Saggers and Bell v Valtone Pty Limited and the Darling Harbour Authority

[1988] NSWLEC 7

Land and Environment Court

of New South Wales

CITATION:

Saggers and Bell v Valtone Pty Limited and The Darling Harbour Authority [1988] NSWLEC 7

PARTIES:

APPLICANTS
Colin Arthur Saggers and Robert Bell

RESPONDENTS
Valtone Pty Limited and The Darling Harbour Authority

FILE NUMBER(S):

40142 of 1988

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Darling Harbour Authority Act, 1984
Land and Environment Court Act

CASES CITED:

Building Owners and Managers' Association of Australia Limited v. Sydney City Council, 53 L.G.R.A. 54, at 72.

DATES OF HEARING:

DATE OF JUDGMENT:

07/08/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: In this matter Colin Arthur Saggers and Robert Bell make application for declarations and other orders with respect to the lawfulness of a building permit issued pursuant to the Darling Harbour Authority Act, 1984. The applicants are former permit holders of a market known as "Paddy's Market", and which has been the subject of a hearing before Mr Justice Needham in the Supreme Court of New South Wales in its Equity Division, and those proceedings were resolved against the applicants with respect to their rights to continued occupation of the premises for those purposes.

The matter now comes before this Court, exercising its jurisdiction pursuant to s.20 of the Land and Environment Court Act, either to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, or to review or command the exercise of a function conferred or imposed by planning and environmental law. There has been no submission made to me that the Darling Harbour Authority Act 1984 is not an environmental law, and I note it is expressly referred to in section 20(3) of the L.& E. Court Act.

No submissions have been made with respect to the standing of the applicants in these proceedings, but the question has been reserved for further argument on final hearing. I should say at this stage that, with respect to declarations sought as to the exercise of a function by the Authority pursuant to that Act, it appears prima facie to be a matter which can be reviewed at the institution of any person who appears to have a sufficient interest or satisfies the test to be applied by Cripps C.J. in Building Owners and Managers' Association of Australia Limited v. Sydney City Council, 53 L.G.R.A. 54, at 72.

The orders sought relate to a permit which has been issued by the Authority, to carry out works which have been described in Public Works' drawings and a letter of 17th June, 1988 which accompanied the application for the permit. Those works are described as being site establishment, site closure, site investigation, and removal of existing roof sheeting, and further described in a statement of environmental effects as being the preliminary stage of the Studio City development which forms part of the overall development plan for the Darling Harbour Redevelopment Area. In other documents that development has been described as a multi-storey building comprising to a substantial extent office space.

The issue raised in these proceedings by the applicants is that such permit relates to development, and development can only be permitted on this land providing it is authorised pursuant to the provisions of Darling Harbour Development Plan Number One. That plan provides that development of a kind not referred to in Clause 6 is prohibited, and that which is permitted in Clause 6 is development of a kind described in Schedule 1, or of a kind incidental or subsidiary thereto.

Development permitted by Schedule 1 includes, inter alia, commercial facilities and also the construction of office accommodation for use by public authorities.

It is contended by the applicants that the work in the permit is development not incidental to a purpose referred to in Schedule 1, for the reason that it is neither commercial facilities nor for the construction of office accommodation for use by public authorities.

The respondents oppose such submissions and submit that the works as permitted are merely preliminary works, they are not incidental or subsidiary to any purpose at all, and that no application has yet been made for the overall development previously described.

I am satisfied on the evidence that a serious question is raised in this matter as to whether the consent that has been granted is authorised by the provisions of Darling Harbour Development Plan Number One. On the preliminary assessment that I have made I consider that the applicants would have good prospects of success in relation to the construction of that instrument, and the lawfulness of the overall development as proposed for the site.

This question, of course, does not resolve the matter as to whether or not I should make any orders. I am obliged to take into account the balance of convenience and exercise my discretion as to whether or not it is appropriate in the circumstances to restrain any further work on the site.

The respondents point to the delay occasioned by the challenge in the Supreme Court, but I take into account that during those proceedings undertakings were given as to damages, and that there was an order restraining development of the site pending the resolution of the suit.

The matter in issue in this Court, whilst raised and argued, was clearly not a matter that could have been resolved in that Court, but it was a matter brought to the attention of all persons by the applicants in those proceedings.

I consider that the applicants have acted promptly after the determination of the Supreme Court matter to bring this matter before this Court. I also take into account the fact that the applicants are prepared to continue the same undertaking as to damages and the same security with respect to such undertakings.

I am conscious of the continued costs incurred by the first respondent by further delay, but in all the circumstances I consider that if I afford the parties an early hearing on a final basis of this application, and that the matter be returnable for hearing before me next Wednesday, 13th July 1988, the balance of convenience means that I should exercise my discretion in favour of the applicants and make the orders sought, and I do so.

I order:

1. That the application proceed by way of affidavit evidence.

2. The applicants file any further affidavits no later than 12 noon on Monday, 11th July.

3. The respondents file any affidavits by noon on Tuesday, 12th July.

4. Direct that the parties give written notice as to any objection that will be taken to any parts of the affidavits in the proceedings.

5. That the first respondent be restrained by itself, its servants or agents from carrying out any work upon or in the vicinity of the site mentioned in the application, except pursuant to a fresh valid permit issued by the second respondent for a purpose authorised by the Darling Harbour Development Plan Number One.

6. Costs reserved.