Sutherland Shire Council v Australian Natural Food Holdings Pty Limited

[2001] NSWLEC 189

Land and Environment Court

of New South Wales

CITATION:	Sutherland Shire Council v Australian Natural Food Holdings Pty Limited & Anor. [2001] NSWLEC 189
PARTIES:	APPLICANT: Sutherland Shire Council RESPONDENTS: Australian Natural Food Holdings Pty Limited & Anor.
FILE NUMBER(S):	40078 of 2000
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- Injunctions - enforcement of breach of planning law - Respondent obtains development consent and modification approval rendering use complained of no longer unlawful - Court accepts Respondent undertaking to comply with new planning consent regime-Proceedings dismissed-costs order (partial) in favour of Council.
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	27/11/00-29/11/00, 04/12/00, 07/02/01, 02/05/01, 13/06/01
EX TEMPORE JUDGMENT DATE :	06/13/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr N Newport, Barrister SOLICITORS Abbott Tout RESPONDENT: Mr M Craig QC SOLICITORS Cutler Hughes and Harris

JUDGMENT:

IN THE LAND AND

Matter No. 40078 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

13 June 2001

SUTHERLAND SHIRE COUNCIL

Applicant

v

AUSTRALIAN NATURAL FOOD HOLDINGS PTY LTD & ANOR.

Respondent

JUDGMENT

Bignold J:

1. These Class 4 proceedings were, by consent, heard together with two related Class 1 proceedings, it being common ground that if the related Class 1 proceedings (Nos 10967 and 10868 of 2000) ultimately be successful (and the company thereby obtain (i) modification of its existing development consent; and (ii) further development consent for use of another building within the industrial complex) the activities, the subject of complaint and enforcement action in the Class 4 proceedings would no longer be in breach of relevant planning laws.

2. Judgment now having been just delivered in those Class 1 proceedings (resulting in the upholding of the relevant appeals), essentially in accordance with the draft Short Minutes proffered by the Company, the Company now invites me to similarly determine the present Class 4 proceedings in accordance with the draft Short Minutes it has proffered.

3. In the Class 4 proceedings, the draft Short Minutes prepared on behalf of the Company, contemplate the Court receiving and accepting an undertaking by the Company, So Natural Foods, that it will comply with and observe the conditions of the two relevant development consents, now governing the operation of the Company’s factory and the warehouse unit at the subject premises, in accordance with the conditions of those consents, including the conditions introduced by the modification approval that I have just granted in the related proceedings

4. In my opinion, what has been proffered by the Company provides an entirely satisfactory outcome to the Class 4 proceedings in the light of the outcome in the two related Class 1 proceedings. The proffering of the undertaking, and the Court’s acceptance of it, secures an additional method of enforcement of the current planning regime, which the conditions imposed upon the modification approval and the further development consent have now put in place.

5. It is not usual for a Court hearing, concurrently, development appeals and related Class 4 enforcement proceedings, to require of a developer who has succeeded in the development appeals, the giving of undertakings, and I am conscious of the fact that the developer here, having obtained the approval from the Court for both the modification application and the development application would, in the ordinary course of affairs and by convention, be expected to comply with those conditions of consent (and I have no doubt that the Company will comply) without the necessity for legal reinforcement of that legal obligation.

6. How is it then that the Court not only accepts the undertaking but expects the undertaking to be proffered? In a word, for further assurance, given, as I said in the course of the hearing of the three proceedings, the acute sensitivity and sensibility of residential development coexisting cheek by jowl with adjacent industrial premises operating on a 24 hour basis. It was in these circumstances that the Company’s proffer of the undertaking (which will be capable of being relieved if, after a period of two years, the Company’s performance is satisfactory) was sought and accepted by the Court.

7. In accordance with the new planning regime now in place, the Company will have the opportunity at the end of the two year period, to apply to the Court to be relieved of the undertaking and it can reasonably be expected that if such an application is made and the Company’s performance is satisfactory (a matter that will be attested by the monitoring and record keeping obligations imposed by the relevant conditions of consents that I have granted) the Court will favourably exercise its discretion on that occasion. But in the meanwhile I do accept the undertaking in the good spirit in which it is offered, as both an adequate and responsible alternative proffered by the Company to the suggestion that I had earlier made of a solution in the form of a provisional or conditional or time limited trial consent. It is in these circumstances that I find the Respondent’s proffer of the undertaking to be appropriate and responsible, and I accept it on behalf of the Court.

8. The acceptance of the undertaking, in my opinion, renders entirely unnecessary, the grant of any injunctive relief such as the Council had been seeking in its Class 4 Application, and although the Council has proffered its own Draft Short Minutes of Order in these proceedings which contemplate the grant of appropriate injunctions, I think the Council, through Mr Newport today, has recognised that the Company’s undertaking (proffered and accepted by the Court) achieves very substantially the same end and objective.

9. The only remaining dispute between the parties is that concerning costs. The Council seeks an order for costs in the Class 4 proceedings, and the Company submits that properly analysed, the Court would exercise its discretion on costs by leaving each party to pay its own costs. The question is not readily analysed in accordance with prevailing principles for the exercise of costs discretion without careful reference to the course of, and outcome in, the related class 1 proceedings.

10. For example it would be facile to conclude that the fact that the Company offers the undertaking is tantamount to defeat by the Company in these Class 4 proceedings, or putting it positively, is tantamount to victory for the Council in the proceedings. Plainly, it is not. For the reasons that I have earlier given, the rationale for the undertaking and the acceptance of it by the Court, is part of the structured and comprehensively crafted outcome of the development appeal and modification application appeal. Accordingly, it would be not correct, in my view, to regard the existence of the undertaking proffered and accepted in the present, case as being tantamount to vindicating the Council in bringing the Class 4 proceedings. Rather, and in the particular circumstances, the undertaking is entirely an emanation of the planning appeals themselves and not of the enforcement proceedings.

11. Another difficulty with the Council’s application for costs in the proceedings generally, which, I think was fairly acknowledged by Mr Newport on behalf of the Council, is the fact that the parties, after all three proceedings were concurrently opened on the first day, pursued with dedicated rigour, the proper outcome in the planning appeals, in quest of which (as I have said, in my judgment in the related Class 1 proceedings) the Court was considerably assisted by the parties’ co-operativeness, and especially the co-operativeness of their retained acoustical experts.

12. Since the Court has not made any costs orders in the planning appeals, it is very difficult to see how the Council’s application for costs generally in the Class 4 proceedings can be meaningfully separated out from the costs incurred in the development appeal proceedings and the modification appeal proceedings.

13. Ultimately, I have come to the conclusion that the Council should receive only a limited order for costs in the Class 4 proceedings, reflecting the fact that it incurred costs in bringing the proceedings. The circumstances surrounding the bringing of the proceedings has been satisfactorily explained in the evidence, and I can readily see why the Council brought the proceedings when they did, acknowledging, however, that the Council had relevantly known that the Company had been manufacturing, or operating for 24 hours a day for many, many years without, until recent times, any enforcement action initiated by the Council to insist upon compliance with the conditions of the then applicable development consent.

14. However, the Company’s unsuccessful appeal before Commissioner Brown (reflected in his decision in May of 2000) clearly brought the matter of the hours of operation of the Respondent’s factory to a head, in the sense that the Council, as it were, was at that point entitled, if not compelled, to regard the matter as now calling for some effective solution, however belated it might be. That is the basis upon which I would ultimately analyse the nature of the Class 4 proceedings, and the reasonable justification for the Council in commencing the proceedings.

15. As I said in the course of argument, I think the fair and reasonable outcome of the Class 4 proceedings is to regard the Council as having been justified in bringing the proceedings but limiting any costs order to their costs incurred in commencing the proceedings, including the costs involved on the opening day of the hearing when all three related proceedings were opened concurrently. Accordingly, the costs should be limited to those incurred in the Class 4 proceedings, up to and including the commencing day of the hearing, namely 27 November 2000. However, the costs so ordered should not include the costs involved in the preparation of affidavits by Mr Atkin, the acoustical expert retained by the Council, because I am of the opinion that those costs were costs truly and rightfully incurred in the development appeal and the modification appeal (in which his evidence was chiefly deployed) for which proceedings there is no order for costs.

16. In these circumstances, in the Class 4 proceedings, I accept the undertaking proffered by the Company, as set out in paragraph 1 of the Short Minutes. I reserve liberty to apply to be relieved of the undertaking as set out in paragraph 2. I make the order in paragraph 3, that is the application is dismissed and in lieu of the suggestion that there be no order for costs, I order that the Respondent pay the Applicant’s costs up to and including 27 November 2000 but excluding costs incurred in the preparation of affidavits by Council’s acoustical expert. These outcomes are reflected in the Short Minutes, which I have adopted as revised.