Hurstville City Council v Brambles Australia Limited t/a Cleanaway

[2001] NSWLEC 21

Land and Environment Court

of New South Wales

CITATION:

Hurstville City Council v Brambles Australia Limited t/a Cleanaway [2001] NSWLEC 21

PARTIES:

APPLICANT
Hurstville City Council

RESPONDENT
Brambles Australia Limited t/a Cleanaway

FILE NUMBER(S):

40056 of 2000

CORAM:

Cowdroy J

KEY ISSUES:

:-

LEGISLATION CITED:

CASES CITED:

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING:

29/01/01

EX TEMPORE
JUDGMENT DATE :

01/29/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr P R Rigg, Solicitor

SOLICITORS
Deacons

RESPONDENT
Mr P Lalich, Solicitor

SOLICITORS
Allen Allen & Hemsley

JUDGMENT:

IN THE LAND AND MATTER NO. 40056 of 2000
ENVIRONMENT COURT CORAM: Cowdroy J
OF NEW SOUTH WALES DECISION DATE: 29-01-2001

Hurstville City Council

v

Brambles Australia Limited t/a Cleanaway

EXTEMPORE JUDGMENT

1. HIS HONOUR: In this matter by application class four, dated 11 April 2000, the applicant, which I shall refer to as the council, seeks a restraining order against the respondent in relation to premises known as 20 Hearne Street, Mortdale (“the premises”). The council seeks to restrain the use thereof otherwise than in accordance with the conditions attached to Development Application Number 250/90 (“the conditions”). The premises are used for a transport yard and it is alleged that the operation of those premises breaches the hours of operation contained in condition 3, and condition 12, relating to the amenity of the neighbourhood.

2. Upon the filing of that application, class one proceedings were instituted by the respondent, seeking extended hours of operation of the transport yard. They were determined by Commissioner Nott on 13 September 2000, when he dismissed the appeal. From that date the respondent has known that it could not use those premises otherwise than in accordance with its consent. In fact it might be inferred that the applicant was well aware of such fact from the date of the institution by council of the class four proceedings in April 2000.

3. Mr Lalich, who appears for the respondent, is instructed not to oppose the restraining order sought by council as contained in the application subject to a deferment or suspension of the operation of the order. His client seeks that it be permitted to continue to use such premises until 30 June 2001 during hours beyond those stipulated in the conditions. The council agrees that such order be suspended for a period of two weeks. The only issue in contention between the parties therefore is the duration of the suspension of the order.

4. Mr Ian McQuhae, the manager of the premises has provided an affidavit which details certain attempts to find alternative premises. Mr McQuhae has also given oral evidence in which he has detailed the fact that one of the premises which was selected at Chipping Norton failed to materialise, but that an alternative site in the Bankstown area has been selected. A development application was lodged for those premises in December 2000, and the period of advertisement required for the use of the premises has now expired. It is expected that a decision will be given by the Bankstown Council within the next three weeks, and that decision is expected to be favourable. If so it is the respondent's intention to formalise the lease of those premises and then make alterations to them to enable them to be suitable for the purposes of the respondent. It is for that reason that the six months’ suspension of the restraining order is sought.

5. There are certain matters which the Court must consider when exercising its discretion as explained by the President of the Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at p 339-341. One of those matters is the fact that the premises are currently operating illegally when operating at hours contrary to those imposed by the consent. The other is the public interest, namely that there has been resident complaints justifying the council instituting these proceedings.

6. The competing matter is the fact that the respondent has been operating its business on the premises since approximately 1990. However, originally the hours of operation complied with the consent. The activities of the respondent have been progressively extended which has led to this application.

7. The Court is satisfied that a period should be granted to enable the respondent to re-arrange its activities. Whilst there is no current evidence that disturbance is being caused to the residents, the Court takes into account the findings of Commissioner Nott which refer to such problems.

8. The period of six months for suspension of the restraining order sought is, in the Court's view, too long. If approval is to be granted by Bankstown Council to alternative premises within three weeks of this date the result would be known by 19 February 2001. Obviously the respondent would need some period thereafter to arrange the legal formalities for its lease and to make arrangements to re-locate its business. However, six months for that purpose seems to be an inordinately long period.

9. Bearing in mind the history of the matter, the Court considers that two weeks, as proposed by council, is too short. The appropriate time to enable the respondent to organise its affairs would be to the end of April 2001. By that date the determination by Bankstown Council will have been made and the respondent should at least have been able to make arrangements, albeit in a temporary way, at the proposed premises.

10. If, for some reason, the consent of Bankstown Council is not forthcoming, or it is impossible for the respondent to negotiate a suitable lease, then the respondent may need until the end of April 2001 to make alternative arrangements. In the circumstances the Court will suspend the restraining order until Sunday 29 April 2001. Such period will allow the respondent a period of three months to re-arrange its affairs.

11. The Court has been requested to grant liberty to apply in the event that the respondent is unable to organise the lease of the Bankstown premises. Bearing in mind the fact that the company has had since September 2000 to find alternative premises, and that it must have known that it was at risk since April 2000. The Court considers that the time stipulated for the extension of the order, that is 29 April, is the final time, and for that reason liberty to relist the matter for that eventuality should be unnecessary.

12. The Court will grant liberty to apply, but in doing so it indicates that merely because the premises at Bankstown do not materialise would not, by itself, be regarded as a sufficient reason for any further extension. The company must organise its affairs so that 29 April 2001 is the final deadline, and mere economic or logistical inconvenience would not be regarded as a reason for seeking a further suspension of the order.

Orders

1. The Court makes the order number 1 in the application class one, and suspends such order until 29 April 2001.

2. Costs reserved with either party having liberty to apply on seven days notice to the other.

3. Liberty to apply granted to the respondent to seek any further extension of order number 1.