Penrith City Council v Margolin

[1989] NSWLEC 194

Land and Environment Court

of New South Wales

CITATION:

Penrith City Council v Margolin & Ors [1989] NSWLEC 194

PARTIES:

APPLICANT
Penrith City Council

FIRST RESPONDENT
E. Margolin

SECOND RESPONDENT
C. Margolin

THIRD RESPONDENT
Annwrack Pty Ltd

FILE NUMBER(S):

40221 of 1988

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Envionmental Planning and Assessment Act

CASES CITED:

Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING:

DATE OF JUDGMENT:

05/12/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This is a motion to vacate dates for hearing of an application in Class 4 of this Court's jurisdiction, for declarations and other orders concerning the alleged use of premises at Mulgoa in breach of the provisions of an environmental planning instrument.

The use of the premises has a long and notorious history, and the unauthorised use of the premises is not denied by the claimant in this Motion. In fact, the claimant relies upon the long history of the use and Council's awareness of that use as a ground for orders that it seeks.

Whilst it is denied, I believe that it is well established that the Council has been aware, probably before 1986, but certainly since 1986, of the nature and extent of the use of the subject premises for purposes which are now the subject of a development application which has been made to the Council.

That application was made following the making of an environmental planning instrument which made the subject purposes permissible with the consent of Council. However, the development application made provision for works to be carried out on part of an access corridor, which, though the applicant had rights of access over the land, was not owned by the applicant. Council apparently took the point that such development application was in breach of s.77 of the Environmental Planning and Assessment Act, 1979 ("EP&A Act"), and therefore Council claimed it had no jurisdiction to deal with such application.

The applicant for development consent took legal advice and apparently for more abundant precaution it was decided to institute proceedings in the Equity Division of the Supreme Court to obtain the necessary owner's consent for the works to be carried out, and to the application made to the Council for development consent. Those proceedings were finally successfully concluded in April, 1989.

The Class 4 application which is the subject of this motion, was made in September, 1988. The matter has been mentioned on a large number of occasions and there has been a lot of correspondence between the parties. However, at no time until today has any application been made to the Court for interim orders pending the final determination of that application. I think it is of significance that, upon the determination of the proceedings in the Equity Division, the solicitor for the claimant requested Council to determine the said development application within 14 days. To date there has been no determination of that application by Council.

As an alternative, it was suggested by the solicitor for the Council that an appeal be lodged with respect to the deemed refusal of that development application, and that the dates for hearing for the Class 4 matter be used for that appeal. The claimant opposed that course of action because of what it perceives as the shortness of time, the lack of appreciation of the issues to be argued, and the inability to prepare and exchange expert reports with respect to such an appeal.

No appeal has been lodged in respect to Council's deemed refusal of the development application. Notwithstanding the long history of the matter and Council's awareness of the use of the premises, I think I would not have been persuaded to vacate the date for hearing without making interlocutory orders with respect to the unauthorised use of the premises. There appears to me to be a clear and continuing deliberate breach of the provisions of the relevant environmental planning instrument. However, important undertakings have now been given to the Court by Senior Counsel for both parties.

I note that Senior Counsel for the claimant gives an undertaking to the Court that his client will forthwith lodge a development appeal in Class 1 of the Court's jurisdiction against the deemed refusal of the said development application. He further undertakes to seek expedition of that appeal and, if granted, to diligently prosecute the appeal. He undertakes, on behalf of his client, which is represented by one of its Directors in Court today, that it will forthwith cease to use the subject premises for the unauthorised purposes in the event of the development consent being refused by this Court on the determination of the appeal.

For that purpose, Senior Counsel for the Council undertakes to the Court that there will be no challenge to the competence of any appeal that is lodged with respect to the deemed refusal of the application.

The respondents make an offer to the Court that if the hearing dates are vacated, an order should be made that costs thrown away by the applicant Council should be paid by the respondents as a consequence of the lateness of this application.

This motion is consistent with a Practice Note which deals with the order of the hearing of applications in different jurisdictions of this Court, but that Note, in my opinion, does not remove the obligation to determine each case on its merits.

If an appeal is lodged and the hearing expedited, I am satisfied that the determination of the Class 4 matter should be deferred. I am conscious of my duty to enforce the provisions of the public law, and the seriousness of the allegations made by the Council in the documents filed in support of the application in Class 4. However, the use has continued for a long time to the knowledge of the Council and I am satisfied on the undertakings that have been given by Senior Counsel for the respondents that, in the circumstances, if I made orders restraining the use of the premises pending the determination of the proposed appeal, the hardship to the respondents would exceed the appropriateness of enforcing the public law at this time (see Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335). Therefore I am persuaded that I should make the orders sought by the claimant. I note the undertakings given by Senior Counsel for both parties and I vacate the hearing dates for Matter No.40221 of 1988 on 22nd to 26th May

, 1989, and order the claimaint respondents to pay the costs of the applicant thrown away by such order and the costs of this motion.

This matter is stood over for further mention before me on Friday, 19th May, 1989 and if an appeal has been lodged I will consider an application for expedition.