Randwick City Council v Athens

[2001] NSWLEC 110

Land and Environment Court

of New South Wales

CITATION:	Randwick City Council v Athens & Anor [2001] NSWLEC 110
PARTIES:	APPLICANT Randwick City Council FIRST RESPONDENT Peta Athens SECOND RESPONDENT Athens Holdings Pty Ltd
FILE NUMBER(S):	40097 of 2000
CORAM:	Sheahan J
KEY ISSUES:	Injunctions and Declarations :- prohibited use - backpacker accommodation -discretion - stay of orders - costs
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Randwick LEP 71 Randwick LEP 1998 Randwick PSO 1978
CASES CITED:	ACR Trading Pty Ltd & Anor v Fat-Sel Pty Ltd & Anor (1987) 11 NSWLR 67; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
DATES OF HEARING:	8/12/2000, 29/5/2001-30/5/2001
DATE OF JUDGMENT:	06/01/2001
LEGAL REPRESENTATIVES:	APPLICANT Barrister Mr A J J Thompson Solicitors Bowen & Gerathy FIRST AND SECOND RESPONDENTS Barristers Mr W R Davison SC with Mr McDowell Solicitors Herder & Associates

JUDGMENT:

IN THE LAND AND Matter No: 40097 of 2000
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 1 June 2001

RANDWICK CITY COUNCIL

Applicant

v

PETA ATHENS

First Respondent

ATHENS HOLDINGS PTY LTD

Second Respondent

JUDGMENT

Introduction

1. These are Class 4 proceedings brought by the Council in respect of the use of premises at 40 Coogee Bay Road, Coogee or Randwick, for the purpose of backpackers accommodation.

2. When the matter was first before the court for hearing, on 8 December 2000, I made the following orders by consent:

1. The First and Second Respondents, their servants, agents and assigns remove all structures erected for the purpose of providing beds, platforms and mezzanine accommodation from all rooms within 40 Coogee Bay Road, Coogee pursuant to Order 2 of the Application herein.
2. The First and Second Respondents, their servants, agents or assigns refrain from and be restrained from using Garages 9 and 10 of the premises 40 Coogee Bay Rood, (sic) Coogee for the purposes of habitable rooms pursuant to Order 6 of the Application herein.
3. The First and Second Respondents, their servants, agents or assigns remove the sliding glass doors to Garages 9 and 10 and restore them for the purpose of carparking pursuant to Order 7 of the Application herein.
4. That the First and Second Respondents comply with Consent Orders 1, 2 and 3 above by 31 December 2000.
5. That the First and Second Respondents pay the Applicant’s costs, as agreed or assessed, in relation to Orders 1, 2 and 3 above.

3. The outstanding matters still before the court concern the applicant’s desire to press the following paragraphs of its class 4 application dated 30 June 2000:

1. An order that the First and Second Respondents be restrained from using the premises at 40 Coogee Bay Road, Coogee for the purpose of Backpackers’ Accommodation.
…
3. An order that the Respondents be restrained from using the double carport at 40 Coogee Bay Road, Coogee, other than in accordance with development consent granted by Notice of Determination dated 19 November 1996.
4. An order that the Respondents…