Canterbury-Bankstown Council v Sydney Tools Pty Ltd

[2019] NSWLEC 103

Land and Environment Court

New South Wales

Medium Neutral Citation:	Canterbury-Bankstown Council v Sydney Tools Pty Ltd [2019] NSWLEC 103
Hearing dates:	11, 12, 13, 18 and 21 February 2019; written submissions 21 February to 4 April, 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	See par [186] herein
Catchwords:	CIVIL ENFORCEMENT: Two premises used for warehousing and distribution – alleged breaches of conditions of historic development consents – construction of conditions of consent – concessions and admissions made by Respondents – rectification of past breaches – declaratory and injunctive relief declined, through lack of utility – Respondents ordered to pay Council’s costs of proceedings.
Legislation Cited:	Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) [2006] QSC 132 Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 Bardsley-Smith v Penrith City Council (No 2) [2015] NSWLEC 94 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395 Burwood Council v Dixon [2002] NSWLEC 109 Caltex Australia Petroleum Pty Ltd v Manly Council (No 2) [2007] NSWLEC 350 Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152 Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83 Conomos v Chryssochoides (1997) 97 LGERA 113 Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596 Council of the City of Sydney v Mae [2009] NSWLEC 84 DEXUS Funds Management Ltd v Blacktown City Council (No 2) [2011] NSWLEC 247 Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153 Foodbarn Pty Limited v Solicitor-General (NSW) (1975) 32 LGRA 157 Gill v Donald Humberstone & Co Ltd (1963) 1 WLR 929 Great Lakes Council v Lani (2007) 158 LGERA 1 Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 House Of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440; [2000] NSWCA 44 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) (2012) 190 LGERA 119; [2012] NSWLEC 43 Kempsey Shire Council v Thrush & Anor [2011] NSWLEC 93 Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227 Latoudis v Casey (1990) 36 NSWLR 77; 170 CLR 534; [1990] HCA 59 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252; [2012] NSWLEC 17 Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770 Sydney Tools Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1625 Sydney Tools Pty Ltd v Canterbury-Bankstown Council (No 2) [2019] NSWLEC 6 Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 1513 Urquhart v Hayman (No 2) [2012] NSWLEC 269 Waverley Council v Hairis Architects (2002) 123 LGERA 100 Westfield Management Limited v. Perpetual Trustee Company Limited & Anor. [2006] NSWCA 245 Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508
Category:	Principal judgment
Parties:	Canterbury-Bankstown Council (Applicant) Sydney Tools Pty Ltd (First Respondent) Eva Investments Australia Pty Ltd (Second Respondent)
Representation:	Counsel: Ms H Irish, and Mr J Farrell, barristers, and Mr J Fan, solicitor (Applicant) Mr A Galasso, SC (First and Second Respondents)   Solicitors: Pikes & Verekers Lawyers (Applicant) Mills Oakley (First and Second Respondents)
File Number(s):	2017/3628502017/362851

Judgment

Introduction

1. These Class 4 civil enforcement proceedings were brought by the Applicant Council (“Council”) on 30 November 2017, and heard together.

2. They seek to remedy or restrain alleged breaches of the Environmental Planning and Assessment Act 1979 (“EPA Act”), involving warehouse-type premises located in Riverwood (or Roselands).

3. The subject premises are located at a T-intersection corner, where Eva Street meets, but does not cross, Bonds Road. Eva Street appears to be the more local/minor of the two roads, having a 3-tonne load limit, and not being regarded as very busy (see Tpp230-233).

4. The premises have three components, under one roof, customarily referred to as Units “A”, “B”, and “C”. Unit “A” is on Lot 10 in DP633725, and has a frontage at 30-44 Eva Street, at the Eastern end of the complex, and Units “B” and “C”, which are generally considered together, are on Lot 11, and front 102 Bonds Road, with “C” at the Western end, on the corner.

5. They are also located at the north-eastern extremity of a light industrial zone, where it adjoins a low-density residential zone, and all three are zoned “IN2 – Light Industrial”, under Canterbury Local Environmental Plan 2012 (“the LEP”, as to which see [29] below).

6. Matter no 2017/362851 (“851”) concerns Unit A (“the Eva St premises”), and matter no 2017/362850 (“850”) concerns Units B and C (“the Bonds Rd premises”).

7. The First Respondent, Sydney Tools Pty Ltd (“ST”), now occupies and trades from all three units, and the land on which they sit has been owned by the Second Respondent, Eva Investments Pty Ltd (“Eva”), since 18 December 2013. ST’s occupation is pursuant to registered leases, dated 18 December 2013 (Eva St), and 1 July 2015 (Bonds Rd).

8. The two Respondent companies “are not related corporations but have common ownership and control” (see agreed Court Book (“CB”) fol 70, par 17). ST has taken the lead in defending these proceedings.

9. Apart from the CB, there is also before the Court a two-volume Evidence Book (“EB”), as well as additional affidavits and exhibits, notably “Exhibit GK1”, produced by Council’s Environmental Compliance Officer, George Kalivitis, in relation to one of his affidavits.

10. The ST business is described in the affidavit of its CEO, Elvis Bey, in proceedings 850, (at par 14), in these terms:

The Sydney Tools business specialises in the sale of high quality tools and associated products. Sydney Tools operates:

a.   a network of 15 stores across NSW and 2 in the ACT; and

b.   an online store which takes orders over the internet and either delivers products to customers by post or provides them to a store location for pick up.

11. The subject premises are ST’s “warehouse and distribution hub” (Tp132, LL1-2), and ST operates in a very competitive market (Tp126, LL34-44).

12. The materials before me indicate that the three units have internal GFAs of:

“A”   5,182 sqm

“B”   2,544.73 sqm

“C”   3,390.92 sqm;

and that ST has been operating in/from the respective units since the following dates:

“A”   December 2013, or early 2014

“B”   April 2018

“C”   early 2014, but pursuant to a lease since only 1 July 2015.

13. The controversial “trade shop” in Unit C occupies only “roughly 500 or 600sqm” (Tp205, LL35-36).

14. Prior to their occupation by ST, the units had been occupied at times by “Campbells Cash & Carry”, and businesses involved in pharmaceuticals and the like, furniture assembly, athletic clothing, and National (or Australian) Geographic videos etc..

Approvals

15. Central to the Respondents' case is that a number of development consents (“DC”), issued in respect of each component of the site over a number of years, remain in force, despite changes in the identity of the occupiers, and in the nature of their use of the premises.

16. During his oral submissions on the Respondents’ behalf, Mr A Galasso SC provided to the Court, in respect of each site, a “Consent Genealogy”, to which counsel for the Council, Ms H Irish, took no objection, until very late written submissions. Those documents helpfully indicated where each approval document could be located in the EB, or in Mr Kalivitis’s material (Tp349, L40, and p357, L35).

17. I shall return to the relevant consents in a later specific section of this judgment (from [47] below).

Complaints

18. The ST operation of the premises as a whole has been the subject of complaint by both the Council and some nearby residents of Eva Street, but the Court notes that complaints to Council commenced in September 2015, regarding Units A and C, before ST occupied the whole of the site (App subs 36).

19. The principal complaints have concerned traffic in Eva Street, and noise impacts emanating from the site itself (see Kalivitis 25 October 2018 par 24).

20. In the course of his oral submissions, Mr Galasso argued (Tp365, LL45-50) that the complaints to Council are “properly considered historical complaints”, and that the evidence of the neighbouring residents shows that such noise impacts have abated throughout 2018.

21. However, one complaining neighbour, who subsequently also gave evidence before me, Robyn Oxford, obtained a noise abatement order against ST from the Local Court on 14 August 2018. ST immediately appealed to this Court, and Pepper J stayed the order, on terms, on 30 August 2018: Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134. That appeal then went to a s 34 conference, on 27 September 2018, at which the parties agreed that the order be revoked: Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 1513 (per Gray C).

Current Class 1 proceedings

22. While this judgment has been reserved, Class 1 proceedings brought by ST against Council, on 7 December 2017 (matter 2017/371724), in respect of Council’s refusal, on 8 June 2017, of development application (“DA”), no DA/163/2017, dated 10 May 2017 – in which ST seeks consent for the use of the Bonds Rd premises “as a tools hardware and building supplies store and a warehouse and distribution centre” – were heard by Chilcott C, and his decision remains reserved.

23. The Court granted to ST, as the Applicant in those Class 1 proceedings, leave to amend the subject DA, so as to embrace Unit B, as well as C, after having deleted from the proposal a repair workshop: see Registrar Froh’s decision of 4 February 2019, Sydney Tools Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1625, affirmed by me in Sydney Tools Pty Ltd v Canterbury-Bankstown Council (No 2) [2019] NSWLEC 6.

24. My only knowledge of what has been considered in the hearing of the Class 1 matter comes from the evidence before me when I dealt with the amendment application, on 10 December 2018, and from what was put before me at the hearing of this Class 4 matter and subsequently.

Admissions and Concessions

25. The Respondents made certain admissions and concessions, notably that ST had indeed carried out certain works, without DC, in Unit C (namely building works in the basement, construction of an inter-tenancy wall, and removal of some toilets and office partitions).

26. However, while the Respondents were initially prepared to concede that certain declarations and orders should be made, they strongly defended several aspects of the proceedings, sought to invoke the exercise of the Court’s discretion on the question of relief, and eventually submitted that no declarations or orders be made.

27. For its part, Council argued (subs pars 25, 68 and 71) that the declarations and orders to which the Respondents signified their agreement “do not go far enough”, and, when the Respondents submitted that none should be made, Council persisted with its quest for relief.

28. In the next section of this judgment (from [37] below) I will set out the relief sought, both originally and finally, by Council, and record the positions taken by the Respondents over time.

Common Ground

29. The Applicant’s Summary of Argument before me (CB tab 3) noted (at par 18), in respect of matter 850:

It is common ground that:

a.   the Bond Road premises—

i.   is within the local government area of Canterbury-Bankstown,

ii.   comprises land to which [the LEP] applies,

iii.   is zoned IN2 Light Industrial, in which use for warehouse or distribution centre is permissible with consent, and

iv.   use for each light industry, and hardware and building supplies, is also permissible with consent;

b.   “warehouse or distribution centre” in [the LEP] “means a building or place used mainly or exclusively for storing or handling items (whether goods or material) pending their sale, but from which no retail sales are made, and includes local distribution premises”:

c.   “light industry” in [the LEP] “means a building or place used to carry out an industrial activity that does not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, girt or oil, or otherwise, and includes any of the following:

(a)   high technology industry,

(b)   home industry,

(c)   artisan food and drink industry”;

d.   “industrial activity” (referred to in the definition of ”light industry”) in [the LEP] “means industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity”;

e.   “hardware and building supplies” in [the LEP] “means a building or place the principal purpose of which is the sale or hire of goods or materials, such as household fixtures, timber, tools, paint, wallpaper, plumbing supplies and the like, that are used in the construction and maintenance of buildings and adjacent outdoor areas”.

30. In respect of “common ground” in matter 851, the Applicant notes (at par 21, CB fol 48) that pars 18.a.i-iii, and 18.b, set out immediately above, apply also to the Eva St premises.

31. The parties are not agreed as to what “real issues” remain to be resolved, now that the Respondents’ concessions have been made, and some parts of the relief sought by Council accepted, narrowing the “contest”.

Undertaking

32. These Class 4 proceedings came before the Chief Judge on 18 December 2018, on the question of interlocutory relief, and the Respondents gave an undertaking about certain aspects of ST’s operation on the site. The undertaking expired at the commencement of the hearing before me, and was not extended.

The Hearing and Since

33. The Court received voluminous evidence from company personnel, Council officers, nearby residents, and experts in the fields of town planning, acoustic engineering, and traffic management.

34. Most witnesses also gave oral evidence, but Council’s planning witness (its building certifier Mr Khalil Georges) was not available to do so.

35. The hearing, set down for three days, had not been completed at the end of a fifth day, and, since judgment was reserved on 21 February 2019, the Court has received many supplementary written submissions, and several draft Short Minutes of Order on the question of relief.

36. The timetable for submission of those documents required the completion of that process by 11 March 2019, but it was not completed until 4 April 2019.

Relief Sought

37. By its summonses dated 30 November 2017, the Council sought the following relief:

Matter 850

1.   A declaration that the first respondent is in breach of section 76A(1)(a) of the [EPA Act], by using the land known as Unit C at 102 Bonds Road, Riverwood (being Lot 11 in DP 633725, folio identifier 11/633725, hereafter referred to as "the subject premises") as "hardware and building supplies" store and "light industry" (by the repair of goods and materials), being development permissible with consent pursuant to the [LEP], but which consent has not been obtained;

2.   A declaration that the first respondent is in breach of section 76A(1)(a) of the [EPA Act], by carrying out building works for the purposes of the hardware and building supplies and light industry uses, for which [DC] is required, but which none was obtained;

3.   A declaration that the first respondent is in breach of section 76A(1)(b) of the [EPA Act], by carrying out development on the subject premises contrary to [DC] DA-9595/1998 granted on 4 August 1998 being the relevant approval for the use of premises as a warehouse and distribution premises;

4.   An order that the first and second respondents, and their employees, servants or agents, be restrained from using, suffering or permitting to be used the subject premises as hardware and building supplies and as light industry, without first obtaining [DC];

5.   An order that the first and second respondents rebuild and/or reinstate the premises in accordance with [DC] DA-701/2006 granted on 11 January 2006, being the relevant approval for the internal fitout and alterations for the premises as a warehouse and distribution premises, within 60 days of the date of this order;

6.   An order that the first respondent be restrained from carrying out warehouse and distribution uses on the subject premises contrary to [DC] DA-9595/1998;

7.   An order that the second respondent be restrained from causing, or permitting to be caused, the carrying out of warehouse and distribution uses on the subject premises contrary to [DC] DA-9595/1998.

8.   An order that the first and second respondents pay the applicant's costs of these proceedings; and

9.   Such further or other orders as the Court sees fit.

Matter 851

1.   A declaration that the first respondent is in breach of section 76A(1)(b) of the [EPA Act], by carrying out development on the land known as 30-44 Eva Street, Riverwood (being Lot 50 in DP 633725, folio identifier 10/633725, hereafter referred to as "the subject premises") contrary to [DC] DA-90/1998 (sometimes referred to as DA-90/98) granted on 22 September 1998 and as subsequently modified by DA-90/1998/A on 11 July 2010.

2.   An order that the first respondent be restrained from carrying out warehouse and distribution uses on the subject premises contrary to [DC] DA-90/1998 as modified.

3.   An order that the second respondent be restrained from causing, or permitting to be caused, the carrying out of warehouse and distribution uses on the subject premises contrary to [DC] DA-90/1998 as modified.

4.   An order that the first and second respondents pay the applicant's costs of these proceedings; and

5.   Such further or other orders as the Court sees fit.

38. The Respondents filed Points of Defence (“POD”) in each matter, on 25 September 2018.

39. In matter 850, the POD said (in par 33, at CB fol 35):

33.   In answer to paragraph 39, the respondents accept that the following relief sought in the Applicant's Summons should be made:

(a)   Declaration that the First Respondent has carried out building works without [DC] in the basement of Unit C

(b)   Declaration that the First Respondent has carried out the following building works without [DC] in Unit C:

(i)   installation of an intertenancy wall at the front of Unit C;

(ii)   removal of office partitions at the front of Unit C; and

(iii)   removal of toilets within Unit C.

(c)   Declaration that these works were undertaken in breach of the [EPA Act].

(d)   Declaration that carrying out of works identified in 1 constituted development contrary to [DC] 9595/98.

(e)   The Respondents seek to avoid order 5 of the Applicant's Summons and relies on the Court's discretion in respect of the works undertaken contrary to s76A(1) of the [EPA Act]..

(f)   Order that the First Respondents pay a portion of the applicant's costs in the proceedings in an amount to be agreed or assessed.

(g)   Order that premises are only to operate in accordance with approved hours set out in [DC] 9595/98.

and in matter 851, they said (in par 18, at CB fol 29-30):

18.   The Respondents accept that the following relief should be granted:

(a)   Declaration that the First Respondent has carried out development contrary to [DC] DA-90/1998/A in relation to the line marking for the provision of car spaces and temporary removal of part of the acoustic wall on the western boundary.

(b)   Order that the First and Second Respondents pay a portion of the Applicant's costs in the proceedings in an amount to be agreed or assessed.

(c)   Order that premises are only to operate in accordance with approved hours in the [DC] 90/98 and terms of [Complying Development Certificate (“CDC”)] D8K202A1 issued 4 September 2018.

40. The Council’s proposed orders for final relief, submitted in each matter on 1 March 2019, differed from the relief sought in the summonses, and, for completeness, I set out those draft orders here:

Matter 850

1.   A declaration that the First Respondent, in breach of section 4.2(1)(a) and (b) (formerly section 76A(1)(a) and (b)) of the [EPA Act], carried out development at Units B and C on land known as 102 Bonds Road, Riverwood without consent and otherwise than in accordance with [DC] DA-9595/1998 granted on 4 August 1998 (and [DC] DA-701/2006 granted on 11 January 2006 for internal fitout and alterations) by carrying out:

(a)   demolition of ground floor sanitary facilities in Unit B,

(b)   demolition of ground floor walls forming reception and office in Unit B,

(c)   demolition of first floor walls forming offices and production rooms in Unit B,

(d)   building works in the basement of Unit C,

(e)   removal of ground floor office partitions at the front of Unit C,

(f)   installation of an inter-tenancy wall to form the retail store at the front of Unit C,

(g)   removal of sanitary facilities in Unit C,

(h)   removal of an acoustic barrier between Unit B and Unit A on land known as 30-44 Eva Street, Roselands,

(i)   removal of internal partition walls between Unit B and Unit A on land known as 30-44 Eva Street, Roselands.

2.   A declaration that the First Respondent, in breach of section 4.2(1)(a) (formerly section 76A(1)(a)) of the [EPA Act], carried out development at Unit C on land known as 102 Bonds Road, Riverwood by using part of Unit C for “light industry” by the repair of goods and materials without consent.

3.   A declaration that the First Respondent is in breach of section 4.2(1)(a) (formerly section 76A(1)(a)) of the [EPA Act] by carrying out development at Unit C on land known as 102 Bonds Road, Riverwood by using part of Unit C for a “hardware and building supplies” store without consent.

4.   A declaration that the First Respondent is in breach of section 4.2(1)(b) (formerly section 76A(1)(a)) of the [EPA Act] by carrying out development at Units B and C on land known as 102 Bonds Road, Riverwood otherwise than in accordance with [DC] DA-9595/1998 granted on 4 August 1998.

5.   An order that the First and Second Respondents, their employees, servants or agents be restrained from using, suffering or permitting to be used, any part of Units B and C for:

(a)   “light industry”, or

(b)   a “hardware and building supplies” store

without first obtaining [DC].

6.   An order that, within 60 days of such order, the First Respondent demolish as necessary and reinstate Units B and C on land known as 102 Bonds Road, Riverwood in accordance with [DC] DA-701/2006 granted on 11 January 2006 for internal fitout and alterations.

7.   An order that the First and Second Respondents be restrained from carrying out or causing or permitting the carrying out of warehousing and distribution at Units B and C on land known as 102 Bonds Road, Riverwood otherwise than in accordance with:

(a)   all existing conditions of [DC] DA-9595/1998 granted on 4 August 1998 relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping, including but not limited to:

(i)   “Delivery vehicles…to 5 tonne as per existing use 5 trucks per day”,

(ii)   entry and exit in accordance with the approved plans [at Tab 4 to Exhibit ‘GK1’ to Affidavit Kalivitis 25 October 2018],

(iii)   all activity including the vehicular movement and traffic generation of delivery vehicles being conducted within the hours of operation namely, between 7.30 a.m. and 5.30 p.m. Mondays to Fridays and between 7.30 a.m. and 1.00 p.m. Saturdays with no work being carried out on Sundays and Public Holidays,

(iv)   all work including loading/unloading being carried out inside the building and not in adjacent yards or carking (sic) areas; and

(b)   the conditions of [CDC] B8K203A1, issued on 4 September 2018.

8.   An order that the First and Second Respondents pay the Applicant’s costs.

Matter 851

1.   A declaration that the First Respondent, in breach of section 4.2(1)(b) (formerly section 76A(1)(b)) of the [EPA Act], carried out development at Unit A on land known as 30-44 Eva Street, Roselands otherwise than in accordance with [DC] DA-90/1998 granted on 22 September 1998 (as modified by DA-90/1998/A in February 2010), including but not limited to:

(a)   not providing line marking for 60 off-street car parking spaces,

(b)   carrying out removal of an acoustic barrier between Unit A and Unit B on land known as 120 Bonds Road, Riverwood.

2.   An order that the First and Second Respondents be restrained from carrying out or causing or permitting the carrying out of warehousing and distribution at Unit A on land known as 30-44 Eva Street, Roselands (the property) otherwise than in accordance with:

(a)   all existing conditions of [DC] DA-90/1998 granted on 22 September 1998 (as modified by DA-90/1998/A in February 2010) relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping, including but not limited to:

(i)   operation of the development strictly in accordance with [Environmental Management Plan (“EMP”)] dated September 2009 prepared by [Clifford Hallam Healthcare, or “CH2”],

(ii)   all activity including the vehicular movement and traffic generation of delivery vehicles being conducted within the hours of operation namely, 8.00a.m. to 5.00p.m. Monday to Friday,

(iii)   the receiving of goods and the majority of vehicle activity on site being restricted to 8.00a.m. to 4.00p.m.,

(iv)   entry and exit in accordance with the approved plans [at Evidence Book 2.34] and Appendix 9 to [EMP] dated September 2009 prepared by CH2,

(v)   all loading/unloading taking place wholly within the property; and

(b)   the conditions of [CDC] B8K202A1, issued on 4 September 2018.

3.   An order that the First and Second Respondents pay the Applicant’s costs.

41. In written submissions filed in each matter, on 13 March 2019, in respect of those orders proposed by the Council, the Respondents submitted that no declarations should be made in either matter, and that the only order that should be made in either case is a partial costs order, viz:

850

An order that the First and Second Respondents pay a portion of the Applicant’s costs in regards to the unauthorised works admitted to in the proceedings by the First and Second Respondents.

851

An order that the First and Second Respondents pay a portion of the Applicant’s costs in relation to unauthorised works carried out at the premises being:

(a)   The provision of 60 line marked car spaces; and

(b)   Removal of the acoustic barrier between Unit A and B.

42. The Court then received, on 20 March 2019, apparently from Council or its solicitors, a different version of proposed orders to be made in 851 (only):

1.   A declaration that the First Respondent, in breach of section 4.2(1)(b) (formerly section 76A(1)(b)) of the [EPA Act], carried out development at Unit A on land known as 30-44 Eva Street, Roselands otherwise than in accordance with [DC] DA-90/1998 granted on 22 September 1998 (as modified by DA-90/1998/A in February 2010), including but not limited to:

(a)   not providing line marking for 60 off-street car parking spaces,

(b)   carrying out removal of an acoustic barrier between Unit A and Unit B on land known as 120 Bonds Road, Riverwood.

2.   An order that the First and Second Respondents be restrained from carrying out or causing or permitting the carrying out of warehousing and distribution at Unit A on land known as 30-44 Eva Street, Roselands (the property) otherwise than in accordance with:

(a)   all existing conditions of [DC] DA-90/1998 granted on 22 September 1998 (as modified by DA-90/1998/A in February 2010) relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping, including but not limited to:

(i)   (pending compliance with order 3 below) operation of the development strictly in accordance with [EMP] dated September 2009 prepared by CH2,

(ii)   all activity including the vehicular movement and traffic generation of delivery vehicles being conducted within the hours of operation namely, 8.00a.m. to 5.00p.m. Monday to Friday,

(iii)   the receiving of goods and the majority of vehicle activity on site being restricted to 8.00a.m. to 4.00p.m.,

(iv)   entry and exit in accordance with the approved plan [at page 89 of Tab 9 to Exhibit ‘GK1’ to Affidavit Kalivitis 25 October 2018] and Appendix 9 to [EMP] dated September 2009 prepared by CH2,

(v)   all loading/unloading taking place wholly within the property (in relation to this requirement, a plan showing Loading Zones A1, A2 issued with [CDC] D8K202A1 on 4 September 2018 does not authorise contravention of this requirement); and

(b)   Condition 22 of [CDC] D8K202A1, issued on 4 September 2018.

3.   An order that, within 60 days of such order, the First Respondent comply with Condition 25(a) and (b) of [DC] DA-90/1998 granted on 22 September 1998 (as modified by DA-90/1998/A in February 2010) (the Consent) by:

(a)   modifying [EMP] dated September 2009 prepared by CH2 to the effect required by Condition 25(a) and so as to comply with Condition 6 of the Consent namely:

All activity being conducted so that it causes no interference to the existing and future amenity of the adjoining occupations and the neighbourhood in general by the emission of noise, smoke, dust, fumes, grit, vibration, smell, vapour, steam, soot, ash, waste water, waste products, oil, electrical interference or otherwise,

(b)   lodging such modified [EMP] with the Applicant for approval, and

(c)   from the date of the Applicant’s approval (and in lieu of order 2(a)(i) above) operate the development strictly in accordance with the modified [EMP] (including any accompanying plans and elevations) as approved by the Applicant.

4.   An order that the First and Second Respondents pay the Applicant’s costs.

43. The Respondents then responded, on 2 April 2019, opposing all orders sought by Council, save as to some portion of its costs.

44. Then, on 4 April 2019, the Court received further extensive written submissions from the Applicant Council, arguing why declarations and injunctive relief ought be granted in the public interest, and suggesting some amendments to its draft orders.

The “Codes SEPP”

45. The following provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“Codes SEPP”), which applies to this land (cl 1.4), are relevant to the present proceedings:

1.15   What development is exempt development?

(1)   Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy.

…

1.17   What development is complying development?

(1)   Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy.

…

2.20A   Specified development

A change of use from a current use specified in a category in Column 1 of the Table to this clause to a use specified in the corresponding category in Column 2 of the Table to this clause is development specified for this code.

Table
Column 1 Current use	Column 2 New use
...	...
Category 2	Category 2
...	...
hardware and building supplies	hardware and building supplies
...	...
Category 3	Category 3
...	...
warehouse or distribution centre (other than local distribution premises)	warehouse or distribution centre (other than local distribution premises)
...	...

2.20B   Development standards

The standards specified for that development are that:

(a)   the current use must be a lawful use, and

(b)   the current use must not be an existing use within the meaning of section 4.65 of the Act, and

(c)   the new use must be permissible with consent under an environmental planning instrument applying to the land on which the development is carried out, and

...

(g)   the new use must not involve building alterations, other than alterations that are exempt development under this Policy, and

...

(i)   the new use must not cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping, and

(j)   if there is no such existing condition applying to the premises relating to the hours of operation, the premises must only operate between 7.00 am and 7.00 pm on any day.

...

Subdivision 1 Building alterations (internal)

5.1   Specified complying development

An internal alteration to a building that is used, or is the subject of a development consent for use, for any purpose (other than for the purpose of residential accommodation, artisan food and drink industry, heavy industry, local distribution premises, sex services premises or restricted premises) is development specified for this code.

5.2   Development standards

(1)   The standards specified for that development are as follows:

(a)   the current use of the premises must be a lawful use,

(b)   the current use of the premises must not be an existing use within the meaning of section 4.65 of the Act,

...

(h)   if the alteration involves a loading dock, the alteration must not:

(i)   reduce the number or capacity of the trucks accommodated, or

(ii)   reduce the area for goods handling, or

(iii)   reduce the area for waste handling (including any recycling area), or

(iv)   reduce the manoeuvring area of the loading dock or access driveway,

...

Subdivision 2 Change of use of premises

5.3   Specified complying development

(1) A change of use from a current use specified in a category in Column 1 of the Table to this clause to a use specified in the corresponding category in Column 2 of that Table is development specified for this code.

Table
Column 1 Current use	Column 2 New use
...	...
Category 2	Category 2
...	...
hardware and building supplies	hardware and building supplies
...	...
warehouse or distribution centre (other than local distribution premises)	warehouse or distribution centre (other than local distribution premises)
...	...

5.4   Development standards

(1)   The standards specified for that development are as follows:

(a)   the current use must be a lawful use,

(b)   the current use must not be an existing use within the meaning of section 4.65 of the Act,

...

(g)   the new use must not cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, car parking, loading, vehicular movement, traffic generation, waste management or landscaping,

...

46. I accept the Council’s submission (par 65) that a CDC does not “overcome”, or cure any contravention of, a condition of a subsisting DC, but I also accept the Respondents’ submission (Tpp355-356) that changing the nature of goods carried on site, from pharmaceuticals to tools, may have qualified as “exempt”, as well as “complying”, development.

The Relevant Consents

47. Mr Kalivitis deposed, on 25 October 2018 (par 23, EB Vol 1 fols 28-29):

My search of Council's records show the following [DCs] applying to the two properties as set out below.

(a)   By consent orders made by the Land and Environment Court in proceedings 1005 of 1983, [DC] was granted for the erection of two factory buildings (Units B and C) on 102 Bonds Road. The consent also permitted the use of Unit C for the manufacturing and warehousing pharmaceuticals, cosmetic products and associated offices.

(b)   [DC] 3047/87 was granted on 20 March 1987 to permit the use of Unit B for the storage, distribution and assembly of furniture.

(c)   [DC] 6932/93 was granted on 15 November 1993 to use Unit C for the warehousing and distribution of video cassettes.

(d)   [DC] 7049/93 granted on 7 January 1994 permitted the use of Unit B for the warehousing and distribution of pharmaceutical products.

(e)   [DC] 9595/98 granted on 4 August 1998 approved the use of Units B and C for the warehousing and distribution of videos and films.

(f)   [DC] 90/1998 was granted on 22 September 1998 for the use of the building at Unit A 30-44 Eva Street for the warehousing and distribution of pharmaceutical products.

(g)   [DC] 666/2006 was granted on 23 November 2006 to demolish internal partitions in Unit C.

(h)   [DC] 701/2006 was granted on 11 January 2007 for alterations and additions to the building comprising Units B and C.

(i)   [DC] 90/98 was modified on 11 February 2010 to extend the hours of the warehouse operations.

48. The Respondents contend (subs 5 February 2019, in 851, at par 22) that the Eva Street Premises have the benefit of the following consents:

a.   LEC approval 10005 and 10625 of 1983 (as modified) - DA for construction of warehouse building and use as a warehouse facility and general household merchandise wholesale (Cash and Carry);

b.   DA 90/1998 granted on 22 September 1998 for the use of the premises (sic) warehousing and distribution the ([DC]); and

c.   DA 90/1998/A approved on 18 February 2010 to modify the [DC] (Modification Approval).

and (subs 4 February 2019, in 850, at par 21) that the Bonds Rd premises have the benefit of the following consents:

a.   LEC 1005/1983 – Erection of two factory buildings (Units B and C) and use of Unit C for manufacturing and warehousing of pharmaceuticals;

b.   DA 3047/87 – Use of Unit B for storage, distribution and assembly of furniture;

c.   DA6932/93 – Use of Unit C for the warehousing and distribution of video cassettes;

d.   DA 7049/93 – Use of Unit B for the warehousing and distribution of pharmaceutical products;

e.   DA9595/1998 granted on 4 August 1998 ([DC]);

f.   DA 666/2006 – Demolition of internal partitions in Unit C; and

g.   DA-70/2006 granted on (Consent of Alterations and Additions).

49. The Respondents also rely on two CDC, which were issued to ST, in respect of each of the sites, on 4 September 2018. They are identified as B8K202A1, in respect of Unit A (EB tab 42), and B8K203A1, in respect of Units B and C (EB tab 75).

50. CDC B8K202A1 is described as being for the "Change of Use of Existing Pharmaceuticals Warehouse To A Warehouse & Distribution of Tools", while CDC B8K203A1 is described as being for the "Change of Use of Existing Films and Videos Warehouse to a Warehouse & Distribution of Tools".

51. The Council contends that the most relevant consent in relation to proceedings 850, (applying to the Bonds Road Premises), is “DA-9595 of 1998”, granted on 4 August 1998, for the use of the subject premises for the warehousing and distribution of videos and film and the installation of a fire door between the units (“DA-9595/98”)

52. In the DA for that consent, the applicant for consent was asked to nominate the “type, size and frequency of delivery vehicles using the site”, and answered with the words “delivery vehicles will be trucks to 5 tonne as per existing use”, adding the words “5 trucks per day”.

53. The consent nominated by Council as most relevant for the purposes of proceedings 851 (applying to the Eva Street Premises), is “DA-90/1998”, as subsequently modified, and now known as “DA-90/1998/A”.

49. Both of those consents were granted under the Canterbury Planning Scheme Ordinance 1970 (“PSO” – EB tab 22), which included the following definitions (at fols 528-529):

“Shop” means a building or placed (sic) used or intended for use for the purpose of selling, exposing or offering for sale by retail goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause or a building or place used or intended for use for a purpose elsewhere specifically defined in this clause or for a roadside stall.

“Warehouse” means a building or place used or intended for use for the storage of goods, merchandise or materials pending their sale and distribution to persons engaged in the retail trade.

55. The following exchange occurred between Mr Galasso and Mr Kalivitis (Tp111, LL27-43):

Q. You've appended various consents to your affidavit. Nowhere in any of the consents is there the requirement for a surrender of any previous consent with respect to a unit, correct?

A. Correct.

Q. And nowhere in anything you've read on the council file is there a condition that effects a surrender of the previous consent?

A. That's correct.

Q. So if I was to ask you to pick a unit, B or C or A, we've got three of them, it is the case, is it not, that for each unit there is more than one consent that has been granted with respect to that unit, firstly--

A. Yep.

Q. --and there is no later in time consent that is in terms purported to effect a surrender or what occurred beforehand?

A. That's correct, yep.

Key Issues in the Proceedings

56. In proceedings 850, the Council complains of breaches of conditions 1, 2, 3, 4, 5, 8, 11, 12 and 13 of DA-9595/98 (Tp1, LL44-45; Amended points of Claim at 31), which provide (Exhibit GK1 at fol 11-12):

1    The development being carried out substantially in accordance with plans received by Council on 17 June 1998 except where amended by the conditions of consent

2    The development being carried out and conducted in accordance with the application as submitted except where amended by the conditions of this consent.

3    The use being confined to the Unit B and Unit C part of the premises as shown on the plan submitted.

4    All activity being conducted so that it causes no interference to the existing and future amenity of the adjoining occupations and the neighbourhood in general by the emission of noise, smoke, dust, fumes, grit, vibration, smell, vapour, steam, soot, ash, waste water, waste products, oil, electrical interference or otherwise.

5   123 off-street car spaces being provided in accordance with the submitted plans. (56 spaces being for unit B and 67 spaces being for unit C).

…

8   The hours of operation being confined to between 7.30 a.m. and 5.30 p.m Mondays to Fridays and between 7.30 a.m. and 1.00 p.m. Saturdays with no work being carried out on Sundays and Public Holidays.

…

11    All work being carried out inside the building and not in adjacent yards or carparking areas.

12   All goods and materials being stored wholly within the building.

13   No goods being sold to the general public from the premises.

…

57. In proceedings 851, the Applicant complains of breaches of conditions 1, 2, 4, 6, 9, 25, 28 and 31 of DA-90/1998/A (Tp2, LL4-5, POC at CB fol 23-24), which are set out in the notices of determination for the original DA-90/1998, and/or DA-90/1998/A (Exhibit GK1 fols 35; 59-60):

1.   The development being carried out in accordance with the plans, specifications and details dated 27 July 1998 except where amended by the conditions specified in this Notice.

2.   The development being carried out and conducted in accordance with the application as submitted except where amended by the conditions of this consent.

…

4    All loading and unloading in relation to the use of the premises taking place wholly within the property.

...

6   All activity being conducted so that it causes no interference to the existing and future amenity of the adjoining occupations and the neighbourhood in general by the emission of noise, smoke, dust, fumes, grit, vibration, smell, vapour, steam, soot, ash, waste water, waste products, oil, electrical interference or otherwise.

…

9.   The hours of operation being confined to between 6:00am and 9.00pm Monday to Friday, with no work being carried out on weekends and Public Holidays. Within these hours the use is to also comply with the other operational conditions of the consent.

(a)   The extended hours of operation being for a limited period of 12 months only from the date of this approval, after which time the hours of operation for the business will revert to 8.00a.m. to 5.00 p.m. Monday to Friday, except with the further consent of Council.

…

25.    The development shall be operated strictly in accordance with the [EMP] dated September 2009 prepared by [Clifford Hallam Healthcare, or “CH2’], and the accompanying plans and elevations except where modified by conditions of this consent.

(a)    The [EMP] to be modified to include the following details (with the Construction Certificate application):

• Measures to reduce amenity impacts from vehicle headlights.

• Clarifying that the complaints phone number can be used after hours.

• The date of issue to be noted on the [EMP].

• Headings and paragraphs of the [EMP] to be itemised and numbered for ease of reference for all parties.

(b)    The development shall be operated strictly in accordance with the amended [EMP] as referred to above and accompanying plans and elevations except where modified by conditions of this consent.

…

28.    The acoustic barrier and associated gates shall be constructed in accordance with the design approved by the Director City Planning.

…

31.   No trucks are permitted to enter or leave the site between 7.30pm and 7.00am.

58. Condition 32 is also relevant to the acoustic evidence (EB fol 675):

Noise emission during the approved hours of operation shall not exceed the levels outlined in the table below:

Location	Day Time dB(A)		Evening dB(A)		Night Time dB(A)
	Amenity Criterion (Leq 7.00am-6.00pm)	Intrusiveness Criterion (Leq 15min)	Amenity Criterion (Leq 6.00pm-10.00pm)	Intrusiveness Criterion (Leq 15min)	Amenity Criterion (Leq 10:00pm-7.00am)	Intrusiveness Criterion (Leq 15min)	Sleep Arousal Criterion (L1 1 min)
Residential Receivers	55	53	45	51	40	49	59
Commercial Receivers	65	N/A	65	N/A	65	N/A	N/A

59. The EMP, referred to in condition 25 above, can be found behind tab 9 of Exhibit GK1.

60. A central complaint of the Council in proceedings 850 (Units B and C) is that Unit C is being used as a “hardware and building supplies store”, from which retail sales are made to the general public, in the absence of consent.

61. While the Respondents acknowledge that sales are made from Unit C, they deny such sales are made to the general public, and contend that ST’s practice of selling to “trade and ABN customers only” is contemplated by the conditions of consent.

62. They also submit (Tp367) that sales is only a minor part of their operations on site, and ancillary to their warehousing use.

63. The Council challenges ST’s insistence that it checks the bona fides of purchasers attending its sales outlet.

64. The Canterbury LEP dictionary defines “hardware and building supplies” as a type of “retail premises” ([29]e above):

… a building or place the principal purpose of which is the sale or hire of goods or materials, such as household fixtures, timber, tools, paint, wallpaper, plumbing supplies and the like, that are used in the construction and maintenance of buildings and adjacent outdoor areas.

65. The Council complains further that the basement of Unit C previously housed a tool repair workshop, a “light industry” use, also defined in the LEP ([29]c above), which is permissible with consent, but for which no consent was obtained.

66. ST admits that it caused the removal of toilets from Unit C. Consequently, the number of sanitary facilities on the site, and whether these were sufficient to meet the needs of the number of employees on site, was also in issue, and became the subject of competing town planning evidence (see below, from [88]).

67. The Respondents sought to rely on a discretion argument in relation to the relief sought by the Council for the carrying out of these unlawful works.

68. A key issue in proceedings 851 was the removal of an acoustic barrier located on the western boundary of the Eva Street Premises. This removal was admitted by the Respondents, who established that the wall had been reinstated.

69. The Council also complained that the 60-space outdoor car parking area required by condition 3 of DA-90/98/A was not provided, but the Respondents’ assert that this also has been reinstated (POD, CB fol 29 at [8]).

Evidence

Applicant’s Lay Evidence

70. Apart from the evidence given by its relevant senior officer, Mr Kalivitis, the Council relied on the affidavits, oral and video evidence of several residents of Eva Street, namely Ibrahim Assaad, Robyn Oxford, Sue Bayad, and Mustapha Bayad.

71. All deposed to the impacts on their amenity, caused over the years by truck movements and manoeuvres, as well as by loading, unloading and other site operations.

72. I accept the genuineness of their concerns, and, in the case of Mr Assaad, the worrying impact on his health (Exhibit C1).

73. However, under cross-examination, several of the residents conceded to the Court that the adverse impacts caused by site operations had lessened over time, especially during and since March 2018. For example, the following exchange occurred between Mr Galasso and Ms Oxford, concerning the operating times of Unit C (Tp98, LL23-28):

Q. Okay, and nothing on Sundays?

A. No.

Q. And nothing into the evening on Thursdays?

A. They don't shut at, they don't shut at 5.30. The gates don't actually shut until approximately 6 o'clock, 6.30, but, yes, it's been a lot better than it was.

74. Mr Kalivitis gave the following evidence in response to Mr Galasso (Tp117, LL14-23):

Q. When you say in paragraph 24 that you searched the records and say that since September 2015 council has received over 65 complaints and/or representations from Eva Street residences, are you able to tell his Honour whether the complaints have increased, stayed the same or reduced over the last 12 months or so?

A. I would be able to give you a number but I, I think they have decreased, to some extent, since the, especially since the undertakings have been issued.

Q. Yes, and they decreased before that as well, did they not?

A. To some extent.

Respondents’ Lay Evidence

75. The Respondents relied on the lay evidence of two senior executives of ST.

76. Matthew Newcombe has worked for ST since 2008, and has been its operations manager since 2016. He is based in Unit A 8am-5pm 4 days per week, and deposed to the operational procedures of the ST business across both sites, in the contexts of truck movements, delivery procedures, the receipt and distribution of stock to and from the sites, contractual relations with TOLL, policies and manuals pertaining to the operation of the ST business, and business hours of operation. He confirmed that many changes occurred in about August 2018 (Tpp252-253).

77. Elvis Bey is the CEO of ST, and a director of Eva. He deposed to matters including the history and occupation of the sites, the business operations of ST, operational procedures, the company’s online store (which is operated from Unit A), the delivery of stock and containers to the sites, and noise generated from the company’s operations.

78. Mr Bey also addressed the sale from Unit C of “goods”, namely tools, including those warehoused in Units B and C. He stated that most customers taking advantage of the trade store “actively identified their company, ABN or trade name”, and that, in circumstances where a customer revealed that it did not hold an ABN, or a trade qualification/licence, it is staff practice to “explain to the customer that the sale of goods from the premises is for trade customers only and not the general public”.

79. Mr Bey indicated the steps ST has taken to address the concerns of residents in Eva Street regarding the times containers are delivered, and he deposed to the company’s decision to restrict the delivery of containers to the site to three days a week. An e-mail was sent to ST’s freight provider, Toll, containing the following (Exhibit EB-1 in 850, at Tab 12):

…

Effective immediately, please be advised our new container delivery time frame as per below schedule

Monday 10am – 2pm

Tuesday 10am – 2pm

Thursday 10am – 2pm

Under no circumstances are containers be (sic) delivered or pick up (sic) outside of the time frame above, unless advised by management.

…

80. Mr Bey also deposed to other strategies the company was using to limit adverse impacts, such as placing recycled conveyor belts on the ground to reduce noise and vibration caused by the unloading of containers.

81. Mr Bey was closely cross-examined, at length, by Ms Irish on the various matters to which he deposed, especially the sales occurring from Unit C, and the process of screening customers to ensure that goods are sold only to trade or ABN customers (see Tpp183-185).

82. I found Mr Bey a frank and candid witness, who was not only seeking to assist the Court, but was genuinely doing the best he can (Tp151, L3; p163, LL32-46; and p181, L7), at least in more recent times, to adhere to the conditions imposed on relevant consents, and to resolve the difficulties which arise largely as a result of his company’s principal location being at a zonal interface with a residential area.

Expert Evidence

Traffic Expert Evidence

83. Both parties relied on expert traffic evidence – Mr Brett Maynard for the Council, and Mr Ken Hollyoak for the Respondents.

84. Both provided affidavits and “swept path” analyses (see Exhibits C3 and C4), and both were individually cross-examined.

85. Mr Maynard opined that 19 metre articulated vehicles accessing the site would cause difficulties for parked vehicles, and local traffic movements.

86. Mr Hollyoak opined that, “at a lower speed and by allowing trucks to turn their wheels when stopped, the trucks can more easily enter and exit the site”.

87. I found little conflict in their evidence.

Planning Evidence

88. Mr Ali Hammoud, a town planner and director of “Planzone”, was engaged by the Respondents to review the building works undertaken in Units B and C.

89. He noted, that in relation to Unit B, the following internal works were known to be undertaken without consent (par 6):

a.    Demolition of ground floor sanitary facilities (1 x disabled, 2 x male and 2 x female);

b.    Demolition of ground floor non-structural walls forming the reception and office;

c.    Demolition of first floor non-structural walls forming the offices and production rooms;

d.    Installation of moveable and non-permanent shelving fixtures for storage on ground floor level.

90. He opined that such works could have been covered by a CDC.

91. Mr Hammoud also addressed the alleged inadequacy or removal of sanitary facilities, and deposed that, in his view, the remaining facilities would be able to accommodate up to 40 male and 30 female employees in Unit B. Based on his knowledge of the employment levels in Unit B, he concluded that that number of facilities was sufficient for the number of people actually employed on the site.

92. In respect of Unit C, Mr Hammoud also referred to the following internal works known to be carried out without consent (par 9):

a.    Construction of internal non-structural partition walls in the basement car-parking level;

b.    Demolition of ground floor non-structural walls forming the reception and offices, male and female changing rooms and sanitary facilities;

c.    Construction of non-structural partition walls to form the retail store at the front of the premises;

d.    Installation of moveable and non-permanent shelving fixtures for storage on the ground floor level;

e.    Installation of moveable and non-permanent shelving fixtures for storage on the first floor level.

93. As with the unlawful works in Unit B, he again concluded that these works could have been covered by a CDC.

94. Council relied on Khalil Georges, its qualified building certifier, who deposed (par 5) that, in accordance with Part D1.13 of the Building Code of Australia (“BCA”) volume 1, the number of occupants accommodated by Units B and C would be 190 people, and he ultimately concluded that, “assuming the existence of the sanitary facilities as described by Mr Hammoud”, the premises are “deficient by one accessible sanitary facility at Unit C”.

95. Mr Georges was not available for cross-examination, but Mr Hammoud was questioned, and I found his evidence convincing.

Acoustic Evidence

96. The acoustic experts engaged were Mr Graham Atkins (for the Council), and Dr Renzo Tonin for the Respondents.

97. Dr Tonin’s concluded (fol 253) that the operations associated with the site complied with the relevant condition of consent. A later report likewise concluded that there was compliance with the relevant condition of the other relevant consent.

98. Graham Atkins responded to the reports of Dr Tonin, and made a number of comments regarding the noise level testing carried out by Renzo Tonin & Associates, in particular, relating to the noise testing methodology and criteria.

99. Tonin’s opinions were forthright, and were based on approximately four hours of inspections and testing, whereas Atkins undertook only a short, cursory inspection (Tpp294-311, cf. pp283-286).

100. I prefer, and accept, Dr Tonin’s evidence and opinions; apart from refuting any suggestion of breach, he made an arguable case of compliance (Mr Galasso at Tp364, LL28-29), and I note also the Council’s concession (subs par 51G) that:

... Having regard to the short compass of that evidence, and the contest between the experts, the Court could not be satisfied as to the interference by the emission of noise from operations at both premises.

The Parties’ Submissions

Applicant’s Submissions in Proceedings 850 (Bonds Road Premises / Units B and C)

101. The Council argues that the various unlawful works carried out within Unit C were carried out prior to the issuing of a CDC, in the absence of DC, and “no application was made to regularise those works” (Tp327, LL6-7).

102. The unauthorised “light industry” tool repair use in the basement of Unit C has ceased, but Council still presses for declaratory and injunctive relief.

103. The Council acknowledges that the issue of whether retail sales are permitted from Unit C is in dispute, but rejects the Respondent’s argument that sales can be lawfully made to trade or ABN customers, and contends that DA-9595/98 does not “expressly” contemplate the sale of goods from Unit C, as the Respondents maintain.

104. Ms Irish elaborated on the issue of retail sales from Unit C, in her oral submissions, by referring to the definition of “warehouse” in the PSO (see above, at [54]). She argued that Condition 13 “doesn’t merely restate the ordinance... It’s expressed as a prohibition to secure a different planning purpose, which is that there be no direct sales from the premises” (Tp341, LL27-32). Additionally, she argued, the definitions of “warehouse or distribution centre” in both the standard instrument and the Canterbury LEP “explicitly provide that there be no retail sales made” (Tp341, L40).

105. The bulk of the Council’s submissions in proceedings 850 (pars 41-66) concern the alleged breaches of the conditions of DC 9595/98, and Ms Irish contended in her oral submissions that, based on the evidence of Mr Bey and Mr Newcombe in relation to the business model of ST, its practices regarding the receipt and distribution of goods from the Riverwood Site “increases the pressure of traffic movements on the Riverwood hub” (Tp327, LL34-38).

106. She also submitted (Tp333, LL20-24):

While traffic movements and types of vehicles may have been anticipated in the historical factual matrix of the development of these warehouses, there is nothing that anticipates the degree to which semitrailers are employed to bring and take away goods to this site…

107. The Council drew attention to the following observations of Stein JA in Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508, providing guidance for construing DCs. His Honour commented, at [199]:

As Hope J observed in Auburn Municipal Council v Szabo (1971) 67 LGRA

427, in determining what development a consent authorises, one looks primarily at the approval and construes it. The reason for this is that a consent is issued in rem and it would be inconvenient, to say the least, if one had to have regard to a series of documents to know what the consent authority intended to approve. The consent may incorporate another document if it does so expressly (not here relevant) or by necessary implication. In Szabo, Hope J gave the example (at 434) of a council merely approving an application and no more. In such a case, the terms of the application would be incorporated by necessary implication…

108. Council also drew attention (subs par 60B) to Lloyd J’s remarks in Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227 at [12]:

It must be remembered, however, that a [DC] such as the present one, is not a document drafted by lawyers. It was drafted by town planners, to be read by town planners and non-legally trained people. The [DC] and the conditions must be read in a common sense way so as to give effect to the obvious intention of the draftsperson. Conditions of a [DC] are to be construed, not as if the words were the language of a statute, but from a practical viewpoint: see Gill v Donald Humberstone & Co Ltd (1963) 1 WLR 929; Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; and Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323.

109. I add here, for completeness, that, as a general rule, any ambiguity in consents or conditions is to be construed against the consent/enforcement authority.

Applicant’s Submissions in Proceedings 851 (Eva Street Premises / Unit A)

110. Council submitted that development has not been carried out at the Eva Street premises in accordance with the conditions of DA-90/1998/A, and rejects the Respondents’ submissions based on discretion.

111. Council noted (pars 94A and 95) that:

94A.   The Respondents have not adduced any evidence at the hearing of the expense or inconvenience which would follow the law’s enforcement.

95.   Current behaviour/operation, without more, is no security at all that it will continue.

Respondents’ Submissions in Proceedings 850 (Bond’s Road Premises / Units B and C)

112. The Respondents insist that there is a “practical and operational separation between the tenancies”.

113. They made various submissions in response to the Council’s contention that the sale of goods from Unit C is properly characterised as “hardware and building supplies”, a use for which no consent has been obtained.

114. They rely (at 25) on the authority of Foodbarn Pty Limited v Solicitor-General (NSW) (1975) 32 LGRA 157, to argue that this aspect of ST’s operation is “ancillary to the primary purpose of warehouse and distribution”.

115. Alternatively, they contend (26-30) that the sale of goods (now tools) falls squarely with the terms of the relevant DC, and that the terms of condition 13, “given their natural and ordinary meaning, clearly contemplate that some form of sales will occur from the site”.

116. In respect of unlawful works, the Respondents submit (38-39) that the basement of Unit C has been reinstated to reflect the approved plans, and that the unlawful internal works carried on within Unit C, as identified by Mr Hammoud, “are not of a nature or impact which would warrant their removal”. He suggests that such works could have been made the subject of a CDC, satisfying the requirements of the Codes SEPP (see subs 40-42).

117. The Respondents went on to submit (at 49-50):

49.    At the outset, it is apparent that the warehouse and distribution use of each unit are the subject of more than one consent, each of which has commenced and none of which have been surrendered.

50.    That notwithstanding, in respect of the current or future use of the Site, the nature of the goods warehoused can no longer be in contest in light of the grant of the CDC which expressly authorises the warehousing of tools. This is in addition to the alternative that such a ‘use change’ is also exempt development.

118. The Respondents then addressed each of the conditions of DA-98/9595 alleged to have been breached, disputing the Council’s contentions, and making submissions regarding noise, traffic and parking impacts and congestion within Eva Street.

119. Noting that the site, being zoned IN2-Light Industrial, sits at that zone’s interface with a low density residential zone, the Respondents submit (at 77-78) that the impacts complained of “are not of a nature or scale which render them beyond that which was contemplated by Condition 4”.

120. In particular, they submit (at 80) that the presence of trucks in Eva Street is a “necessary characteristic of the existence of warehouse and distribution facilities”, and that the relevant consent “expressly contemplates the movement of trucks to and from the site”, and they refer (at 84) to a number of practices which they have adopted to alleviate concerns surrounding amenity, such as restricting site deliveries, trying to limit noise, and restricting the use of forklifts between units.

121. They also rely (at 83) on the evidence of Dr Tonin to demonstrate compliance with noise conditions.

Respondents’ Submissions in Proceedings 851 (Eva Street Premises / Unit A)

122. The Respondents accept that works undertaken in relation to the acoustic wall on the western side of the premises were done in the absence of consent, but the wall has now been reinstated (EB tab 22).

123. They rely on the fact (at 28) that the “the warehouse and distribution use for Unit A is the subject of more than one consent, each of which has commenced and none of which have (sic) been surrendered”.

124. In his closing oral submissions, Mr Galasso submitted that (Tp347, LL1-7):

…there's no authority for the proposition that if you are engaged in activities over various parts of land, you need to have one single consent… we would submit that there's authority in this Court to the contrary, that is that you can have as it were a patchwork of consents that can serve together to authorise the undertaking of activities at any given place.

125. He noted that Talbot J had said in Waverley Council v Hairis Architects (2002) 123 LGERA 100 ("Hairis"), at [30]:

There is no statutory or other legal constraint upon the number of development applications that a person can make in respect of the same land… it follows that the Act contemplates there can be more than one valid and operating consent in existence at the one time…

(See also Caltex Australia Petroleum Pty Ltd v Manly Council (No 2) [2007] NSWLEC 350 (“Caltex”).)

126. In their written submissions (at 33), the Respondents said:

The terms of the [DC] and [EMP] incorporated, are broad and should not be read so as to constrain the use of the premises so narrowly such that only household goods or pharmaceutical goods can be stored on or within the site. To do so would unnecessarily and unreasonably constrain the operation of the consent and the purpose to which the land was put.

127. In addressing Condition 6 of DA-90/98, which governs issues of amenity, they said (at 49-52):

49.    Condition 6 must be read in the context of the [DC], [EMP], and importantly, the form of development which it approves.

…

51.    The existence of trucks within a street that services an industrial zone is not uncommon and is a necessary characteristic of the existence of warehouse and distribution facilities. The [DC] expressly contemplates the movement of trucks to and from the Site as set out on the approved plans.

52.    Further, the EMP expressly authorises and (sic) the use of semi trailers to service the Site and provides clear diagrams in respect of their manoeuvring within the Site and loading locations.

128. Mr Galasso commented (Tp348, LL33-34) that “it makes a nonsense to construe the no interference with amenity proscription as one that means necessarily no semitrailer movement”.

Council’s Submissions in Reply

129. In reply, the Council disputed the Respondents’ reliance on Hairis and Caltex, and the argument that there can be a “mosaic of development consents”.

130. The Council noted (reply subs par 1) that Hairis was concerned with an “existing use”, followed by DC to redevelop, and (at 4) that, in the present case, in contrast to the circumstances in Hairis, use “per earlier consents relating to Units B and C… has ceased, and use conflicting with resumption of those… uses has been physically undertaken on the 102 Bonds Road premises in the meantime”.

131. The Council then (at 6) referred to the Respondents’ reliance on the subsequent CDCs to apply retrospectively to each site, but emphasised that under the Codes SEPP, the Respondents “…must not cause the contravention of any existing condition of the most recent development consent that applies to the premises (i.e. the 1998 consents) ...”.

132. They continued (at 7 – footnotes omitted):

The Respondents cannot rely on the mosaic of [DCs] before the 1998 consents to avoid or excuse contravention. Further, the 1998 consents were the first to incorporate “the application as submitted” and, in the case of Unit A, to incorporate the EMP, whereas the Respondents distracted the Court with a variety of extrinsic documents in an attempt to make “a mosaic of [DCs]” case.

Competing Drafts of Final Orders to be made

133. As already noted (at [40] and [42], above), the very last versions of Council’s proposed final orders in each case differed in several aspects from, and contained greater detail than, those in their summonses, and Council presses for both declaratory and injunctive relief.

134. The Respondents submitted that the Court should decline to make any such orders, and should make only an order for payment of part of the Council’s costs in both proceedings, in the context of their admissions of unlawful works.

135. The Respondents say that declarations sought by the Council in both proceedings are “inappropriate and unnecessary”, and they rely, in this regard, on the decisions of Preston ChJ in Great Lakes Council v Lani (2007) 158 LGERA 1 (“Lani”), and Young JA in Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395.

136. In respect of proposed orders restraining the carrying out of development otherwise in accordance with either DA-90/1998/A or DA-9595/98, the Respondents submit that the operational effect of such orders would be to “inappropriately restrict” the ability of either ST or Eva to use the premises in accordance with other DCs which remain in force for either of the sites.

137. In the latest of her submissions documents (4 April 2019), Ms Irish pressed for the making of declaratory relief, even where the offending works had been reinstated, contending that “… the making of the declarations marks the disapproval of the Court of conduct that Parliament has proscribed…”.

138. She criticised the Respondents for effectively withdrawing their acceptance of declaratory relief in their POD, submitting (in pars 13 and 26):

… There was nothing in the Respondents’ Points of Defence, or the hearing of evidence, which claimed operational reliance on the “Consent Genealogy” now prayed in aid ….

Consideration

139. “Amenity” is an important consideration, but a multi-layered concept, about which Molesworth AJ wrote at some length in Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153 (“Dungog”), at [321]-[336].

140. His Honour noted (at [321] and [322]) (1) that “the assessment of any interference with the amenity of a place is not static”, and (2) that not all interference is “unacceptable”. Historic definitions of “amenity” focussed on “pleasantness or agreeableness of the neighbourhood”, and His Honour quoted the following from Sugerman J’s judgment in Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152, at [156]:

“The ‘amenity’ of a neighbourhood is, in the ordinary use of language, the quality which it has of being pleasant or agreeable. The Ordinance, in cl. 27, appears to use the expression in this sense, and to refer not to potential amenity (that is the capacity which a neighbourhood may have for being made pleasant or agreeable) but to an existing condition of affairs. Neighbourhoods differ greatly in this quality of amenity, and it may be, and probably is, the true view that the Ordinance uses the term ‘amenity’ in a relative rather than in an absolute sense, – that is to say not as referring to conformity to some generally accepted standard of amenity but as meaning the pleasantness or agreeableness of the neighbourhood as it in fact is, in pursuance of an intention that it should not become less pleasant or agreeable…It is possible that the preservation of an existing balance of uses may be a means of preserving the amenity of a neighbourhood, in this sense. That is a matter involving consideration of the character of the neighbourhood, the nature of the existing uses, the way in which they are balanced, and the sort of disturbance of existing balance which is in question”.

141. The residents of Eva Street, opposite the subject warehouse complex, have no doubt always experienced some degree of interference from the non-residential uses carried on there, and I accept that, in their view, that interference became more “unacceptable” as the industrial character of those uses intensified over time, and generated more and heavier traffic, and more noise and vibration.

142. Instructively, Molesworth AJ went on to note, in Dungog, at [323] (emphasis mine):

Accordingly, “amenity” is another qualitative term, requiring a consideration of the pre-existing states of pleasantness and agreeability. The Applicant Council submitted that one baseline from which one could assess interference with amenity was the approved level of truck movements which was effectively incorporated into the 1991 Consent. For instance, in the Introduction section (Exhibit R-1, p 150) of the 1990 EIS (which the Court has already determined is, by necessary implication, incorporated into the 1991 Consent so as to provide the requisite understanding of and context for the conditions of consent) there was a reference to “24 truck movements per day”, although there were some qualifying words referring to variability. It was argued that a high frequency of truck movements “undoubtedly interferes with amenity” – the approved level of truck movements setting the baseline.

143. Mr Galasso correctly submitted (Tp365, LL18-20) that “amenity needs to be determined as a function of the grants of consent”.

144. Both counsel referred to my decision in Conomos v Chryssochoides (1997) 97 LGERA 113, which makes the point that impact on amenity must be assessed not only objectively, but also in the context of its subjective effect on someone directly affected by it.

145. The Respondent in that case had constructed, unlawfully, some fairly normal sewerage pipes on the outside wall of his house, and argued that they were de minimis, but his neighbour complained that they remained a “prominent feature in the view” from his barbeque area, even after they had been painted.

146. I found in favour of the applicant neighbour, saying (at 120-121):

In this case I rely on the objects of the Acts in question and agree that they include conferring power on local councils over the general amenity of the neighbourhood and environment in their locality.

Although the pipes are not physically large and may seem of little importance to the general environment, they are certainly not seen as trivial by those situated closest to them within their environment.

For my part, I do not regard the pipes as a trivial matter in themselves, nor their erection as a trivial breach, and I am therefore not convinced that the de minimis principle has any application in this case.

...

I accept that the pipes in this case constitute a structure or part of a structure if on no other basis that (sic) their effect upon the amenity of the adjoining neighbour is unreasonable in all the circumstances.

The purposes of both Acts include conferring responsibility on a local council to regulate the general amenity of the neighbourhood, and a neighbourhood is after all made up of many individual neighbours whose individual amenities cannot be trivialised.

147. I declined to order removal of the pipes, but I made appropriate declarations, and left it to the parties to agree upon appropriate remedial works for the Court to order.

148. Clearly, as its dispute with Council progressed, and especially after these civil enforcement proceedings were commenced late in 2017, ST has taken a number of measures, and has made what I accept are genuine attempts to alleviate the amenity impacts of its operations on its neighbouring residents in Eva Street.

149. In saying that, I in no way seek to undermine or trivialise the complaints of the residents, which were clearly justified at the time any remedial measures were taken.

150. Indeed, I accept that Ms Oxford won her noise abatement order in August 2018, and that the CDCs were not obtained until September 2018.

151. As I have noted, the site, which lies at the interface of residential and industrial zones, will inevitably cause greater disruption than might typically be expected within a wholly residential area.

152. Also, the residents must accept that some of the conditions of some of the operative consents, obtained by former occupants of the site, and contemplating industrial activity and use of trucks (Tp364, LL46-47), fall far short of prohibiting truck or semi-trailer movements in Eva Street.

153. As is well-established, consents are to be construed “not as documents drafted with legal expertise, but to achieve practical results”, and fairly and liberally: see the cases cited above (at [107] and [108]); Westfield Management Limited v. Perpetual Trustee Company Limited & Anor. [2006] NSWCA 245, per Hodgson JA, at [36]; and House Of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440; [2000] NSWCA 44, per Mason P, Stein and Giles JJA, at [23] and [37]-[41].

154. “[T]he words of a [DC] have the meaning that the consent authority is objectively taken to have intended them to have. Ordinarily that meaning will correspond to the grammatical meaning, but not always. The context of the words, the consequences of a literal or grammatical construction (such as absurdity or inconsistency), the purpose of the [DC], and orthodox cannons of construction may require an alternative interpretation”: per Pepper J, in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75, at [93](f), citing Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252; [2012] NSWLEC 17, per Biscoe J, at [28]. See also Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83, per McColl JA and Sackville AJA, at [18]-[22], and the cases cited therein.

155. Allowing for some overlap and confusion when all consents are considered, it is fair to conclude that each unit of the warehouse on the site enjoys “a bundle of rights” (Mr Galasso at Tp346, LL47-50).

156. I have been very careful in this judgment not to stray into questions of merit, such as those which will be at the centre of the Commissioner’s considerations in deciding the current Class 1 proceedings.

157. So far as the present Class 4 proceedings are concerned, I would apply Talbot J’s finding in Hairis – namely, that there may be more than one valid consent, indeed perhaps a “mosaic of development consents”, in operation at any one time – and so find generally in favour of the Respondents’ case.

158. Overall, their submissions are clearly to be preferred on every substantive aspect of the matter.

159. I turn, therefore, now, to consider what, if any, declarations and orders ought to be made.

147. The Respondents (or, more particularly, the 1st Respondent) has/ve been shown to have been in breach, at times, of DCs, properly and practically construed. However:

1. some of the wording in the consents could cause confusion (e.g. requirements to work only inside buildings, as distinct from only within the boundaries of a “property” (Tpp369-370));

2. Council tended to conflate the factual basis of the two separate cases (especially when it comes to access/egress issues); and

3. I am not satisfied, on the evidence, of any current/continuing breaches, of consents properly construed.

161. The relevant provision of the EPA Act (formerly s124(1), but now s 9.46(1) says:

Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

162. That wording – especially “may make such order as it thinks fit” – has long exercised the judicial mind.

163. As Biscoe J said in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) (2012) 190 LGERA 119; [2012] NSWLEC 43 (“Hoxton Park”) (at [10] and [11] – omitting case references):

[the discretion] is wide and extends to withholding relief ... 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 ... [and] permits the Court to soften, according to the justice of the particular circumstances, the application of the rules which, though right in general, may produce an unjust result in the particular case.

164. His Honour continued (in [12]):

The Court should weigh up all the relevant factors including the injury to the public interest by denial of relief, the likely hardship to the holder of the [DC] by granting relief, and any conduct of the applicant in standing by and allowing substantial expenditure on work before mounting a challenge to validity ...

165. As I said in Bardsley-Smith v Penrith City Council (No 2) [2015] NSWLEC 94 (“Bardsley-Smith”) (at [113]), relying on Hoxton Park:

Declarations of breach, unsupported by remedial orders, may have little effect, but injunctions can also work an injustice, by being disproportionate to the problem at hand.

166. On the utility of so-called “bare declarations”, see generally my judgment in Urquhart v Hayman (No 2) [2012] NSWLEC 269, and Pain J’s in Kempsey Shire Council v Thrush & Anor [2011] NSWLEC 93, both of which refer to Lani ([135] above).

167. In Lani (at [17]-[26]), the learned Chief Judge of this Court, Preston J, discussed what I described in Bardsley-Smith (at [112]) as “the relative efficacy of declarations, orders, and publication of a ‘public pronouncement by the courts’”.

168. I have, like other judges, consistently adopted and applied His Honour’s analysis, e.g. in Bardsley-Smith, but I also did so in Council of the City of Sydney v Mae [2009] NSWLEC 84, where I said (at [29]):

The court should make declarations only where some proper and practical purpose is served (see [Lani], per Preston ChJ at [16]-[25]), and I accept Council’s submissions that a declaration regarding Mr Mae’s non-compliance serves the public interest in ensuring compliance with such orders by members of the community.

(Mae had ignored an emergency s121B order from Council, following a fire.)

169. Lani deserves close consideration.

170. The facts of the case were that the Council sought orders to remedy or restrain the breach of several pieces of environmental and planning legislation. The Respondents admitted each of the Council’s Points of Claim, and negotiated the terms of appropriate injunctive orders, to restrain future breaches, and remedy past breaches, leaving the Court to decide only (1) whether declaratory orders should also be made, and (2) costs.

171. Preston J noted (at [12]):

... The Court, upon finding that a breach of the statute has occurred (any such finding being made on the evidence to the civil standard of proof of on the balance of probabilities), has a wide discretion to make such order as it thinks fit “to remedy or restrain the breach” so found. This enables the Court “to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it” …

172. His Honour then set out (in [13] and [14]) the detail of the injunctive orders agreed upon, and continued ([15]-[22], and [25]):

15   I find that these injunctive orders, agreed to between the parties, are in fact appropriate to restrain and remedy the breaches of the various statutes that I have found above.

16   The Council submits, however, that in addition to the Court making these injunctive orders, the Court should make declarations in terms of the findings I have made above of the breaches by the respondents of the various statutes. The respondents contest the appropriateness of the Court making such declarations.

17   The Council submits that the declarations should be made for both procedural and substantive reasons. The procedural reason is essentially that the regime agreed to by the parties, and found by the Court to be appropriate, involves the respondents undertaking work in the short and mid term and then returning to the Court to determine any further injunctive orders. The Council has concerns, arising from the respondents' past conduct and statements, that the respondents may not undertake the works that would be the subject of the injunctive orders either properly or at all, and further that the individual respondent may leave the country to go to Italy and may not return on the return date before the Court. The Council is concerned that if such concerns were to be realised, the Council would be disadvantaged procedurally in circumstances where the Court has not made declarations that the respondents have breached the various statutes.

18   The substantive reason advanced by the Council is that it is appropriate, having regard to the seriousness of the breaches, that there be a public pronouncement by the Court, in the form of declarations, that the respondents have breached the various statutes. The respondents submit:

“Where the matter involves ‘the suit of the statutory authority which exists to regulate an industry’ the Court will now grant declaratory relief in an appropriate case: Australian Securities & Investment Commission (ASIC) v Sweeney [2001] NSWSC 114 at [31]; Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596 at 603 and 609 (Young J). Such declarations should be made because ‘it is in the public interest that the declarations sought by the regulatory authority be granted to publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged … ’: Australian Securities & Investment Commission (ASIC) v Atlantic 3 Financial (Aust) [2006] QSC 132 at [52] (5 June 2006).”

19   Whilst the Court would have jurisdiction to make declarations that the respondents have breached the planning or environmental statutes in question in this case, I have determined, as a matter of discretion, that declarations would not be appropriate in the circumstances of this case.

20   First, the making of a declaration by itself would not have any practical effect in the circumstances of this case. A declaration that a breach of a statute has occurred does not have any constitutive effect - it does not bring about any change in the rights or duties of the parties.

21   Secondly, declarations of breach of the statutes are not necessary in order for the Court to have jurisdiction to make other orders including the injunctive orders to remedy or restrain breaches of the statute. The Court can make the injunctive orders agreed to by the parties and found by the Court to be appropriate without first making declarations that the respondents have breached the statutes. ...

22   Thirdly, a declaration of breach of a statute by itself neither remedies past breaches of the statute nor restrains any future breaches of the statute. Only the injunctive orders, agreed to by the parties and found by the Court to be appropriate to be made, will achieve the consequences of remedying the past breaches and restraining future breaches of the statutes.

...

25   I accept that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondents. However, this effect can be achieved by the Court making findings in the judgment of the Court, which, of course, is a public document. ...

173. His Honour (at [26]) declined to make the declarations sought by Council, but made a costs order, and, some days later (see [46]), made the injunctive orders, adjusted to take into account His Honour’s reasons.

174. I happily adopt the persuasive reasoning of the learned Chief Judge in Lani.

175. I have come to a similar conclusion in the present case, save that I accept Mr Galasso’s submissions, and the evidence of Mr Hammoud and Dr Tonin, and will, therefore, make no injunctive orders.

176. Were strict compliance with nominated consents to be ordered, it would inappropriately restrict the ability of either Respondent to use the premises in accordance with any DCs applying to the site.

177. I also decline to make any of the orders proposed by Council very late indeed, concerning the EMP (see draft orders submitted on 1 and 20 March 2019: [40] and [42] above) – they go beyond the case it pleaded and argued.

Conclusion

178. For the reasons I have given, the declaratory and injunctive relief sought by the Council lacks utility, and should, in the Court’s discretion, be declined.

Costs

179. Costs orders are compensatory, and not punitive, and the Court’s costs discretion must be exercised judicially: Latoudis v Casey (1990) 36 NSWLR 77; 170 CLR 534; [1990] HCA 59; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

180. The Respondents have offered to pay an unspecified “portion” of Council’s costs of both proceedings, on account of their having conceded that they carried out some unlawful works (see their draft final orders in [41] above), but they resist any order that they pay all of Council’s costs.

181. Council decided to press on with these proceedings when related Class 1 proceedings, dealing with similar amenity issues, were approaching their hearing. Having both Class 1 and Class 4 proceedings running simultaneously can cause significant difficulties: see, for example, Burwood Council v Dixon [2002] NSWLEC 109, and DEXUS Funds Management Ltd v Blacktown City Council (No 2) [2011] NSWLEC 247.

182. Former s 124(3) (now s 9.46) of the EPA Act contemplates that Class 1 proceedings should normally proceed first. Jagot J said of the provision, in Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770, at [10]:

In my view, s 124(3) of the [EPA Act] is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without [DC], in circumstances where [DC] can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined.

183. The commencement of these proceedings, and the seeking of urgent relief, had a desirable impact on the Respondents’ behaviour, and on the adverse amenity impacts of their operations.

184. They should have paid earlier and closer attention to their planning law situation, but they eventually made unsuccessful applications for DC(s), and a building certificate, and are now involved in a Class 1 appeal.

185. Although I have decided to make no declarations or orders, I make no criticism of Council for bringing these proceedings, in order to achieve a legitimate outcome, and, in all the circumstances, I am satisfied that it should receive its costs.

Orders

186. Accordingly, I make the following orders:

1. In matter 2017/362850, the 1st and 2nd Respondents are ordered, jointly and severally, to pay the Applicant’s costs of these proceedings, as agreed or assessed.

2. In matter 2017/362851, the 1st and 2nd Respondents are ordered, jointly and severally, to pay the Applicant’s costs of these proceedings, as agreed or assessed.

3. In respect of both matters, all exhibits (including bundles exhibited to affidavits), the Court Book and the Evidence Book are returned.

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Decision last updated: 24 July 2019