Technotron Investments Pty Ltd v City of Bunbury
[1999] WASC 47
•28 MAY 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TECHNOTRON INVESTMENTS PTY LTD -v- CITY OF BUNBURY [1999] WASC 47
CORAM: McKECHNIE J
HEARD: 16 APRIL 1999
DELIVERED : 16 APRIL 1999
PUBLISHED : 28 MAY 1999
FILE NO/S: CIV 1238 of 1999
BETWEEN: TECHNOTRON INVESTMENTS PTY LTD
Plaintiff
AND
CITY OF BUNBURY
Defendant
Catchwords:
Interlocutory injunction - Local government - Meetings of council - Rules of natural justice - Whether serious issue to be tried - Turns on own facts
Legislation:
Town Planning and Development Act 1928
Result:
Interlocutory injunction refused
Representation:
Counsel:
Plaintiff: Mr L A Stein
Defendant: Mr D W McLeod
Solicitors:
Plaintiff: Talbot & Olivier
Defendant: McLeod & Co
Case(s) referred to in judgment(s):
Ainsworth v the Criminal Justice Commission (1992) 175 CLR 564
South Australia v O'Dea 163 CLR 378
Case(s) also cited:
Attorney General (NSW) v Quin (1990) 64 ALJR 327
Castlemaine Tooheys Ltd v South Australia (1985) 60 ALJR 679
Ex Parte Peko Explorations Ltd, unreported; FCt SCt of WA; Library No 970613; 15 November 1997
Gavranich v Shire of Wanneroo and WAPC, unreported; SCt of WA; Library No 980522; 1 September 1998
I W v City of Perth [1997] 146 ALR 696
McKECHNIE J : This is an interlocutory application and in view of some urgency in the matter, I thought it best to deliver reasons, however inelegantly expressed, now. I have read the cases referred to by both counsel and have borne in mind the principles contained in those cases, principles which are not in dispute.
I do not propose to make specific reference to the authorities, because in my view, this is essentially a factual question.
The plaintiff seeks an interlocutory injunction restraining the defendant from taking action pursuant to a notice served on it under the provision of the City of Bunbury Town Planning Scheme. The plaintiff is the owner of licensed premises which are situate in land zoned for a restaurant. The City asserts that the premises are used as a tavern and not in accordance with the zoning. The matter came before council and committees on several occasions, which are set out in the plaintiff's very useful chronology.
The relevant meetings of this application are those of the council committee on 9 February 1999 and on 16 February 1999.
Meeting 9 February 1999
"8. RECEPTION OF MINUTES OR REPORTS OR RECOMMENDATIONS OF COMMITTEE AS FOLLOWS
8.1Compliance With Town Planning Scheme No. 6 – Lot 8 Ocean Drive, Bunbury – Hungry Hollow Tavern – (MP) – P7046
His Worship the Mayor disclosed a financial interest in this item as he owns property and lives very close to the premises in question. He left the Chamber at 5.31pm, did not take part in discussion and refrained from voting.
Cr Wenn disclosed a financial interest in this item as he lives in the same street. He left the Chamber at 5.31pm, did not take part in discussion and refrained from voting.
The Deputy Presiding Officer Cr Dean assumed the Chair at this point in proceedings.
Background
Council previously considered this matter at its meeting held on 19 January 1999 and resolved as follows:
Council Decision: Moved Cr Hill Seconded Cr Comito
(7/99) In relation to the Hungry Hollow Tavern:
a)The item be referred back to Committee, and;
b)Council seek its own legal advice.
CARRIED
In response to Council's resolution a legal opinion was sought from Solicitors McLeod & Co which is attached to the Council Committee Agenda at Appendix 'CC.01'. A copy of the legal opinion has already been circulated to all Councillors under separate cover. A copy of Council's previous minutes of its meeting held on 19 January 1999 is attached to the Council Committee Agenda at Appendix 'CC.02' for Council's information.
Planning Comments
1.The legal opinion clearly states that the City of Bunbury cannot avoid its obligation to ensure that the Hungry Hollow Tavern operates in accordance with provisions of Town Planning Scheme No. 6.
2.Council should note that the Hungry Hollow Tavern has not been granted a planning approval to operate a tavern on Lot 8 Ocean Drive. In this respect the tavern is operating in breach of Council's Town Planning Scheme No. 6.
3.In order for Council to avoid legal proceedings, it is prudent for Council to now proceed with the issue of a notice against the landowners of the Hungry Hollow Tavern to comply with the provision of Council's Scheme. The notice shall be issued in accordance with Clause 9.3 of Town Planning Scheme No.6.
In light of the comment received from Mr D McLeod (Solicitor) and the points raised above it is recommended that Council support the issue of a notice against the owners of the Hungry Hollow Tavern to require the premises to operate in accordance with Council's Scheme.
Mr Dave Gardner, representing the Hungry Hollow Tavern, spoke to the meeting and requested that the item be deferred to the next Council Committee Meeting to enable them to seek legal advice
EXECUTIVE RECOMMENDATION
a)Council serve a notice on the owners of the Hungry Hollow Tavern (Lot 8 Ocean Drive) in accordance with Clauses 9.3 and 9.4 of Council's Town Planning Scheme No. 6 advising that the Tavern component of the restaurant activity shall only operate in accordance with the provisions of Council's Scheme as an incidental and ancillary activity (20% of the total floor area).
b)For the purposes of Clause 9.4(b) Council specify a period of 28 days within which compliance with the provision of the Scheme shall be met.
c)Following the completion of the notice period, this matter be referred back to Council for further consideration.
Committee Recommendation: Moved Cr Hill Seconded Cr Dillon
The item be referred to the next Council Committee Meeting
CARRIED
Meeting 16 February 1999
"10.2Compliance With Town Planning Scheme No. 6 - Lot 8 Ocean Drive, Bunbury - - Hungry Hollow Tavern - (MP) - P7046
Background
Council previously considered this matter at its meeting held on 19 January 1999 and resolved as follows:
Council Decision: Moved Cr Hill Seconded Cr Comito
(7/99) In relation to the Hungry Hollow Tavern:
a)The item be referred back to Committee, and;
b)Council seek its own legal advice.
CARRIED
In response to Council's resolution a legal opinion was sought from Solicitors McLeod & Co which is attached to the Council Committee Agenda at Appendix 'CC.O1'. A copy of the legal opinion has already been circulated to all Councillors under separate cover. A copy of Council's previous minutes of its meeting held on 19 January 1999 is attached to the Council Committee Agenda at Appendix 'CC.02' for Council's information.
Planning Comments
1.The legal opinion clearly states that the City of Bunbury cannot avoid its obligation to ensure that the Hungry Hollow Tavern operates in accordance with provisions of Town Planning Scheme No. 6.
2.Council should note that the Hungry Hollow Tavern has not been granted a planning approval to operate a tavern on Lot 8 Ocean Drive. In this respect the tavern is operating in breach of Council's Town Planning Scheme No. 6.
3.In order for Council to avoid legal proceedings, it is prudent for Council to now proceed with the issue of a notice against the landowners of the Hungry Hollow Tavern to comply with the provision of Council's Scheme. The notice shall be issued in accordance with Clause 9.3 of Town Planning Scheme No. 6.
In light of the comment received from Mr D McLeod (Solicitor) and the points raised above it is recommended that Council support the issue of a notice against the owners of the Hungry Hollow Tavern to require the premises to operate in accordance with Council's Scheme.
At the Council Committee Meeting:
Mr Dave Gardner, representing the Hungry Hollow Tavern, spoke to the meeting and requested that the item be deferred to the next Council Committee Meeting to enable them to seek legal advice
EXECUTIVE RECOMMENDATION
a)Council serve a notice on the owners of the Hungry Hollow Tavern (Lot 8 Ocean Drive) in accordance with Clauses 9.3 and 9.4 of Council's Town Planing Scheme No. 6 advising that the Tavern component of the restaurant activity shall only operate in accordance with the provisions of Council's Scheme as an incidental and ancillary activity (20% of the total floor area).
b)For the purposes of Clause 9.4(b) Council specify a period of 28 days within which compliance with the provision of the Scheme shall be met.
c)Following the completion of the notice period, this matter be referred back to Council for further consideration.
COMMITTEE RECOMMENDATION:
The item be referred to the next Council Committee Meeting.
Note: In accordance with Council Policy, the reason for the variation to the Executive Recommendation is stated as follows: 'To allow the Hungry Hollow Tavern the opportunity of obtaining legal advice when its solicitor returns from the eastern states.'
At the Council Meeting, Cr Wenn disclosed a financial interest as he lives in the same street as the subject property. He left the Meeting Chamber at 7.17pm for the duration of discussion and the vote on this item.
At the Council Meeting, Cr Jeffree disclosed a financial interest as he is a Licensee and is associated with companies that have three licences. He left the Meeting Chamber at 7.17pm for the duration of discussion and the vote on this item.
At the Council Meeting, His Worship the Mayor, Mr Castrilli, disclosed a financial interest as he owns property and lives very close to the property in question. He left the Meeting Chamber at 7.17pm for the duration of discussion and the vote on this item.
The Deputy Mayor, Cr Judy Jones, assumed the Chair during the Mayor's absence.
NOTE:
1.Prior to discussion of the Committee Recommendation (shown below as the 'Original Motion 1') the Chief Executive Officer addressed Council and advised the members that a decision is required. Informal advice has been received that a Writ of Mandamus will be issued to Council.
2.During his concluding remarks in relation to the Committee Recommendation, Cr Comito stated the words 'they are going to lose it'. At the suggestion of the Chairman, he subsequently retracted these words. The Chairman requested that the retraction be noted in the minutes.
Original Motion 1: Moved Cr Hill Seconded Cr Dillon
The item be referred to the next Council Committee Meeting.
After considerable discussion had ensued in relation to the Original Motion above, some remarks were made by Cr Major prompting the following Procedural Motion. In accordance with Council's Standing Orders, no discussion was entered into and the Chairman put the Motion to Council immediately:
Council Decision: Moved Cr Dean Seconded Cr Hill
(44/99) The Councillor no longer be heard.
CARRIED
5 votes 'For' / 4 Votes 'Against'
Cr Major resumed his seat and in accordance with Standing Order 15.7, refrained from debate on any further substantive Motions or Amendments moved in relation to this item.
The Chairman then called for any further speakers on the Original Motion, before putting the Motion to the vote as follows:
Original Motion: Moved Cr Hill Seconded Cr Dillon
The item be referred to the next Council Committee Meeting.
LOST
4 votes 'For' / 5 votes 'Against'
A request was made for the Votes to be recorded, as follows:
For:Crs Dillon, Comito, Hill and Kearsley
Against: Crs Dean, Major, Nicholson, Jones and Bauer
The Executive Recommendation contained in the report from the Council Committee Meeting of 9 February 1999, was then put as Original Motion 2 as follows:
Original Motion 2: Moved Cr Nicholson Seconded Cr Major
a)Council serve a notice on the owners of the Hungry Hollow Tavern (Lot 8 Ocean Drive) in accordance with Clauses 9.3 and 9.4 of Council's Town Planing Scheme No. 6 advising that the Tavern component of the restaurant activity shall only operate in accordance with the provisions of Council's Scheme as an incidental and ancillary activity (20% of the total floor area).
b)For the purposes of Clause 9.4(b) Council specify a period of 28 days within which compliance with the provision of the Scheme shall be met.
c)Following the completion of the notice period, this matter be referred back to Council for further consideration.
Amendment: Moved Cr Bauer
Part (b) be amended to specify a period of '90 days' not 28 days.
The Motion lapsed for want of a seconder.
Amendment: Moved Cr Hill Seconded Cr Comito
The meeting adjourn for a period of fifteen minutes to allow Councillors to discuss this matter in an informal setting.
LOST
4 Votes 'For' / 5 Votes 'Against'
After more discussion, the Original Motion 2 was then put to the vote as follows:
Council Decision: Moved Cr Nicholson Seconded Cr Major
(45/99)
a)Council serve a notice on the owners of the Hungry Hollow Tavern (Lot 8 Ocean Drive) in accordance with Clauses 9.3 and 9.4 of Council's Town Planning Scheme No. 6 advising that the Tavern component of the restaurant activity shall only operate in accordance with the provisions of Council's Scheme as an incidental and ancillary activity (20% of the total floor area).
b)For the purposes of Clause 9.4(b) Council specify a period of 28 days within which compliance with the provision of the Scheme shall be met.
c)Following the completion of the notice period, this matter be referred back to Council for further consideration.
CARRIED
6 Votes 'For' / 3 'Votes' Against
A request was made to record the votes as follows:
For:Crs Jones, Major, Bauer, Dean, Comito and Nicholson
Against:Crs Kearsley, Hill and Dillon
At this point in proceedings, a further Motion which had been foreshadowed during debate earlier in the meeting, was put as follows:
Motion: Moved Cr Dean Seconded Cr Major
The Bunbury City Council invite the owners to seek the proper rezoning of this area specific for tavern use.
LOST
4 Votes 'For' / 5 'Votes' Against
His Worship the Mayor, Cr Wenn and Cr Jeffree returned to the Meeting Chamber at this point in proceedings (8.07pm).
The Mayor resumed the Chair."
The plaintiff says that the meeting of 9 February 1999 gave rise to a legitimate expectation that council would defer the hearing of the matter until his solicitor, who was away in Melbourne, had returned and given him legal advice. Now, that seems also to be the expectation of the solicitors in a letter to council.
Alternatively, it is asserted that the conduct of the meeting was such that there was an implied promise the plaintiff would be heard and that council should be held to its promise.
The first issue is whether the committee meetings gave rise to a legitimate expectation in the plaintiff or constituted a promise, express or implied, that it would hear him before the issue of a notice.
In my opinion, the only legitimate expectation to which the committee meeting of 9 February gave rise was an expectation that the council would consider the recommendation of the committee.
It is clear from the minutes of 16 February 1999 that the recommendation of the committee received very close attention. In the end, it was not followed. It is significant that the plaintiff's representative, Mr Gardiner, was aware that the council did not always follow the recommendations of its committee. He had attended meetings where this had occurred. The committee did not have delegated authority and consequently it did not have power to bind the council.
The plaintiff relies in part on what was said in debate. In my opinion, nothing in the circumstances of the meetings gave rise to a legitimate expectation (within the meaning of that expression in the cases) that Mr Gardiner, on behalf of the plaintiff, would be heard before the notice, nor did what occurred constitute a promise, express or implied. In my view, the plaintiff has established no serious issue to be tried on this question to the extent necessary to ground an injunction.
However, in case I am wrong on this issue, I propose next to consider the notice and the legal requirements for that notice.
Notice of contravention
The notice dated 24 February 1999 is in the following terms:
"Carrying On Of Unlawful Tavern Use (Hungry Hollow Tavern) - Lot 8 (135) Ocean Drive, Bunbury
You are the person indicated in the Liquor Licence for the Hungry Hollow Tavern as the Manager of that business.
Technotron Investments Pty Ltd is the owner of the land at Lot 8, 135 Ocean Drive, Bunbury and licensee of the Hungry Hollow Tavern. It is apparent to the Council that the land use of 'tavern' is being carried on at that address, operating under the name 'Hungry Hollow Tavern'.
Regardless of whether or not a liquor licence has been validly issued in respect of the tavern use on Lot 8, it is also necessary for the land use to comply with the provisions of the City of Bunbury Town Planning Scheme No. 6.
Please note that a tavern is a use which is not permitted on Lot 8. Under the First Schedule of TPS 6, the permitted use on Lot 8 is 'restaurant'. While the City was prepared to allow the restaurant to operate with a liquor licence in respect of portion of the premises, no approval has been given, nor could approval be given under TPS 6 for the tavern use, and the use of Lot 8 for that purpose amounts to a breach of the provisions of TPS 6.
It should be understood that the contravention of Town Planning Scheme No. 6 amounts to an offence under s 10(4)(a)(I), and most likely also the same circumstances would amount to an offence under s 10(4)(a)(ii) of the Town Planning and Development Act 1928. The penalty for an offence under s 10(4)(a) is a maximum of $50,000, and a further penalty of $5,000 per day may be imposed in respect of a continuing offence.
It is clear that the use of Lot 8 for a tavern is a continuing offence, and you are requested to take notice of the fact that if the City takes action in respect of the breach of Town Planning Scheme No. 6 by reason of the tavern use, the City will allege a continuing offence and will seek a daily penalty.
It is necessary that the use of the land for a tavern cease forthwith. The premises may only be used in accordance with the planning approval issued by the Council on 30 July 1998 (DA86/98), copy enclosed, and if the tavern use is not discontinued at the expiration of 28 days from the date of this letter, a Complaint may be issued for an offence under s 10(4)(a) as indicated above, without further notice.
A similar notice will be given to the Owner/Licensee of the premises, and it should be understood that you as well as Technotron Investments Pty Ltd as the owner and licensee, are responsible to ensure that the unlawful tavern use is discontinued in accordance with the notices given."
Counsel for the plaintiff initially argued that the notice was a first step under cl 9(3) of the Town Planning Scheme to lead to a prosecution. In reply, he recast the submission somewhat, arguing that it may not have been a necessary step, but that it was an intended step by council. I do not accept the submission. In my opinion, council was free to commence prosecution, whether or not notice was issued. The notice is in no way a condition precedent to a prosecution or a matter of proof within a prosecution.
That is not to say that the notice has little importance; far from it. It is plainly sensible for councils to give a person an opportunity to rectify a zoning breach in the use of premises by issuing them a warning. When a warning is given, there may well be a legitimate expectation created that no prosecution will be commenced within the time stipulated in the notice.
However, it is not a necessary step in the process and of itself cannot affect rights. This is so, even if it is the intention and practice of council to issue such a notice.
Such a step, because it does not affect rights, will not normally attach duties of procedural fairness when in the overall scheme, procedural fairness will be afforded at the hearing of the prosecution. That last statement is not intended to state more liberally the test as stated in Ainsworth v the Criminal Justice Commission (1992) 175 CLR 564 at 576-577 or in South Australia v O'Dea 163 CLR 378 at 389. In my view, the notice issued was not required by clause 9(3) of the Town Planning Scheme. I note that council has now ratified the notice as issued and I refer to and will incorporate the minutes of the meeting of 30 March.
Meeting 30 March 1999
"Minutes - Council Meeting
10.6HUNGRY HOLLOW TAVERN ‑ NOTICE OF CONTRAVENTION LOT 8 (135) OCEAN DRIVE, BUNBURY (CEO) - - P7046
Council, at its meeting held on 16 March 1999, resolved as follows:
Council Decision: Moved Cr Hill Seconded Cr Major
This matter be referred back to Council Committee for further consideration.
CARRIED
6 Votes 'For' /3 'Against'
Crs Kearsley, Comito, Dillon, Hill, Major and Dean voted for the motion and Crs Nicholson, Bauer and Jones voted Against the motion
The following agenda item is now resubmitted for Council's consideration.
At its meeting held on 16 February 1999 Council resolved to issue a Notice pursuant to clauses 9.3 and 9.4 of Town Planning Scheme No. 6 against the owners of Hungry Hollow Tavern.
Clauses 9.3 and 9.4 of Scheme No. 6 relate to sections 10(1) and 10(3) of the Town Planning and Development Act 1928 ('the Planning Act'). Advice from solicitors McLeod & Co was that the Notice provisions in clauses 9.3 and 9.4, related as they are to the enforcement powers in sections 10(1) and 10(3) of the Planning Act, are not at all appropriate as a means of enforcement in a case of unlawful use. They may be more appropriate in a case involving a building or other work carried out in contravention of Scheme No. 6 or in a situation where work needs to be carried out to comply with the Scheme. That enforcement method is not appropriate where the essence of the contravention is the use of land. Consequently, a Notice pursuant to clauses 9.3 and 9.4 of Scheme No. 6 has not been issued.
Because of the Council's concern about the contravention, a Notice of Contravention was issued for the purpose of drawing attention of the landowner and the occupier of the Hungry Hollow Tavern to the fact that the operation of the premises as a tavern involves a contravention of Scheme No. 6, and therefore an offence under section 10(4) of the Planning Act, in respect of which action may be taken in the Court of Petty Sessions and result in the imposition of a penalty in the maximum sum of $50,000, with a possible maximum daily penalty of $5,000 for each day the offence continues. The Chief Executive Officer approved the issuing of the Notice of Contravention as this is the intent of the decision of Council on 16 February 1999. Failure to comply with the Notice of Contravention may incur prosecution action, and that may be a matter for future decision by the Council after the Notice has expired.
To summarise therefore:
a)by reason of the problems of enforcing a Notice under clauses 9.3 and 9.4 in the circumstances of the present case, such a Notice has not been issued;
b)the Notice of Contravention issued was of a quite different nature, giving warning of the contravention and the possible consequences if prosecution action is taken;
c)the Council will have the opportunity on the expiration of the Notice period to decide whether it is appropriate for action to be taken; and
d)Council is also in the position where it can reconsider whether a Notice under clauses 9.3 and 9.4 of Scheme No. 6 is appropriate in view of the action which has been taken to date.
Council should be aware that solicitors acting on behalf of the owners of the Hungry Hollow Tavern have commenced an action in the Supreme Court seeking an injunction against the Council's decision on 16 February, 1999, based upon the fact that the owners' solicitors were not given the opportunity to be heard by Council before the decision on 16 February 1999 was made.
An application for interlocutory injunction (that is an injunction to run up until the time that the action can be heard by the Court) is due to be heard in the Supreme Court on Tuesday 16 March. That action incorrectly assumes that the Notices of Contravention issued on 24 February were issued as a result of the Council's resolution of 16 February.
Chief Executive Officer comments -
Advice has been received from Solicitors McLeod & Co. acting on behalf of Council, His Hon Justice McKechnie made the following orders in relation to this injunction sought by Technotron Investments Pty Ltd against the City of Bunbury.
1.The Chamber Summons for Interlocutory Injunction dated 9 March 1999 be adjourned sine die.
2.The parties have liberty to apply on 24 hours notice to relist the matter for hearing.
3.Costs of and incidental to the Summons be reserved.
McLeod & Co. state Council needs to be particularly careful in its further consideration of the matter. The Plaintiff Counsel indicated to the Court the Plaintiff took the view that the adjournment of the matter by the Council indicated that Council was proceeding on the basis the Notice issued was somehow invalid. In fact the Council has deferred this matter to the Council Committee Meeting to enable the Council in Committee to fully consider the matters presented to it in this report.
McLeod & Co. do not agree with the proposition by the Plaintiff, but advise Council should be aware that if it appears to back away from the Notice, the plaintiff may attempt to argue the City has effectively complied with what the plaintiff sought by the injunction which would give them cause to argue for the costs of the action
Council must note it should only deal with the Executive Recommendation, items a), b), c) and d), any attempt by Technotron or its Solicitors or any other person to revisit the entire matter would require a recision motion of the decision made at Council on the 16 February 1999 prior to those matters again being revisited.
The fact is Council has decided to issue a Notice, this matter before Council now proposes to ratify a Notice of Contravention issued and that should contravention of Town Planning Scheme continue at the expiration of the 28 day period, the matter be bought back to Council to allow it to determine whether proceeding should be commenced in the Court of Petty Sessions. They are the matters to be considered at the Council Committee Meeting 23 March 1999.
EXECUTIVE / COMMITTEE RECOMMENDATION:
a)Council note that a Notice pursuant to clauses 9.3 and 9.4 of Town Planning Scheme No. 6 as per Council's resolution of 16 February, 1999 has not been issued.
b)Council ratify the Notice of Contravention dated 24 February, 1999 warning that a prosecution pursuant to section 10(4) of' the Town Planning and Development Act 1928 may be instigated.
c)Council resolve that if the Hungry Hollow Tavern continues to operate in contravention of Town Planning Scheme No. 6 at the expiration of the 28 day period stated in the Notice dated 24 February, 1999 and referred to in (b) above, the matter be brought back before Council to allow it to determine whether proceedings should be commenced in a Court of Petty Sessions.
d)Council note the commencement of the action in the Supreme Court on behalf of the owners of the Hungry Hollow Tavern and resolve that the action be defended at least until such time as a full report on the action can be provided to and considered by the Council.
At the Council Meeting, Mayor Castrilli disclosed a financial interest as he owns property and lives very close to the premises in question. He left the Council Chamber at 8.16pm and did not take part in the discussion or vote on the item. The Deputy Mayor, Judy Jones, assumed the Chair during the Mayor's absence.
Cr Wenn disclosed a financial interest as he lives in the same street as the premises in question. He left the Council Chamber at 8.16pm and did not take part in the discussion or vote on the item.
Cr Jeffree disclosed a financial interest as he is the holder of two liquor licences in the Bunbury District. He left the Council Chamber at 8.16pm and did not take part in the discussion or the vote on the item.
The Deputy Mayor, Judy Jones, requested a mover and seconder for the Original Motion as follows:
Original Motion: Moved Cr Bauer Seconded Cr Nicholson
a)Council note that a Notice pursuant to clauses 9.3 and 9.4 of Town Planning Scheme No. 6 as per Council's resolution of 16 February, 1999 has not been issued.
b)Council ratify the Notice of Contravention dated 24 February, 1999 warning that a prosecution pursuant to section 10(4) of the Town Planning and Development Act 1928 may be instigated.
c)Council resolve that if the Hungry Hollow Tavern continues to operate in contravention of Town Planning Scheme No. 6 at the expiration of the 28 day period stated in the Notice dated 24 February, 1999 and referred to in (b) above, the matter be brought back before Council to allow it to determine whether proceedings should be commenced in a Court of Petty Sessions.
d)Council note the commencement of the action in the Supreme Court on behalf of the owners of the Hungry Hollow Tavern and resolve that the action be defended at least until such time as a full report on the action can be provided to and considered by the Council.
During discussion on the Original Motion, Cr Comito claimed that the legal opinions received in relation to this matter should be confidential and moved the following Motion:
Motion: Cr Comito
The meeting move 'Behind Closed Doors' to discuss item 10.6
The above Motion was overruled by the Deputy Mayor on the grounds that the Local Government Act does not require a Council Meeting to move behind closed doors to discuss legal opinions.
Immediately following the Deputy Mayor's ruling, the following procedural motion was moved:
Council Decision: Moved Cr Dean Seconded Cr Major
(125/99) The Original Motion be put.
CARRIED
9 Votes 'For' / 1 Vote 'Against'
Accordingly, the Deputy Mayor put the Original Motion to the vote as follows:
Council Decision: Moved Cr Bauer Seconded Cr Nicholson
(126/99)
a)Council note that a Notice pursuant to clauses 9.3 and 9.4 of Town Planning Scheme No. 6 as per Council's resolution of 16 February, 1999 has not been issued.
b)Council ratify the Notice of Contravention dated 24 February, 1999 warning that a prosecution pursuant to section 10(4) of the Town Planning and Development Act 1928 may be instigated.
c)Council resolve that if the Hungry Hollow Tavern continues to operate in contravention of Town Planning Scheme No. 6 at the expiration of the 28 day period stated in the Notice dated 24 February, 1999 and referred to in (b) above, the matter be brought back before Council to allow it to determine whether proceedings should be commenced in a Court of Petty Sessions.
d)Council note the commencement of the action in the Supreme Court on behalf of the owners of the Hungry Hollow Tavern and resolve that the action be defended at least until such time as a full report on the action can be provided to and considered by the Council.
CARRIED
*6 Votes 'For' / 5 Votes 'Against'
*There being an equality of votes (5 votes 'for' / 5 votes 'against') the Deputy Mayor as Acting Chairman, advised Council that she had decided to exercise her right to have a casting vote and voted 'for' the motion.
A request was made to record the vote as follows:
For:Deputy Mayor Jones (2 votes), Crs Bauer, Dean, Nicholson and Disney
Against:Crs Kearsley, Comito, Dillon, Hill and Major
His Worship the Mayor, Crs Wenn and Jeffree returned to the Council Chamber at 8.22pm.
The Mayor resumed the Chair."
I turn now to the question of the balance of convenience on the assumption that contrary to what I have held, the plaintiff has disclosed a serious question to be tried on both the legitimate expectation arising from the council committee meeting of 9 February, the council's power to defeat that expectation in its meeting of 16 February and the legal effect of the notice of contravention.
In my opinion, the balance of convenience does not favour the grant of an interlocutory injunction. It is clear that before a prosecution can be launched, council has resolved to consider that very question, namely, whether a prosecution should be launched.
There is therefore opportunity for the plaintiff to approach council and to lobby it for support and to put forward reasons against prosecution. A prosecution will have a much more direct impact upon its rights, after all, than the notice to comply. There may be some considerable time between now and the trial. Even if the plaintiff's rights to a hearing have been infringed in the manner asserted, the real issue between the parties, the prosecution, can nevertheless be adequately ventilated. In its minutes of 30 March 1999, the council confirms that the matter must come back before council for decision on a prosecution.
While I acknowledge the plaintiff's right to insist on procedural fairness being accorded to it, I am satisfied that no substantial injustice will be done to its interests if I should, in discretion, refuse the application for an interlocutory injunction at this stage. Therefore, the application is refused.
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1
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