. Some people were supportive of the continued use of the property for backpacker accommodation and some were against that use; and some people were critical of other matters in the appellant’s conduct of the backpacker operation at the property and some were more widely supportive of the appellants. The trial judge accepted that the appellants conducted a good operation, and in the manner I have described exercised his discretion having referred to the support and opposition for and to the use of the property for backpacker accommodation.

67 There is some flexibility in the following analysis, but it is broadly correct. The trial judge had about ten 1998 letters from neighbours opposed to the use of the property for backpacker accommodation, plus the Strata Plan 6862 letters and two letters from managing agents on behalf of neighbouring strata plan units. He had about seven 1999 letters from neighbours complaining of the work done to the carport and other matters, plus the Strata Plan 6862 letters. He had about ten 2000 letters and the eleven affidavits supportive of the appellants, there being overlap between the letter writers and the deponents. As I have mentioned, one letter writer fell into both camps. From the six owners of lots in Strata Plan 6862 Mr Hepburn and Ms Cook were supportive of the appellants through a 2000 joint letter and Mr Hepburn’s affidavit; Mr Michailovic, another owner of a lot in Strata Plan 6862 and the writer of one of the 1999 letters also gave a supportive affidavit. The stance of Mr Hepburn and Ms Cook at the trial was one of support, significantly cutting down if not negating any effect of the strata plan letters as indicating their opposition. If Ms Marquez and Mr Cox be re-categorised, there were still two of the owners of lots in Strata Plan 6862 opposed through letters, plus a fair number of other opponents. Any material addition to the supportive echelon would not be great. The figures can be argued over. But on the trial judge’s reasoning I cannot see that a change in the mix of support and opposition from neighbours of the kind which the further evidence would bring would have even a probability of bringing a different result, let alone a high probability.

68 I do not think that special grounds for reception of the further evidence have otherwise been shown. In my opinion, the further evidence should not be received.

The result

69 I propose that the appeal be dismissed with costs.

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Citations

Athens v Randwick City Council [2002] NSWCA 83

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CITATION:	Athens & Anor v Randwick City Council [2002] NSWCA 83
FILE NUMBER(S):	CA 40466/01
HEARING DATE(S):	21 March 2002
JUDGMENT DATE:	15 April 2002
PARTIES :	Peta Athens & Athens Holdings Pty Ltd - Appellants Randwick City Council - Respondent
JUDGMENT OF:	Handley JA at 1; Beazley JA at 2; Giles JA at 3

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40097/00
LOWER COURT JUDICIAL OFFICER :	Sheahan J

COUNSEL:	T K Tobin QC & M Fraser - Appellants A J Thompson & S Flanigan - Respondent
SOLICITORS:	Selby Kent Levitt - Appellants Bowen & Gerathy - Respondent
CATCHWORDS:	Use of premises in contravention of planning laws - application for restraining orders - discretion under s 124 of Environmental Planning and Assessment Act 1979 - orders made - stays of orders for various periods - whether adequate reasons given for orders and for stays - whether so far as reasons apparent exercise of discretion was erroneous - whether further evidence should be received. D.
CASES CITED:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; Akins v National Australia Bank (1994) 34 NSWLR 155; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Commonwealth Bank v Quade (1991) 178 CLR 134; Housing Commission of New South Wales v Tatmar Pastoral Co Ltd (1983) 3 NSWLR 387; Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639; Mifsud v Campbell (1990) 21 NSWLR 725; Nyerlucz v Dei Rocini (CA, 8 September 1995, unreported). Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Strbak v Newton (CA, 18 July 1989, unreported); Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; Wollongong Corporation v Cowan (1955) 93 CLR 435.
DECISION:	Appeal dismissed with costs.