Council of the City of Sydney v Hi Wind Pty Limited
[2007] NSWLEC 161
•15 March 2007
Land and Environment Court
of New South Wales
CITATION: Council of the City of Sydney v Hi Wind Pty Limited [2007] NSWLEC 161 PARTIES: APPLICANT
RESPONDENT
Council of the City of Sydney
Hi Wind Pty LimitedFILE NUMBER(S): 40861 of 2006 CORAM: Preston CJ KEY ISSUES: Civil Enforcement :- operation of a nightclub without operative place of public entertainment approval - premises do not comply with Building Code of Australia - injunction restraining use until approval obtained - costs LEGISLATION CITED: Local Government Act 1993 (NSW) DATES OF HEARING: 22/02/2007, 08/03/2007, 15/03/2007 EX TEMPORE JUDGMENT DATE: 15 March 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr S Kondilios (Solicitor)
SOLICITORS
Maddocks LawyersRESPONDENT
Mr S Alexander (Solicitor)
SOLICITORS
Alexanders Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
PRESTON CJ
15 MARCH 2007
40861 OF 2006
COUNCIL OF THE CITY OF SYDNEY V HI WIND PTY LIMITED
JUDGMENT
1 HIS HONOUR: Sydney City Council commenced Class 4 proceedings seeking declaratory and injunctive relief against the respondent in relation to its use of premises at 163 Oxford Street, Darlinghurst as a place of public entertainment without approval.
2 The respondent is the lessee of part of the premises at that address in which it operates a nightclub which trades under the name of “Mylk”. There is another nightclub on another floor of the premises which trades under the name of Havana.
3 The respondent traded as a nightclub on the part of the premises pursuant to a place of public entertainment approval issued by the Council on 11 January 2005. As is the custom, the place of public entertainment approval had a limited period of operation, in this case two years. Accordingly, the approval that was issued on 11 January 2005 was stated to expire on 11 January 2007.
4 In addition, this place of public entertainment approval contained a condition which provided for an earlier lapsing of the approval within a period of six months of the date of issue if certain requirements set out in condition 1 were not completed within the six month period. The requirements related to the satisfactory provision of a system of CCTV and the provision of relevant certificates that such a system had been satisfactorily completed.
5 The Council commenced the proceedings on 14 September 2006. At that time, the Council’s case was that the place of public entertainment approval was no longer in operation and that accordingly the respondent was using the part of the premises, which was the Mylk nightclub, as a place of public entertainment without approval and hence in breach of the Local Government Act 1993 (NSW). That result, the Council pleaded, flowed from the non-compliance by the respondent with condition 1 of the place of public entertainment approval, namely the failure to satisfactorily provide a system of CCTV. The respondent joined issue with this pleading of the Council.
6 The matter was prepared for hearing and there were various interlocutory applications. Ultimately the matter was fixed for final hearing on 22 February 2007. At the hearing, the Council sought leave to amend its application so as to plead in the alternative a second reason for the place of public entertainment approval not being in operation and there being a breach of the Local Government Act 1993, namely that the approval had lapsed on 11 January 2007.
7 At the hearing on 22 February 2007 it became evident that if the place of public entertainment approval had lapsed on 11 January 2007 then the Council’s previous argument for the place of public entertainment approval no longer being in operation, namely that there had been a lapse six months after the date of issue, no longer needed to be determined. Even if the respondent were to be successful in defending the Council’s first reason, it would have no answer to the Council’s second reason which was that the approval had expired by effluxion of the two year period.
8 In the events that happened, the respondent and the Council reached a consensus that the place of public entertainment approval had expired and accordingly agreed that a declaration was appropriate that the place of public entertainment approval dated 11 January 2005 had expired and that since 11 January 2007 the respondent had been using the premises as a place of public entertainment without approval.
9 The Council and the respondent also reached agreement that certain works needed to be done in order to make the premises suitable as a place of public entertainment and for the respondent to obtain a new place of public entertainment approval for the future use of the premises as a place of public entertainment.
10 Accordingly, by consent, the Court made orders making the declaration to the effect that I have said and setting out a regime for the carrying out of works and for applying for and obtaining the place of public entertainment approval.
11 Subsequently the Council re-listed the matter before the Court on 8 March 2007. The reason the Council listed the matter was that the steps that the Court had directed be undertaken by its orders of 22 February 2007 had not been undertaken by the respondent.
12 No particular explanation has been provided as to why the respondent did not undertake certain of those steps which involve the carrying out of works. An explanation was provided as to why the respondent had failed to lodge an application for a further place of public entertainment approval with the Council. That explanation was that the respondent as lessee was unable to secure the consent of the owner/lessor to the application. The reason the owner would not provide its consent to the lodging of the application was that the owner had independently sought a report of a building surveyor consultant as to the state of the premises’ compliance with the fire safety provisions of the Building Code of Australia. That report was not to hand at the time that the matter was before the Court on 8 March 2007. The respondent indicated it would be prepared to set a new timetable essentially along the same lines as the timetable that had been directed on 22 February 2007 with a view to now doing the steps that were required and lodging the application for a place of public entertainment approval.
13 Accordingly on 8 March 2007, again by consent, further directions were made enlarging the time to do the various steps. The matter was listed before me today to report as to the doing of those steps. Today it has been revealed that certain of the steps have been done but there is an issue between the parties as to whether other works have been completed. The Council says they have not been completed while the respondent says they have been completed.
14 More importantly is the fact that the lessor’s solicitor has communicated with the parties advising that the lessor has obtained the report of the building surveying consultant assessing the building’s compliance with the fire safety provisions of the Building Code of Australia. In summary, that report concludes that the building does not comply with the main fire safety requirements of the Building Code of Australia in terms of fire resistance, fire hazard indices of materials, fire compartmentation and separation, protection of openings, construction of exits, fire safety measures and place of public entertainment requirements.
15 The lessor indicated that it was considering that report. In the meantime the lessor was not forthcoming in providing its consent to the lessee, the respondent, to make application to the Council for a place of public entertainment approval.
16 Accordingly, the situation now is that there is an ongoing breach of the Local Government Act 1993 in that the respondent is using part of the premises as a place of public entertainment without the requisite place of public entertainment approval. This breach can now be seen to be not technical. The premises, according to the report obtained by the lessor, do not comply with the main fire safety requirements of the Building Code of Australia. Whilst that non-compliance with the fire safety requirements of the Building Code of Australia continues, the premises are unsuitable to be used as a place of public entertainment.
17 Accordingly, the Court, in the proper exercise of its discretion, should grant injunctive relief restraining the future use of the premises as a place of public entertainment unless and until a place of public entertainment approval is obtained. It is likely that such an approval will not be obtained until such time that the requisite works have been done to make the premises comply with the fire safety requirements of the Building Code of Australia.
18 The Court can mollify this effect to some degree by granting liberty to the applicant to apply to have the injunction dissolved or varied if the circumstances change.
19 For these reasons, I consider that it is appropriate now to make an order to the substantial effect to that sought by the Council in para 3 of its amended Class 4 application.
20 This brings me to the question of costs. The costs of both 8 March 2007 and today should clearly be awarded to the applicant. The occasion for the matter coming before the Court on those occasions was the non-compliance by the respondent with the Court’s directions made on 22 February 2007. However, the Council seeks its costs of the proceedings generally.
21 As I have said, ultimately the declaration that was made by the Court on 22 February 2007 was made by consent. However, of course, the Court does not exercise the declaratory power without first satisfying itself that it is within jurisdiction and appropriate to make a declaration. As I have noted, by the time of the hearing on 22 February 2007, the place of public entertainment approval had passed the expiry date of 11 January 2007. Accordingly, it was unarguable that the place of public entertainment approval was no longer in operation and that at least from 11 January 2007 the continual use of the premises as a place of public entertainment was contrary to the Local Government Act 1993.
22 In these circumstances, the applicant has been successful in obtaining the declaratory relief it sought in its application. It did not on that occasion obtain the injunctive relief it sought. However that was because a regime had been agreed between the parties whereby the breach of the Act was sought to be regularised by the doing of works and the making of an application for a further place of public entertainment approval. In these circumstances, the parties considered it appropriate that an injunction not be granted whilst that regime was being pursued.
23 However, notwithstanding two attempts to pursue that regime, it has proved to be unsuccessful. That is not wholly the fault of the respondent. Of critical importance has been the revelation that the premises are not in accordance with the main fire safety requirements of the Building Code of Australia. Nevertheless, it has now become apparent that the Council’s prayer for relief for an injunction is also an appropriate order and to the extent that the Court will now grant one the Council has been successful in that respect as well.
24 The Council had, by the time of the hearing, two alternative bases for the declaratory and injunctive relief that it sought, one of which was the argument that by reason of non-compliance with condition 1 of the place of public entertainment approval the consent had lapsed, but the second was that by reason of the expiration of the two year period of the approval, the approval was no longer in force. Either way, the Council’s case was that by the time of the hearing there was no operative approval. Although the Council has succeeded on the second and not the first point, nevertheless I consider it would be inappropriate to split the costs outcome on this basis.
25 In Class 4 proceedings in the Court, the usual order is that costs follow the event. Many cases have established that where an applicant seeks relief based upon a number of arguments, if they succeed on one argument but not others, that fact does not provide a justification for considering that the event was other than that the applicant has been successful. It is inappropriate to try to divide the costs of the proceedings by reference to the issue or the reason upon which the plaintiff succeeded. There are, of course, some exceptions to this approach but that is the general approach.
26 In this case also, I consider that although the second reason was added at a later point of time, it was always on the cards and the respondent must have known that that would be the consequence once the expiry date of the approval had passed. The continual opposition of the respondent to the applicant’s case would therefore seem to be unreasonable once the 11 January 2007 date was passed. From then on it was indisputable that the respondent did not have an operative place of public entertainment approval and was operating in breach of the Local Government Act 1993 and that accordingly it would need to make application for such an approval. It did not do so then and now has not done so because of the events that have transpired in relation to the owner’s consent.
27 In these circumstances, I consider that the proper order is the usual order that the respondent pay the applicant’s costs. This would include, of course, the costs of the appearances before me today and on 8 March 2007. It would also subsume earlier appearances before the Court where questions of costs were reserved.
Orders
28 The Court makes the following orders:
1. The respondent is ordered to immediately cease using the premises at 163 Oxford Street, Darlinghurst as a place of public entertainment unless and until a place of public entertainment approval pursuant to s 68 of the Local Government Act 1993 is obtained;
2. The parties have liberty to restore the proceedings before the court on giving two days’ notice to the other party;
3. The respondent is to pay the applicant’s costs of the proceedings.
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