Canterbury City Council v Tai Sun Min and Yung Soon Min

[2003] NSWLEC 210

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Land and Environment Court

of New South Wales

CITATION:

Canterbury City Council v Tai Sun Min and Yung Soon Min & Anor [2003] NSWLEC 210

PARTIES:

APPLICANT:
Canterbury City Council

FIRST RESPONDENTS:
Tai Sun Min and Yung Soon Min

SECOND RESPONDENT:
Alex Lee

FILE NUMBER(S):

(4)0113 of 2002

CORAM:

Lloyd J

KEY ISSUES:

Injunctions and Declarations :- breach of development consent condition - time limited consent - merits

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 80A and s 82

CASES CITED:

Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54;
Newbury District Council v Secretary of State for the Environment [1980] 2 WLR 379, [1980] 1 All ER 731;
Pitt-Mullis v Sydney City Council (1965) 10 LGRA 242

DATES OF HEARING:

11/08/2003

EX TEMPORE
JUDGMENT DATE :

08/11/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A M Hawkes (solicitor)
SOLICITORS:
Pike Pike & Fenwick

FIRST RESPONDENTS:
Mr Jung Wan Min (agent)
SOLICITORS:
N/A

SECOND RESPONDENT:
N/A

JUDGMENT:

- 3 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(4)0113 of 2002

Lloyd J

11 August 2003

CANTERBURY CITY COUNCIL

Applicant
v

TAI SUN MIN AND YUNG SOON MIN

First Respondents
ALEX LEE
Second respondent

EX TEMPORE JUDGMENT

HIS HONOUR:

1 The applicant, Canterbury City Council, seeks declaratory and injunctive relief, effectively to restrain the respondents from using their premises known as No. 45 Ninth Avenue, Campsie for any other purposes other than the approved use of a wedding reception lounge.

2 A number of arguments have been put to me in a preliminary way by Mr Jung Wan Min, the son of the first respondents, as to why the council should not be granted the relief it seeks. It is said, for example, that condition 1.7 of a development consent granted on 22 March 1999 for a restaurant, limiting the use for a period of twelve months, is invalid.

3 In granting a consent the council may grant a consent subject to conditions: see s 80A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). It has been consistently held, since as long ago as 1964, that time limited consents are valid. See, for example, Pitt-Mullis v Sydney City Council (1965) 10 LGRA 242; and the so called Newbury test: Newbury District Council v Secretary of State for the Environment [1980] 2 WLR 379, [1980] 1 All ER 731; and Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54. It is clear that a condition limiting a development consent for a period is and has been held in the past to be valid.

4 A number of other arguments have been raised by Mr Jung Wan Min, but they really go to the merits of the matter rather than the legality of what is presently being carried out at the premises. It is clear to me that the consent granted in 1968 for a wedding reception lounge is simply that. It is a consent for a particular kind of function centre. It is conceded that as such the use of karaoke as an ancillary to the wedding reception lounge is also permissible.

5 What the respondents really seek to do is to use their premises for a function centre generally, and for a restaurant. They made a development application for such use. It was refused. They sought a review under s 82 of the EP&A Act and that was refused. The appropriate place for the respondents to canvass all the merit considerations that they have raised is in a merit planning appeal.

6 I propose, therefore, to grant the relief the council seeks but to postpone the operation of it to enable the respondents to pursue an appeal in Class 1 of the Court’s jurisdiction in which, as I have said, all the merit arguments raised by the respondents can be raised and determined by a commissioner of the Court.

7 I therefore make the orders sought in paragraphs 1 and 2 of the application, but I postpone their operation until 4 March 2004.

THE PARTIES ADDRESSED ON COSTS.

8 HIS HONOUR: The Class 4 proceedings were commenced on 10 May 2002, that is, after the council had issued orders on the first respondents to cease using the premises as a function centre/karaoke bar ancillary use. The council was therefore justified in commencing the proceedings particularly since no appeal in Class 1 of the Court’s jurisdiction had then been filed. It follows that there will be an order that the respondents pay the council’s costs. The exhibits may be returned.

I hereby certify that the preceding 8 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated: 11 August 2003