Athens v Randwick City Council

Case [2002] NSWCA 83
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…

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Athens v Randwick City Council [2002] NSWCA 83
Case
[2002] NSWCA 83
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales heard an appeal concerning the use of premises in contravention of planning laws. The appellant, Athens, sought restraining orders against Randwick City Council. The primary dispute revolved around the Council's alleged failure to adequately justify its decision to grant stays of orders made under section 124 of the *Environmental Planning and Assessment Act 1979* (NSW).

The legal issues before the Court of Appeal included whether the primary judge had provided adequate reasons for making the orders and for granting stays of those orders. The Court was also required to determine whether, based on the reasons apparent, the exercise of discretion by the primary judge was erroneous, and whether further evidence should have been received.

The Court of Appeal dismissed the appeal, finding that the primary judge had adequately explained the reasons for the orders and the stays granted. The Court concluded that the exercise of discretion was not erroneous and that no further evidence was required. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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