Marrickville Council v Tanwar Enterprises Pty Ltd

[2009] NSWLEC 127

Land and Environment Court

of New South Wales

CITATION:

Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127

PARTIES:

APPLICANT
Marrickville Council

FIRST RESPONDENT
Tanwar Enterprises Pty Ltd

SECOND RESPONDENT
Ramesh Tanwar

FILE NUMBER(S):

40168 of 2009

CORAM:

Pepper J

KEY ISSUES:

INJUNCTIONS AND DECLARATIONS :- development consent conditions - breach - continuing breach - declaration and injunction sought - appropriateness of remedy - relief granted - INTERLOCUTORY ORDER - application to adjourn proceedings pursuant to s 124(3) of Act - application dismissed

LEGISLATION CITED:

Environment Planning and Assessment Act 1979 ss 76A and 124(3)

CASES CITED:

Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119
Council of the City of Sydney v Mae [2009] NSWLEC 84
Grace v Thomas St Café Pty Limited (No 2) [2008] NSWLEC 179
Great Lakes Council v Lani (2007) 158 LGERA 1
Sahade v The Owners – Strata Plan No 62022 [2006] NSWLEC 770
Tanwar v Marrickville Council [2009] NSWLEC 1018

DATES OF HEARING:

29 July 2009

EX TEMPORE JUDGMENT DATE:

29 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr I Hemmings
SOLICITORS
Marrickville Council

RESPONDENTS
Mr M McMahon (solicitor)
SOLICITORS
M.E. McMahon & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

29 July 2009

40168 of 2009 Marrickville Council v Tanwar Enterprises Pty Ltd and Ramesh Tanwar

EX TEMPORE JUDGMENT

HER HONOUR :

1. By way of amended summons filed 23 April 2009 the applicant council (“the council”) seeks a declaration that the first and second respondents have either themselves, or by their servants and agents, breached s 76A(1) of the Environment Planning and Assessment Act 1979 (“the EPAA”) by carrying out development being the use of land Lot 12 DP 629250 in Lewisham (“the Property”), contrary to conditions 3, 3A, 3B, 3E and 5 of development consent no 9898 dated 8 May 1985 (“the conditions”), as modified on 23 January 2009 (“the Development Consent”).

2. The council also seeks an order that the respondents, their servants and agents, be restrained from carrying out development in use of the Property except in accordance with the Development Consent.

3. Finally, the council seeks an order that the respondents pay the council’s costs of the proceedings.

4. While orders in respect of a breach of condition 3D were also sought by the Council in the Amended Summons, at the hearing these were not pursued in light of the evidence.

5. The orders sought by the council were opposed by the respondents. This was so notwithstanding that the respondents admitted during the course of the hearing that they had been in breach of the conditions since the 23 January 2009, and continued to be in breach.

6. The Property consists of a service station and car repair station. Goods such as newspapers, milk, bread, soft drink and confectionery are also sold from the shop attached to the service station.

Zoning

7. The Property is zoned Residential 2(A) under the Marrickville Local Environmental Plan 2001. A “service station” and a “car repair shop” are both prohibited within the zone, however, the Property benefits from existing use rights. This has the effect that the provisions of the planning controls of the council that relate to the Property apply only insofar as they do not derogate from the existing use rights provisions of the EPAA and the Environmental Planning and Assessment Regulations 2000.

8. The Property is located in a predominantly residential area with the exception of the northern boundary which adjoins Lewisham Public School.

Factual Background

9. The factual background is not in dispute and is as follows:

(a) the Property is owned by Mr George and Mrs Angela Varikos in half share and Mr Arthur and Mrs Emelea Papadopoulos in half share. A lease to Tanwar Enterprises Pty Ltd (“Tanwar Enterprises”) is registered over the Property and expires on 31 December 2010. Tanwar Enterprises trades as Tanwar Petroleum (“Tanwar”) and occupies the Property. The sole director, secretary and shareholder of Tanwar is Mr Ramesh Tanwar;

(b) by determination no 9898 dated 8 May 1985, the owners of the Property were granted consent to use the Property as a service station. The hours of operation were restricted to 7.00am – 7.00pm Monday to Saturday and 9.00am – 6.00pm on Sundays and public holidays. Council reserved the right to reduce these hours if it considered that trading was causing an inconvenience or loss of amenity to the surrounding residential locality (condition 3). Further, the lighting of the buildings had to be carried out so as to not cause inconvenience or nuisance to nearby occupants between the hours of 9.00pm and 7.00am (condition 5);

(c) the hours of operation were confirmed by the council on 19 September 2001;

(d) an application to modify the hours of operation was made by the first respondent. In the application, Tanwar sought to vary condition 3 to permit 24 hour trading and to use the premises as a taxi changeover base;

(e) on 4 June 2008 this application was refused because:

(i) the proposed 24 hours a day, seven days a week, hours of operation would adversely impact on the residential amenity of the surrounding area;
(ii) the extended hours of operation were likely to result in an increased opportunity for robbery given the lack of active uses surrounding the premises;
(iii) the New South Wales Police did not support the proposed extended hours of operation;
(iv) Marrickville Council’s Code for the Control of Erection of Signs and Advertising Structures (Signage Code) prohibited signs being illuminated between the hours of 10.00pm and 7.00am the following day on land in or abutting residential zoned areas; and
(v) approval of the application would not be in the public interest.


(f) accordingly, a class 1 appeal was lodged by the second respondent in this Court in respect of the refusal;

(g) at the hearing of the appeal, the respondents sought trading from 5.00am to midnight, seven days a week. In response, the Council proposed the hours of operation to be restricted to 7.00am – 10.00pm. The council opposed, however, the property being used as a taxi changeover base;

(h) on 23 January 2009, Commissioner Brown delivered an ex tempore judgment upholding the appeal ( Tanwar v Marrickville Council [2009] NSWLEC 1018). Determination no 9898 was modified by the insertion of new conditions 3, 3A, 3B, 3C, 3D, 3E, 3F and 5 by way of order. These were effective immediately;

(i) in his judgment Commissioner Brown stated as follows at [8]-[14]:


8 The hearing commenced on-site with Mr Charlie Formosa of 292 New Canterbury Road (directly opposite the site) and Senior Constable Steve Jacka from the Marrickville Local Area Command providing evidence on site. Mr Formosa stated that the existing service station currently operates outside its approved hours of operation and while not opposing some extension of the operating hours; he opposes the hours sought by the applicant. He has experienced unacceptable impacts on his amenity through early-morning deliveries of petrol, the use of the facility as a taxi change over base and light spill. These disturbances have occurred at all times of the night. Mr Formosa provided a petition from a number of residents in the area opposing the extended trading hours.

9 Senior Constable Jacka provided details of the unsafe nature and recent armed robberies that have occurred at the site. In Senior Constable Jacka’s opinion, these activities are related to the particular characteristics of the site and its building. He states that the site is especially vulnerable to criminal activity because of its location away from other commercial activities, particularly when the surrounding area is dark and the inadequate facilities provided to protect employees. These include the absence of a safe room, CCTV, the absence of any method to pay for petrol at night without entering the shop and the inability to properly observe potential criminals because of the layout of the existing shop. For these reasons, Senior Constable Jacka did not support the extended trading hours.

10 Expert town planning reports were provided by Mr Anthony Betros for the applicant and Mr Jamie Erken for the council. Mr Betros supports the application on the basis that the site is not within a traditional residential zone. In his opinion, the location is not a typical residential area as it located on a busy four-lane arterial road and on two sides by a school. As the proposed use does not generate excessive noise or other amenity impacts it is acceptable.

11 Mr Erken comes to the opposite conclusion. He places some emphasis on the residential zoning and considers the proposed hours of operation are excessive and would likely result in reduced levels of amenity for residents of adjoining and surrounding properties. He dismisses any reliance on the site's location on New Canterbury Road as a basis for approval as traffic is significantly less on this road outside peak times.

12 With the benefit of the site view, an understanding of the relationship of the site with the adjoining residential properties, the evidence of Mr Formosa, Senior Constable Jacka and Mr Erken the proposed extension of the operating hours is clearly inappropriate. For expediency, the parties were advised on-site that there is a fundamental problem in allowing the extension of the operating hours for the service station given the proximity to residential development and the general operation of a service station. The parties were also advised that the Court would not be prepared to support the proposed extension of operating hours based on the evidence of Senior Constable Jacka because of the poor security for employees in the shop late at night. The applicant was directed to consider whether reduced operating hours from that proposed in the modification application could be entertained.

13 At the resumption of the hearing, Mr McMahon for the applicant accepted the draft conditions proposed by the council (see par 7) plus a further amendment to condition 3 modifying the hours of operation to 6.00 a.m. and 8.00 p.m. seven days per week and a corresponding change to condition 5. Mr Hemmings, on behalf of the council, raised no objection to the further modifications proposed by Mr McMahon.

14 With the further modified conditions, I am satisfied that the appeal can be upheld as the modified consent now provides greater protection to the residential properties surrounding the site while allowing some change to the operating times for the service station. Based on the evidence of Senior Constable Jacka, the modified operating hours should not place undue risk on the employees of the service station;

(j) the council then wrote to the respondents on 16 February 2009, stating that it had evidence that it was in breach of the conditions and threatening class 4 proceedings to restrain the use of the Property. No response was received;

(k) on 26 February 2009, the Council wrote to the respondents stating that they were in breach and enclosing an undertaking to be provided by them;

(l) a reply, but no undertaking, was received on 3 March 2009. The reply did not deny the alleged breaches but instead invited the Council to visit the premises in order to make “suitable arrangement (sic)”;

(m) on 4 March 2009, the Council again wrote to the respondents, via their solicitor, and again sought a suitable undertaking;

(n) on 5 March 2009, Mr Tanwar responded effectively admitting breach in relation to the hours of operation but stating that this was necessary because it took “about 1 hour” to close the shop. He stated that, however, the shop was closed to customers at 8.00pm;

(o) these proceedings were commenced on 3 April 2009; and

(p) on 7 July 2009, the respondents lodged an application to modify the Development Consent to permit trading hours from 5.00am – 10.00pm and in order to meet the safety concerns associated with the extended trade, to close the shop at 8.00pm and carry out trade through a security window.

Terms of the Development Consent

10. Relevantly, the Development Consent conditions, effective as at 23 January 2009, were as follows:

3. The hours of operation for petrol sales in the shop are restricted to 6.00 am to 8.00 pm seven days a week.

3A. The property is not to be used as a taxi changeover base.

3B. All deliveries of fuel or any other products are limited to the hours of operation authorised by condition 3.
…

3E. All products, goods or equipment stored in front of the shop area are to be moved and stored within a building on the site when the premises is closed.
…

5. All lighting on the site, including the advertising signage, is to be switched off between the hours of 8.00 pm to 6.00 am seven days a week.

Evidence of Council

11. In addition to the late admission of breach and continuing breach, the council relied on the evidence of Sgt Robert Wood, Mr Jeffrey Norman (employed by the council) and Mr Charlie Formosa, who lives opposite the service station. None were required for cross examination.

12. The evidence of all three witnesses unequivocally demonstrated that the respondents breached, on numerous occasions, conditions 3, 3A, 3B, 3E and 5.

13. For example, based on the evidence of Mr Jeffrey Norman it is clear that from 23 January to 18 April 2009, the respondents frequently breached the conditions in that he observed, after the 8.00pm closure time for the service station, that the shop often had its lights on and was trading and that it was being used as a taxi changeover base. Thus:

(a) on 26 January 2009, he observed from 9.20pm to 11.02pm the petrol station and shop open with customers using the bowsers and entering and leaving the shop having clearly purchased items in the shop and, by inference, having paid for petrol;
(b) this occurred again on 27 January 2009 from 8.30pm to 9.58pm;

(c) likewise on 28 January 2009 from 9.16pm to 9.55pm;

(d) on 8 April 2009, Mr Norman undertook observations of the Property from 4.45am to 6.00am. At approximately 5.06am he saw a blue Toyota Camry sedan enter the Property and park. He then saw a man exit the vehicle, open the shop door and turn on the lights inside the shop. He subsequently observed the same man stacking drink bottles outside the shop window. A short while later the man swept the forecourt area of the service station and picked up rubbish;

(e) Mr Norman also stated that when he first arrived on the Property on 8 August 2009, he saw a total of five taxis parked there. During his surveillance he also saw a car drive onto the Property where it parked and the driver exited the car and walked over to one of the taxis parked on the Property and then drive off;

(f) on 18 April 2009, Mr Norman commenced his observations at approximately 4.45am and continued through to 6.00am. During this time he saw four taxis parked on the Property. He witnessed one man turn off the lights of one of the taxis that was parked on the Property, walk to a vehicle and then drive away. He likewise saw another vehicle enter the Property, park and a man wearing a white uniform exit the vehicle, walk to a silver service taxi, enter the taxi and drive off. This occurred prior to 5.30am. At 5.45am Mr Norman saw a truck enter the Property and stop in the forecourt area. He saw two men exit from the truck. He saw men remove a crate of bread from the truck which they placed on top of a refrigerator stored adjacent to the shop; and

(g) finally, on 18 April 2009, Mr Norman undertook observations of the Property commencing at 4.45am and concluding at 6.00am. During this time he saw four taxis parked on the Property. He saw a man enter into one of the taxis and drive off at 4.57am. At 5.07am he saw a man open the shop door and turn on all the internal lights of the shop area. He then saw the man starting to bring out orange coloured crates and place these crates onto the concrete forecourt area. The crates contained soft drink bottles, which the man then began to stack onto shelves outside the shop area. Mr Norman observed several additional taxis leave the Property. Mr Norman observed the man who had opened the shop mop the floor of the shop and then at 5.38am open the roller door between the shop and the mechanical work shop and wheel out a trolley containing oil products which were placed near the refrigerator adjacent to the shop entrance. By 5.40am Mr Norman observed all of the lights on the Property turned on including the canopy, illuminated sign with price board, bowser/petrol lights and all under canopy lights. He then saw the man re-enter the shop and stand behind the console/counter area.

14. In an affidavit filed in Court on the day of the hearing, Mr Norman gave evidence that breaches were further observed by him on 4, 6, 25 and 27 June 2009.

15. Similar evidence to that observed by Mr Norman in relation to the opening of the shop and the parking of taxis on the Property, was given by Mr Charlie Formosa. Because of the proximity of the service station to his property Mr Formosa was able to see most of the activities carried out on it. Mr Formosa gave general evidence that:

(a) between 2.30am to 3.30am men entered onto the Property to either pick up or drop off taxis. By around 5.00am the lights were usually on in the shop and the service station attendant who opened the shop carried plastic crates from the shop containing soft drink bottles. These bottles were placed in racks in the front of the shop area;

(b) on most weekdays the canopy, bowser lights and the illuminated advertising sign were turned on around 5.30am. All of these lights were always turned on before 6.00am;

(c) on most days between 4.30am and 5.30am a delivery of bread in plastic trays was made to the Property;

(d) between 3.00pm and 4.00pm taxis entered the service station and parked;

(e) on most weekdays, the canopy lights, bowser lights and illuminated advertising sign were turned off at around 8.30pm. From about 8.30pm the service station attendant packed up the drink bottles in front of the shop and checked that the taxis parked on the service station were locked;

(f) between 8.45pm and 9.00pm the attendant usually stood at the console and carried out paper work;

(g) on numerous occasions Mr Formosa observed people entering the shop between 8.00pm to 9.00pm to purchase goods; and

(h) the light to the shop was usually switched off at around 9.00pm and the shop was locked by the attendant.

16. Mr Formosa stated that at 9.00pm on 30 March 2009, he saw a fuel tanker enter the service station and park for approximately an hour and a half.

17. In an affidavit filed in Court on the day of the hearing, Mr Formosa gave evidence of additional breaches he had observed on the Property of an almost identical nature between 4 June 2009 and 25 July 2009.

18. Sergeant Robert Wood likewise gave evidence similar to that given by Mr Norman and Mr Formosa. In particular, he gave evidence that on 24 January 2009, he witnessed registration plates being swapped over from one taxi cab to another on the Property. He questioned the person engaged in the activity, who told him that the taxi was a ‘stand-by cab’ because the other cab was overheating.

19. On behalf of the respondents, Mr Ramesh Tanwar deposed by way of affidavit that he had read the affidavits of Mr Formosa and Mr Norman and that since being made aware of the facts in those affidavits he had “instructed staff to start their shift at 5.30am and finish at 8.30pm”. Mr Tanwar stated that the half an hour at the start and end of the shift was to be used to open and close the shop. He stated, however, that no “trading” was to take place between 5.30am and 6.00am or between 8.00pm and 8.30pm.

Respondents’ Submissions

20. The respondents’ submissions were essentially two-fold:

(a) first, that the Property was not being used as a taxi changeover base because of the limited number of taxis on the Property, the absence of a ‘base’ and, in any event, the taxis on the Property were ancilliary to the use of the Property as a service station; and

(b) second, that in light of the fact that a development application had now been lodged with the council to modify the hours of operation, and given that the “level of the alleged breaches since these proceedings were commenced have been considerably reduced” – a fact acknowledged by the council – the appropriate course would be to adjourn the proceedings under s 124(3) of the EPAA. This was because, the respondents submitted, they needed more time to be able to comply with the conditions imposed by Commissioner Brown’s judgment.

Consideration and Findings

21. In relation to condition 3A (the taxi changeover base condition), I accept the submission of the council that the presence of the taxi cabs was not ancillary to the use of the Property as a service station. The evidence demonstrated that the cabs were not present on the Property to fill up with petrol or to purchase goods from the shop, but were parked awaiting a driver.

22. While the term “taxi cab changeover base” is not defined in the Development Consent, common sense dictates that an inference be drawn on the available evidence that the Property was being used for this very purpose. For example, multiple taxis were parked on the Property and drivers were seen entering and leaving the Property having either picked up or dropped off cabs, often at times outside the operating hours (sanctioned or otherwise) of the service station.

23. Dealing with the second submission, s 124(3) of the EPAA states:

124 (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:
(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

24. In the exercise of my discretion pursuant to the provision I reject the respondents’ application for an adjournment under s 124(3) of the EPAA. I do so:

(a) first, because even assuming that the modifications sought were granted by the council, this could not remedy the breaches caused by the use of the Property as a taxi changeover base or the out-of-hours deliveries. Thus a breach of the Act would have still occurred and would be likely to continue to occur;

(b) second, in light of the continuing nature of the breaches I would have expected an undertaking by the respondents to cease any breaches while the proceedings were adjourned. None was proffered (see, for example, Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119 at [18]);

(c) third, I am conscious of the fact that the application for modification was lodged only after these proceedings were commenced and in close proximity to the hearing date; and

(d) fourth, the application for modification seeks, in effect, by other means to obtain that which was sought previously from the council and was rejected by both the council and this Court.

25. Section 124(3) is an important provision (see Sahade v The Owners – Strata Plan No 62022 [2006] NSWLEC 770 at [10]) but it is not intended, as the respondents seek to do, to be employed as a device to thwart or avoid compliance with conditions attached to a valid development consent (as to the operation of s 124(3) generally, see Grace v Thomas St Café Pty Limited (No 2) [2008] NSWLEC 179).

26. Accordingly, in light of the evidence of the council’s witnesses and the admissions made by the respondents both at the hearing, in Mr Tanwar’s affidavit and in the course of their correspondence with the council, I have no hesitation in finding that conditions 3, 3A, 3B and 3E and 5 have been breached and continue to be breached by the respondents.

Relief

27. I now turn to deal with the issue of what orders are appropriate to remedy and restrain the breaches I have found above.

28. All relief sought is clearly within the jurisdiction of this Court (see ss 123 and 124 of the EPAA and ss 20-23 of the Land and Environment Court Act 1979).

29. The order that the council seeks is that the respondents, their servants and agents, be restrained from carrying out the development, that is to say, from using the Property except in accordance with the Development Consent. The conditions of the Development Consent are unambiguous and simple in their terms. I find that an injunctive order is appropriate to restrain and remedy the breach of s 76A of the EPAA occasioned by the respondents’ breach of the conditions of the Development Consent.

30. The council seeks that in addition to the Court making this injunctive order, that the Court should make a declaration in terms of the findings it has made above relating to the breaches by the respondents of the conditions.

31. The council submits that such an order is appropriate having regard to the numerous and continuing nature of the breaches. The council also submits that a declaration regarding the respondents’ breach of the Act serves the public interest in ensuring compliance.

32. While the Court has jurisdiction to make the declaration, a question arises as to whether the Court, as a matter of discretion, ought to do so. The Court should make declarations only where some proper and practical purpose is to be served by making them (Great Lakes Council v Lani (2007) 158 LGERA 1 at [16]-[25] and Council of the City of Sydney v Mae [2009] NSWLEC 84 at [29]).

33. In Great Lakes Council v Lani Preston CJ set out the relevant principles applicable in determining whether the making of a declaration is appropriate (see [20]-[25]). Summarised, these are as follows:

(a) where a making of a declaration by itself would not have any practical effect in the circumstances of a case, that is to say, it would not bring about any change in the rights or duties of the parties, the making of a declaration is not appropriate;

(b) a declaration of a breach of a statute is not necessary in order for the Court to have jurisdiction to make other orders including injunctive relief to remedy or restrain breaches of the statute;

(c) a declaration of a breach of statute by itself will not remedy past breaches of the statute nor restrain any future breaches of the statute; and

(d) a declaration or breach of a statute in civil enforcement proceedings must not be used as a substitute for criminal proceedings.

34. In Great Lakes Council v Lani his Honour declined to make the declarations sought. In Lani, the applicant council sought orders to remedy and restrain breaches of the EPAA, the Native Vegetation and Conservation Act 1997 and the National Parks and Wildlife Act 1974. The breaches arose from two episodes of clearing of native vegetation on a public reserve by the respondents. Each of the points of claim was admitted by the respondents at the commencement of the trial. There were no continuing breaches.

35. In Council of the City of Sydney v Mae, by contrast, the applicant council sought declarations and orders against Mr Mae in respect of his development and use of the premises as a boarding house without the necessary development consent. The Court found that Mr Mae had also carried out some significant structural alterations to the premises without consent and had ignored an emergency order under s 121B of the EPAA requiring removal of an external two room structure at the rear of the premises, which was unauthorised building works and had been severely damaged and left in a dangerous condition as a result of a fire.

36. In my view, the facts of Mae are more closely aligned to those in the present proceedings than the facts in Lani.

37. In the present circumstances I find that it is appropriate that I make the declaration sought. I am influenced by the repeated and, in particular, continual nature of the breach of the conditions by the respondents. I repeat as apposite what Preston CJ stated in Lani at [25] (which was adopted by Sheahan J in Mae at [29]), namely, that “a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondents”.

Costs

38. Council seeks an order for its costs. Council has been successful in securing the relief it sought and there being no disentitling conduct on its part, the usual order that costs follow the event applies.

Orders

39. The Court therefore makes the following orders:

(1) a declaration that the first and second respondents have, themselves or by their servants and agents, breached section 76A(1) of the Environmental Planning and Assessment Act 1979 by carrying out development being the use of land Lot 12 Deposited Plan 629250 and known as 281 New Canterbury Road, Lewisham, contrary to conditions 3, 3A, 3B, 3E, and 5 of Development Consent No. 9898 dated 8 May 1985, as modified on 23 January 2009;

(2) an order that the first and second respondents, their servants and agents, be restrained from carrying out development, being the use of the Property except in accordance with the Development Consent;

(3) an order that the first and second respondent pay the applicant’s costs of the proceedings. Such costs are to be paid on a party party basis. The final amount is to be determined by agreement between the parties or assessment according to law;

(4) the applicant shall have liberty to apply on 72 hours notice; and

(5) all exhibits may be returned.

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