Manly Council v Arslan - [2005] NSWLEC 646

Land and Environment Court

of New South Wales

CITATION:
Manly Council v Arslan, M [2005] NSWLEC 646

PARTIES:
APPLICANT
Manly Council
RESPONDENT
Memet Arslan

FILE NUMBER(S):
40429 of 2004

CORAM:
Talbot J

KEY ISSUES:
Contempt :- consideration of mitigating factors

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979, s96

CASES CITED:
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435

DATES OF HEARING: 14/11/05

EX TEMPORE JUDGMENT DATE:
11/14/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr T G Howard (Barrister)
SOLICITORS
Abbott Tout
RESPONDENT
Mr M Seymour (Barrister)
SOLICITORS
White Barnes

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

14 November 2005

40429 of 2004 Manly Council v Arslan, M and Anor
EX TEMPORE JUDGMENT

1 Talbot J: On 11 May 1993, Manly Council granted development consent for a proposed take-away food shop and refreshment room at 102 The Corso, Manly, including a condition that the hours of operation should not exceed Monday to Sunday, 8am to midnight. At the relevant times for the purpose of these proceedings, the First Respondent was the person who carried out the business with the benefit of that development consent.

2 These proceedings originated in 2004 when the council made an application in the Class 4 jurisdiction of the Court, and sought orders, generally, in relation to alleged breaches of conditions of the consent. The Class 4 proceedings never went to a substantive hearing and were stood over from time to time while the First Respondent was given opportunities to obtain consent in a form that enabled him to trade beyond the hours of operation specified in the 1993 instrument.

3 In the first instance, a development application seeking consent to extended hours of trading was determined by a grant of consent to allow trading to 2am for a trial period of six months. The trial period expired on 12 February 2004. Subsequently, after the commencement of the Class 4 proceedings following the expiration of the trial period, a s 96 application was made to modify the terms of the consent. An appeal was lodged in respect of that s 96 application.

4 By the s 96 application the Respondent was seeking an extension of hours to 2am on a permanent basis. The appeal proceedings were discontinued when a further development application was lodged seeking extended trading hours beyond 2am. Ultimately the new development application was the subject of a further appeal to the Court. That had the result of a consent from the Court whereby opening was permitted to 1.30am for a trial period to March 2006.

5 Pending the outcome of the Class One appeal, in order to meet the concerns of the council in respect of trading in the meantime, the First Respondent gave an undertaking to the Court on 2 August 2005. That undertaking, although to a large extent in general terms, did contain a degree of specificity to the effect that the Respondent undertook to use the premises for the purposes of the business on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 646
Decision Date: 11/14/2005

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over a case between Manly Council and Memet Arslan, the latter being the operator of a takeaway food shop and refreshment room at 102 The Corso, Manly. The council had granted development consent for the business, subject to a condition that the hours of operation should not exceed 8am to midnight, Monday to Sunday. In 2004, the council applied to the court seeking orders in relation to alleged breaches of the consent conditions. The proceedings were stood over while the respondent was given opportunities to obtain consent for extended trading hours. Eventually, the court granted a consent for trading until 1:30am for a trial period to March 2006. Pending the outcome of the appeal, the respondent gave an undertaking to the court to operate within the specified hours of operation until the appeal was determined. However, the respondent breached this undertaking by operating beyond the permitted hours.

The court considered the contempt of court by the respondent and the mitigating factors presented by the respondent’s legal representative. The court recognised that the respondent may have believed that the trading problems would be resolved in another way, either on appeal or by further resolution of the council. However, the court emphasised the importance of complying with court orders and held that the respondent’s contemptuous behaviour constituted a serious breach. The court also considered the mitigating factors presented, including the respondent’s acceptance of responsibility for costs, his early guilty plea, and his health issues. Ultimately, the court decided to impose a penalty of $10,000 and ordered the respondent to pay the council’s costs.

The court dismissed the application and discharged the respondent from any further call in relation to the Class 4 application, as the undertaking given had been satisfied by the determination of the Class 1 proceedings. The court ordered the exhibits to be returned and the case concluded.

Orders