Rahman Nominees Pty Limited v Inner West Council

Case •

[2024] NSWLEC 1577

•

25 September 2024

Land and Environment Court


New South Wales

Medium Neutral Citation: Rahman Nominees Pty Limited v Inner West Council [2024] NSWLEC 1577
Hearing dates: 10, 11 July and 15 August 2024.
Date of orders: 25 September 2024
Decision date: 25 September 2024
Jurisdiction:Class 1
Before: Peatman AC
Decision:

Proceedings 2023/244510

The Court orders:

(1) The appeal is upheld.

(2) Development Control Order dated 11 July 2023 issued to the Applicant by Inner West Council pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979, is modified in accordance with Annexure A pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979.

Proceedings 2024/80566

The Court orders:

(1) The appeal is dismissed.

Catchwords:

MODIFICATION APPLICATION – car wash centre

DEMOLITION CONTROL ORDER – modified

Legislation Cited:

Environmental Planning and Assessment Act 1979, Sch 5, ss 4.55, 8.18, 9.34

Land and Environment Court Act 1979, s 17

Uniform Civil Procedure Rules 2005, Div 3, r 12.7

Category:Principal judgment
Parties: Rahman Nominees Pty Limited
ACN 166 900 278 (Applicant)
Inner West Council
ABN 19 488 018 987 (Respondent)
Representation:

Counsel:
J McKelvey (Applicant)
A Galasso SC (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Inner West Council (Respondent)
File Number(s): 2023/244510 and 2024/80566
Publication restriction: No

Judgment

  1. COMMISSIONER: Both proceedings 2023/244510 and 2024/80566 relate to the property known as 412-416 Liverpool Road, Croydon NSW 2132 being the whole of the land in Lot 100 Deposited Plan 1124619 (the Site).

  2. The Site is occupied by an existing carwash facility, which was developed in accordance with Development Consent No DA 10.2006.310 granted by this Court (Court DA Consent).

  3. On 11 July 2023 the Applicant was served with a Development Control Order (DCO), reference No EPA/2023/0048 by Inner West Council (Council) pursuant to s 9.34(1)(a) and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  4. The DCO requires the Applicant to comply with the condition of consent of the Court DA Consent which includes the modifications granted by the Court in modified consent no 2006/310/1 approved 11 December 2008 to relocate a plant room; and modified consent no 2006/310/3 approved on 10 November 2009 to modify the operating hours, by doing the following:

  1. Demolish and remove the sound amplifying equipment that is being used to play music.

  2. Install aluminium framed acoustic glass sliding doors with side and highlight panels to the entry and exits of the MARK V11 Wash Hall Automatic Wash bay.

  3. Install aluminium framed acoustic glass sliding doors with side and highlight panels to the entry and exists of the CK PRO Wash Hall Automatic Wash bay.

  1. The existing carwash facility on the Site is subject to the following operational measures in accordance with its Court DA Consent (as modified):

  1. CCTV for ongoing surveillance of the Site.

  2. An on-site security manager to ensure appropriate patron behaviour during the period of 7:00pm to 10:00pm, Monday to Saturday (being all the days operating until 10:00pm).

  3. The contact details of the on-site Manager made available to the public when they are on duty from 7pm to 10pm, Monday to Saturday (being all the days operating until 10:00pm).

  4. No use of the automatic carwash bays if the fully enclosed automated acoustic rated glass entry and exit doors fail to operate properly or cannot be fully enclosed.

  5. No public address system or sound amplifying equipment.

  6. The entry gate allowing vehicular entry from Liverpool Road is to be closed at 9:45pm on Monday to Saturdays inclusive and at 6:45pm on Sundays and public holidays.

  7. The carwash and vacuuming plants shall be configured so that payments for their operation cannot be made after 9:45pm; on Mondays to Saturdays inclusive and after 6:45pm on Sunday and public holidays.

  8. The operating hours are 7:00am to 10:00pm Monday to Friday, and 7:00am to 7:00pm Sunday and public holidays.

  1. The Applicant filed a Class 1 appeal to the DCO on 1 August 2023 pursuant to s 8.18(1) of the EPA Act, which became proceedings no 2023/244510 (DCO Appeal). The DCO Appeal was filed in accordance with the time provisions in s 8.18(3)(a) of the EPA Act.

  2. On 1 March 2024 the Applicant filed an application for a modification to the Court DA Consent pursuant to s 4.55(8) of the EPA Act (Modification Appeal), being proceeding no 2024/80566. The modification application seeks in summary to extend the hours of consent to operate the carwash to 24 hours 7 days per week, allow for vinyl exit doors on the automatic car wash bays, and no entry doors on those bays at the Site.

  3. Both proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

  4. I note that on 2 April 2024 the Registrar granted the following Orders:

  1. Proceedings nos 2023/244510 and 2024/80566 be heard together.

  2. Evidence in proceedings no 2024/80566 be evidence in proceedings no 2023/244510.

  1. The hearing began with a site view of the Site and surrounding properties. At the site view I heard from six objectors, and I have also perused the objections written by eleven objectors. I viewed where the objectors resided in relation to the Site. The issues raised by the objectors were noise (both machinery, people – loud voices and at times loud arguing, car radios, PA system), security/safety, urinating, and the machinery beginning prior to the vinyl doors closing.

Legislation

Environmental Planning and Assessment Act 1979

4.55   Modification of consents—generally

(cf previous s 96)

…

(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the proposed modification is of minimal environmental impact, and

(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

……

(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

  1.   (Repealed)

(6) Deemed refusals The regulations may make provision for or with respect to the following—

(a)  the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,

(b)  the effect of any such deemed determination on the power of a consent authority to determine any such application,

(c)  the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act.

(6A), (7)    (Repealed)

(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.

8.18   Appeals concerning orders

(cf previous s 121ZK)

(1)  A person who is given a development control order may appeal to the Court against the order.

……

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(4)  On hearing an appeal, the Court may—

(a)  revoke the development control order, or

(b)  modify the development control order, or

(c)  substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d)  find that the development control order is sufficiently complied with, or

(e)  make such order with respect to compliance with the development control order as the Court thinks fit, or

(f)  make such other order with respect to the development control order as the Court thinks fit.

Uniform Civil Procedure Rules 2005

Division 3 Dismissal of proceedings etc for lack of progress

12.7   Dismissal of proceedings etc for want of due despatch

(cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4)

(1)  If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2)  If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

Note—

See rule 42.20 as to the effect of dismissal with respect to costs.

DCO Proceedings

  1. Between day 2 of the hearing on 11 July 2024 and day 3 of the hearing on 15 August 2024 the Applicant lodged Building Information Certificate No BC/2024/0126 with the Council which was granted on 25 July 2024. In relation to the DCO proceedings (No 24/80566), on 15 August 2024 the Council tendered Building Information Certificate No. BC/2024/0126 dated 25 July 2024 (BIC) (Ex 8).

  2. The effect of Ex 8 is that the DCO has been modified by removing requirements (2) and (3) in paragraph 4 above.

  3. Pursuant to s 8.18(4)(b) I have power to modify the DCO. I shall uphold the DCO Appeal and modify the DCO taking into account the BIC and deleting paragraphs (2) and (3) of the DCO.

Modification Proceedings

  1. The Modification appeal commenced on site, as set out in par [10] above. The evidence in Court began on 11 July 2024, and after opening submissions the parties called their town planners, Mr E Miletic for the Council, and Mr P C North for the Applicant.

  2. During the morning of 11 July 2024 the parties continued to negotiate a settlement in this matter, and prior to the luncheon adjournment requested that the town planning experts be excused on the basis that the parties had reached an in principle agreement for settlement. The luncheon adjournment was extended until 2:30pm.

  3. After the luncheon adjournment on 11 July 2024, the parties advised that an in principle agreement had been reached which required the Applicant to lodge a Building Information Certificate with the Council, and the parties to finalise the draft conditions of consent and the plan of management in the Modification appeal.

  4. The parties requested, and I granted, an adjournment of the proceedings until 15 August 2024.

  5. The adjourned hearing recommenced on 15 August 2024 when the Council tendered the BIC which became Ex 8.

  6. The parties advised that the draft conditions of consent to the Modification Appeal had been agreed, but there was an outstanding issue with the proposed plan of management, which is a sub-category to the conditions of consent.

  7. At the parties’ request, I adjourned the proceedings until 10.45am. I noted that only the legal team for the Applicant was in the court room, and I requested Ms McKelvey, counsel for the Applicant to convey to the Applicant:

“…for the just, quick and cheap resolution of proceedings, it’s important to do it as quickly as possible. So would you convey to your client that I’m disappointed he’s not here? For the next time he has proceedings before the court, it is always wise to be here, and I know business is busy, but this is part of his business.” Tcpt 54 31-35

…

“…I will adjourn until a quarter to 11, noting that I will be reserving by 12.15. So, I know that you will tell him, your client, Ms McKelvey, but please tell him from me, if he doesn’t agree, I will be determining what it is.” Tcpt 55 10-13

  1. The hearing recommenced at 11am, when Ms McKelvey advised the Court:

“Commissioner, I’m just waiting for email confirmation, but I understand that my instructions have been withdrawn, as have those of those instructing me.” Tcpt 55 28-30

  1. Mr G Shapiro, the Applicant’s solicitor in both proceedings, advised the Court:

“I am not, Commissioner, it’s myself and Ms McKelvey, all of our instruction have been withdrawn as per a moment ago. I’m just checking my emails.” Tcpt 55 38-40

  1. Mr Galasso, SC for the Council:

“Once that’s confirmed, Commissioner, my application is that the appeals should be dismissed.”

  1. Ms McKelvey:

“Commissioner, I’ve now received written confirmation of the withdrawal of my instructions.” Tcpt 58 40-41

“10.50am, today’s date which is 15 August”. Tcpt 58 45

  1. The email was addressed to Mr Shapiro, and it was sent from Yusuf Rahman, who I am informed is the Director of the Applicant company in both proceedings, and it said:

“As of now, I am terminating you as my lawyers.”

  1. I have delayed writing this judgment for two weeks to allow time for the Applicant in both proceedings to seek alternate legal representation, if they chose to do so. No such notification has been received by the Court.

  2. Post 11am on 15 August 2024 there was no representative of the Applicant, nor the Applicant in court. The Council had moved to have the Modification Appeal dismissed. Without any person being available to prosecute the Applicant’s case in the Modification Appeal, and therefore there was no contradictor to the Council’s request. I have no choice but to dismiss the appeal.

  3. In relation to the Modification Appeal, I shall dismiss the appeal in accordance with Div 3 rule 12.7 of the Uniform Civil Procedure Rules 2005.

  4. In relation to proceedings 2023/244510, the Court Orders:

  1. The appeal is upheld.

  2. Development Control Order dated 11 July 2023 issued to the Applicant by Inner West Council pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979, is modified in accordance with Annexure A pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979.

  1. In relation to proceedings 2024/80566, the Court orders:

  1. The appeal is dismissed.

M Peatman

Acting Commissioner of the Court

244510.23 Annexure A

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Decision last updated: 25 September 2024

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