Cessnock City Council v Ireland

[1999] NSWLEC 253

Land and Environment Court

of New South Wales

CITATION:	Cessnock City Council V Ireland [1999] NSWLEC 253
PARTIES	APPLICANT: Cessnock City Council
RESPONDENT: Ireland
NUMBER:	40073 of 1998
CORAM:	Bignold J
KEY ISSUES:	Practice & Procedure :- Practice and Procedure:- Permanent stay of mandatory injunction granted in respect of an unlawfully erected building after planning law position has been subsequently regularised.
LEGISLATION CITED:
DATES OF HEARING:	10/18/1999
DATE OF JUDGMENT DELIVERY:	11/12/1999
LEGAL REPRESENTATIVES:	APPLICANT: Miss J Blackman, Barrister SOLICITORS: Lortoon Duke RESPONDENT: Mr J Newport, Barrister SOLICITORS: Cleaves Mallik Gibbs

JUDGMENT:

IN THE LAND AND Matter No . 40073 of 1998

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 12 November 1999

CESSNOCK CITY COUNCIL

Applicant

v

P. C. AND P. IRELAND

Respondents

JUDGMENT

Bignold J:

1. On 9 October 1998, Sheahan J made orders, including an order that a building (which had been declared to have been unlawfully constructed without the consent or approval of the Council) be demolished and removed from the Respondents’ property.

2. By order 5, that mandatory injunction was stayed for a stipulated period “in order to provide an opportunity for the parties to regularise the planning law position in relation to the building to their mutual satisfaction”.

3. Thereafter, the Applicants took action seeking to regularise the matter, such action culminating in separate proceedings (Nos 10170 of 1999 and 20033 of 1999) being commenced in this Court by the Applicants by way of appeals against the Council’s (i) refusal to issue a building certificate under the Environmental Planning and Assessment Act 1979 s 149D (the EP&A Act) and (ii) deemed refusal pursuant to the EP&A Act s 82(1) of a development application to use the subject building as a farm shed.

4. In prosecuting those related proceedings, the Applicants foreshadowed an application, in the event of success in the proceedings, to seek a permanent stay of the mandatory injunction: cf Permewan Wright Consolidated Pty Ltd v Attorney General (NSW) (1978) 35 NSWLR 365 where the Court of Appeal (by majority) exercised the power conferred by Supreme Court Rules 1970 (NSW) Pt 42 r 12 to permanently suspend the operation of an injunction that had been earlier granted by the Court.

5. On the hearing of the two related proceedings, the parties invited the Court to take appropriate action in respect of the mandatory injunction in the event of the Applicants being entirely successful in those proceedings, without requiring the Applicants to move the Court by Notice of Motion and without requiring the question to be referred to Sheahan J for consideration by him. I take it that this joint submission was made in order to avoid the incurring by the parties of additional costs and the need for additional Court resources to be involved in the case. I also take it that the Council did not wish to be heard in opposition of the permanent stay of the mandatory injunction in the event of the Applicants being successful in the two related proceedings. I interpose that by consent of the parties, the suspension or stay of Sheahan J’s mandatory injunction has been continued until delivery of judgment in the two related proceedings.

6. In my judgment in those proceedings delivered today, the Applicants have been totally successful inasmuch as I have ordered the Council to issue the requisite building certificate and I have granted development consent for the prospective use of the subject building as a farmshed etc.

7. In the light of the foregoing facts, I am of the opinion that it is appropriate to permanently stay the mandatory injunction granted by Sheahan J on the ground that the Applicants, by virtue of their success in the two related proceedings, must be taken to have “regularised the planning law position in relation to the building” as that expression was adopted by his Honour.

8. I accept that his Honour’s words perhaps contemplated a regularising to “the mutual satisfaction” of the parties, and that the Applicants’ success in the proceedings was the result of success in adverse litigation, vigorously defended by the Council.

9. However, the Court’s decision in each of those proceedings is deemed by the Land and Environment Court Act 1979 s 39(5) to be “the decision of the person whose decision is the subject of the appeal”, and I do not think it can be seriously doubted that such a result satisfies the pith and essence of the condition upon which Sheahan J had temporarily stayed the mandatory injunction.

10. As the matter raised a question of practice and procedure of the Court and perhaps a question of comity, I should note that I have discussed with Sheahan J the procedure that I have been invited to adopt by the parties, and he has expressed no concern with that procedure.

11. In my judgment and for the reasons I have given, it is appropriate to permanently stay the mandatory injunction granted by Sheahan J in order 4 pronounced on 9 October 1998, and I so order.