Willoughby City Council v Sahade

[2001] NSWLEC 146

Reported Decision: 116 LGERA 172

Land and Environment Court

of New South Wales

CITATION:

Willoughby City Council v Sahade and Ors [2001] NSWLEC 146

PARTIES:

APPLICANT
Willoughby City Council

RESPONDENTS
Sahade and Ors

FILE NUMBER(S):

40016 of 2000

CORAM:

McEwen AJ

KEY ISSUES:

:- invalidity of condition of consent -
jurisdiction to determine related matter -
whether fresh proceedings required

LEGISLATION CITED:

Land and Environment Court Act 1979, s 16, s 22

CASES CITED:

Port of Melbourne Authority v Anshun (1981) 147 CLR 589;
Phillips v Walsh (1990) 20 NSWLR 206;
Marrickville Municipal Council v Anna Vlattas & Ors. (Bignold J, NSWLEC, 26 April 1991, unreported)

DATES OF HEARING:

20/06/2001

EX TEMPORE
JUDGMENT DATE :

06/20/2001

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan (Barrister)

SOLICITORS
Mallesons Stephen Jaques

RESPONDENTS
Mr A Sahade (Barrister)

SOLICITORS
Comino Prassas

JUDGMENT:

IN THE LAND AND 40016 of 2000
ENVIRONMENT COURT McEwen AJ
OF NEW SOUTH WALES 20 June 2001

Willoughby City Council

Applicant

v

Sahade

1st Respondent

Crystal Car Wash Café Pty Limited

2nd Respondent

Kingsford Car Wash Pty Limited

3rd Respondent

JUDGMENT

1. In these proceedings, two motions have been filed. The council has filed the second motion - if I can refer as such to its motion dated 12 June 2001 - seeking that the respondents’ earlier motion of 6 March 2001 be struck out. The council also seeks orders as to costs - both of these motions and of the proceedings themselves.

2. The respondents’ motion dated 6 March 2001, sought a declaration that condition 4 of the development consent granted by the applicant council on 2 February 2001, being development consent number 2000/1437, be declared unlawful. The proceedings related to premises at 315 Victoria Avenue, Chatswood. Some time prior to 31 January 2000, it seems that work was commenced on those premises by way of land filling, earthworks and alterations and additions on and to the property. The premises at that address had, for many years, been a Caltex service station and I have inferred from the material that has been put before the Court that the endeavours of the respondents related to the construction of a car wash and in particular the style of car wash that the name of the second respondent demonstrates at various metropolitan areas, where they are simply termed Crystal Car Washes.

3. On 31 January 2000, the applicant council filed class 4 proceedings, seeking restraining orders against the respondents in relation to the works I have just described, and also as to the installation of some sediment control devices.

4. On 31 January 2000, Cowdroy J, granted ex parte relief in relation to the sediment control devices and stood the proceedings over to 2 February 2000. On 2 February 2000, the Chief Judge of the Court, made orders in favour of the council restraining land filling, earthworks, building works et cetera, and continued the ex parte orders made by Cowdroy J regarding sediment controls. Costs were reserved.

5. Thereafter the matter came back before the Court for callover on 15 February 2000. At the callover on that day, there was an indication on the part of the respondents that a development application would be lodged with the council. That application became the subject of consent orders made by Bignold J on 29 March 2000, where his Honour made further orders, again in relation to the use of the site for the purposes of carwash or cafe, and made an order by consent that the respondents would lodge a development application with the applicant council, and also secure the partially demolished mechanics garage.

6. Between that appearance before the Court on 29 March 2000, and February of the following year, the matter was called over before the Court on a number of occasions where it was noted that the application was being pursued with amended plans and, I take it, amendments to the application proper. Ultimately, on 2 February 2001, the council granted development consent as I have referred to earlier.

7. On 2 March 2001, the proceedings were restored to the list of Talbot J, on the motion of the respondents to set aside the orders which had previously been made restraining the respondents from doing various works on the site. That motion was stood over for hearing before his Honour to 5 March 2001.

8. On 5 March 2001, consent orders were entered by Talbot J to the following effect. Firstly, the orders which Bignold J had made on 31 March 2000 were set aside. Secondly, his Honour reserved the costs of the proceedings. And thirdly and importantly, his Honour noted undertakings given by the respondents in relation to four items of work at the site, those four items of work being apparently in addition to the conditions of development consent 2000/1437. Those four items related to additional items of work pertaining to sediment control devices, maintaining drains, the structure of the mechanic’s garage, and it seems also going to structures on the site generally.

9. The Court file notes that on 5 March 2001, the matter was listed for callover on 15 March 2001. There is no indication as to the purpose of that callover but one infers it was to deal with the question of costs which had been reserved by his Honour.

10. The following day, 6 March 2001, the respondents filed the motion to which I have referred earlier, challenging the validity of condition 4 in the development consent. Condition 4 of the development consent related to the applicant’s s 94 plan which had raised a levy of some $63,036 on account of - I thought it was on account of open space - but it raised that figure generally in accordance with the plan. I should note that that motion was made returnable on 15 March 2001.

11. On 7 March 2001, the applicant council’s solicitors wrote to the solicitors for the respondents. Relevantly, at that time, there was a question as to whether or not the s 94 contribution fee had been paid. The letter said that the cheque which the council had received had been dishonoured and raised the question of the validity of any construction certificate upon which the respondents might seek to rely for the purpose of carrying out the work the subject of the consent. The letter reads in part:

We are instructed to advise you that if the payment referring to the s 94 contribution is not made before the commencement of works, our instructions require us to immediately seek an injunction to restrain your client from carrying out any works on the site. Such proceedings will also include a claim for your client to pay the council’s costs in connection with the matter.

12. It seems that that letter was faxed by the council’s solicitors to the solicitors for the respondents, around 3.15pm that day. The solicitors for the respondents replied setting out a thumbnail sketch of the challenge the respondents wished to bring to the validity of the s 94 contribution, and its calculation.

13. I have been told from the bar table that the challenge to the s 94 contribution is on the basis that there is no provision in the s 94 plan itself which gives ground for the calculation as propounded by the applicant council and hence, there being no foundation for such a calculation, it was unlawful. A second arm of challenge by the respondents is on the basis of the mathematics and the application of the relevant formula in the plan. These are matters not for determination today but I mention them merely to give an outline of the argument which the respondents wish to bring against the council’s imposition.

14. The callover of the matter on 15 March 2001, raised the spectre of what was to be done with the motion filed on 6 March 2001 by the respondents. The Court file records that on that day, Mr Menzies, the solicitor for the applicant council, informed the Court that the council would bring a motion to strike out the respondents’ motion of 6 March 2001. The matter was listed on a number of occasions for callover thereafter, when a similar indication was made by a representative of the council.

15. Also on 15 March 2001, it seems to have been known that the respondents wished to pursue their entitlement to a s 82A application (under the Environmental Planning and Assessment Act 1979, hereafter referred to as “the Act”) to have the council review the contributions as calculated under condition 4 of the consent. I am informed from the bar table that submissions have been put by the respondents in that regard but the council has, as yet, to determine the outcome of that application for review. In relation to that challenge under s 82A, there has been tendered in evidence, a letter from the council’s solicitors of 2 April 2001, referring to the prospective outcome. The council has reached agreement that the monies called for under the s 94 condition, (if I can call it that), of some $63,000 would be lodged with the council pending determination of both the s 82A challenge and any challenge, of the type in the present motion, and that in the event of there being a re-calculation of the sum, the council would refund to the applicant the difference.

16. The matter before the Court raises the question of whether or not the jurisdiction of the Court should be invoked for the purpose of hearing argument and determining the motion of the respondents of 6 March 2001. It is submitted by Ms Duggan on behalf of the council that this is an inappropriate course. The submission put by her is that the appropriate course for the respondents was to either pursue a challenge under s 97 of the Act, or alternatively commence separate class 4 proceedings; she submits that there is insufficient nexus between the issue raised in the respondents’ motion of 6 March 2001, and the proceedings proper, to warrant or justify the entertaining of this challenge in these proceedings.

17. A number of matters are put in support of those submissions. Firstly, it is said that the consent which issued by the council on 2 February 2001 is not before the Court in the sense that it is not a matter in issue before the Court. It is submitted that it is a separate item or matter which, in relation to any challenge, requires separate proceedings to be brought.

18. Secondly, it is put that the council is disadvantaged insofar as the motion of 6 March 2001 has not been particularised by way of points of claim or affidavits and that further, the council has not had an opportunity to respond, in turn, by putting points of defence, or formulating its position.

19. Thirdly, it is put that by taking this course, the respondents have avoided paying the normal filing fee of some $546.

20. Finally it is suggested by Ms Duggan that by taking the course the respondents have, they somehow or other gain priority, or expedition they otherwise are not entitled to. Dealing with this last point, I must say that looking at the dates involved from the date of filing of the motion, if the s 97 challenge or indeed the class 4 proceedings had been brought back then, one would anticipate that in all likelihood they would have been heard in the same type of time frame that we are here dealing with.

21. Mr Sahade, for the respondents, made a number of submissions:

22. Firstly, he said that there is prejudice in relation to bringing any class 4 proceedings because now such application would be three (3) months out of time. That may not be so, as there is no evidence that publication of the consent has happened, and hence the 3 month window of opportunity has commenced.

23. Secondly, he put that in the context of the council having granted consent, should the conditions of that consent be breached, the council would have been well entitled to bring an application in these proceedings for compliance. He also points to the general principle contained in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 as to the need for the Courts to have before it, all matters and arguments relating to the same set of facts.

24. The issue germane to the Court is whether or not the Court is seized of jurisdiction to entertain a motion pursuant to ss 16 and 22 of the Land and Environment Court Act 1979, and in particular pt 9 of the Rules under that Act which deals with motions.

25. A not dissimilar issue arose for consideration by McClelland J (as he then was) in Phillips v Walsh (1990) 20 NSWLR 206. Before turning to that case I should note that it is of relevance to observe the Court’s broad powers in ss 16 and 22. In particular, in s 22, the Court is enjoined to ensure that all matters between the parties are determined to avoid multiplicity of proceedings.

26. In Phillips v Walsh, his Honour dealt with an application by way of motion to implement the outcome of the case, where final orders disposing of proceedings had already been made some nine or ten months prior to the motion coming before the Court. The challenge was that the motion was an invalid method of bringing before the Court, namely issues relating to the administration of the estate which arose out of final orders that had been made in the main proceedings. His Honour concluded that the motion for relief be dismissed because in his Honour’s view,

It was inappropriate to seek such orders by application made in the present concluded proceedings and that such an application should be made only in fresh proceedings commenced for that purpose. (at p 211E)

27. It is relevant that his Honour’s decision dealt with a significantly different set of facts, namely that the matter had been finally determined and final orders made. His Honour did set out some useful observations (starting at p 209) as to the construction of the analogous rule in the Supreme Court Rules, namely pt 19 r 1. Whilst the wording of that rule is slightly different to that of the Rules of the Land and Environment Court Act, it operates for all intents and purposes the same as the rule contained in the rules to this Court.

28. His Honour made the following significant observations in his consideration of the power under pt 19 r 1 of the Supreme Court Rules. Firstly, his Honour noted that the rule merely prescribed the mode by which applications in existing proceedings are to be made, that is by motion. Secondly, he noted that when proceedings had been disposed of by a final order which had been entered, the proceedings were at an end and could not be revived.

29. His Honour went on to note a number of exceptions and qualifications to this principle but observed that none of those exceptions had application in the circumstances before him, namely where it was sought by way of motion to work out the final orders in practice, or to modify them. His Honour noted that the power to invoke the Court’s jurisdiction by way of motion would not extend to giving substantive relief which would be different to that given in the final order.

30. His Honour cited a number of authorities which supported the generally accepted position, viz that a motion was inappropriate in existing proceedings to enforce an agreement or compromise of those proceedings. His Honour observed that the motion to enforce those types of agreements:

...would not be proper to do so where substantial matters are involved beyond the ambit of the proceedings as originally constituted, or where in the interests of justice, disposition of the matter on summary application is inappropriate. (at p 210F)

31. The question for determination of the present application is whether or not the matter raised in the respondents’ motion of 6 March 2001 is a matter constituted, or based in, the present proceedings. In my view it is.

32. The matter adverted to in the motion arises in the context of the development consent issued by the council on 2 February 2001. That development consent led to the original injunctive orders being dissolved. That dissolution occurred because the complaint made by the council in obtaining the original injunctions had been met. The answer to that complaint was the consent. The consent for the purpose of the orders made by Talbot J on 5 March 2001 was before the Court. Given that the respondents wish to challenge the validity of an aspect of that consent, in my view, it is proper to regard the consent and that challenge, as matters before the Court in the context of the original proceedings.

33. I am fortified in this view by a decision of Bignold J in Marrickville Municipal Council v Anna Vlattas and Ors. (Bignold J, NSWLEC, 26 April 1991, unreported)(No. 40192 of 1988). That matter concerned an injunction obtained by the council in relation to the Enmore Theatre. The injunction was breached and the council sought to bring contempt proceedings in relation to those breaches. On behalf of the respondents in those proceedings, it was submitted that it was inappropriate to bring contempt proceedings in the same set of proceedings, but rather, that fresh proceedings ought be commenced for that purpose.

34. His Honour, after reviewing the evidence, referred to the decision of McClelland J in Phillips v Walsh to which I have referred. Applying it to the case with which Bignold J was dealing, his Honour noted that, in his view, the decision in Phillips v Walsh did not support the respondents’ submissions for the following reasons:

(i) there (was no) want of jurisdiction in the Court to hear and determine the matter raised by the applicant;

(ii) the mode in which the applicant has raised the matter (was not) incurably defective; and

(iii) the relief claimed by the applicant (was not) inappropriate to be sought by an application in the original proceedings but should (not) be the subject of fresh proceedings. (Judgment p 6)(bracketed words added)

35. Whilst liberty to apply was reserved by Bignold J, no such liberty was reserved in the present proceedings by Talbot J on 5 March 2001. Significantly, his Honour did not finally dispose of the proceedings. He made orders by consent dissolving the original orders, reserved the question of costs and noted various undertakings. Plainly the proceedings were stood over and remained on foot, both for the purpose of costs, and importantly, the undertakings. Although those undertakings were not referred to as concomitant with the terms of the development consent, his Honour, in accepting the undertakings, also noted the development consent. Plainly the proceedings remained on foot for any matters which would flow from the orders made by his Honour, or indeed arising out of the implementation or adherence to either the consent orders, or, in my view, the consent, granted on 2 February 2001.

36. For these reasons I am of the view that the challenge by the council in its motion of 12 June 2001, seeking to have the respondents’ motion of 6 March 2001 struck out, must fail.

37. It is obvious that the matter is not ready for determination in final form. I do not propose to deal with the question of costs in relation to the proceedings. In relation to the further conduct of the matter, I should give some directions as to a timetable for the putting on of material and remit the matter to the registrar for the taking of a further date.

38. I make the following orders:

1. The first prayer of the applicant’s notice of motion dated 12 June 2001 be dismissed.

2. The question of costs is reserved; I note the respondent’s apparent entitlement to the costs of today.

3. I direct the respondent to file and serve points of claim and any material in support within fourteen (14) days.

4. I direct the applicant to file and serve points of defence within fourteen (14) days thereafter.

5. I direct the proceedings be listed for callover before the Registrar at 9:00am in the week commencing five (5) weeks from today.