COUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY v JF McLEAN INVESTMENTS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and Hope JJ 8 May 1992, 8 May 1992 [1992] NSWCA 49 TOWN PLANNING — breach of planning instrument — vehicles parked on land zoned residential — twenty years continual prohibited use without complaint — minimal environmental impact — dwelling house still exists and used — at first instance, discretion exercised to refuse injunction applying Warringah Shire Council v Sedevic 1987 63 LGRA 361. Held: no miscarriage in exercise of discretion. Judge took into account and gave due consideration to all matters he should have including public interest factor and impact of refusal to grant injunction on Council's town planning scheme. Per Priestley JA and Hope AJA, possible prosecution under s125 Environmental Planning and Assessment Act may answer oddity of Council's inability to enforce town planning scheme. Priestley JA No 1 Bruce Street and No 49 Sinclair Street are adjoining premises at Crows Nest in the Municipality of North Sydney. The second respondent to this appeal owns the Bruce Street premises on which it conducts a motor vehicle smash repair business. These premises are zoned Business (Services) 3(e) under Interim Development Order No 60. That zoning does not permit the use of the premises for the smash repair business but the parties to the appeal are agreed, as they were at first instance, that the premises can lawfully be used for that business because of the existing use provisions. The first respondent owns the Sinclair Street premises on which there is a house used as a dwelling. These premises are zoned Residential 2A. The second respondent, as part of its business, parks vehicles in the yard of the Sinclair Street premises. The parties are agreed that the use of land zoned Residential 2A for such a purpose is prohibited. The North Sydney Municipal Council took proceedings in the Land and Environment Court for an injunction restraining the respondents from using the Sinclair Street premises for the prohibited purpose. Bignold J heard the case and gave written reasons for his decision in which he considered the evidence in appropriate detail. He then stated in summary his findings relevant to the exercise of his discretion to grant or withhold the claimed injunction. He said: "T shall first state my findings which operate in favour of the respondents (i) the unlawful use has existed continuously for more than twenty years; (ii) in the period it has not been the subject of any known complaint from neighbours or others; (iv) the existence of the unlawful use causes minimal or negligible, if any, adverse environmental impact; (v) though contrary to the statutory residential zoning (both present and proposed) the unlawful use does not totally or substantially offend that zoning by virtue of the fact that the dwelling house located on the subject property continues to exist and is used for residential purposes; 2 UNREPORTED JUDGMENTS (vi) further to findings (iv) and (v) the unlawful user by virtue of its nature (relatively passive use of accommodated parked motor vehicles) and scale and character (using only the rear yard of the residential property for car parking) does not involve a serious or substantial commercial intrusion into the residential zoning; and (vii) the grant of an injunction requiring the cessation of the unlawful use is likely to have some adverse economic/livelihood effects of the Respondents although these have not been estimated or quantified with any precision or detail. On the other hand my findings which operate in favour of the Applicant are as follows (viii) The Applicant's planning policies since 1981 have been to protect and enhance residential zonings and developments in the Municipality. (ix) Their policies are steadfastly opposed to commercial intrusions into residentially zoned lands. (x) The Applicant has sought to rigorously enforce its residential policies and in the present case, upon becoming aware of the existence of the unlawful use in 1986, has consistently sought its cessation. (xi) The continuation of the unlawful use has the effect of denying the opportunity for an intensification of the existing residential use of the subject property allowed for by the statutory zoning (both present and proposed). (xii) In seeking the enforcement of the planning law in this case the Applicant is seen to be acting as the proper guardian of the public rights created and conferred by planning law." Bignold J then referred to the guidelines in the exercise of discretion in cases of the present kind which appear in this Court's decision in Warringah Shire Council v Sedevcic (1987) 63 LGRA 361. In his view the appropriate result upon application of the guidelines to the facts of the case was that the injunction should be refused. He then considered an alternative claim for relief made by the Council to the effect that he should restrain the use of the premises to a limited number of cars so that, for example, the maximum number of motor vehicles to be parked at any one time should be stipulated by the court, or alternatively that there should be a restraint on the number of smashed vehicles which might be parked in the premises. He rejected the submissions seeking this more limited relief also. Accordingly on 14 October 1988 he dismissed the proceedings. The Council has appealed against his decision and seeks in this court, as it did below, an injunction without qualification, or, in the alternative, more limited relief. The argument on the appeal was put on a limited basis. The judge's primary findings of fact were not challenged. The existence of discretion to grant or withhold the injunction was not challenged either. Such a challenge could not be made except by asking the court to overrule the line of its own decisions exemplified by Sedevcic establishing the existence of the power to withhold on a proper discretionary basis an injunction to restrain a breach of town planning laws. The appellant did not undertake the rather heavy task of challenging this line of authority. The argument presented was that the trial judge's exercise of discretion miscarried. The familiar statement in House v R (1936) 55 CLR 499 describing the relevant tests was drawn to the court's attention. Counsel then advanced a number of reasons why this court should conclude that the trial judge either had not or had considered matters that he should or should not have done. Before mentioning these arguments I should make it clear WRQUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY v JF McLEAN INVESTMENTS PTY LTD (Priestley JA) that I do not think it is necessary for a judge in exercising a discretion of the kind in question in the present case, to set out explicitly every matter which he is taking into account, even less every matter which he is not taking into account, in considering the manner in which his discretion should be exercised. Very often it will be possible to see from the judge's reasons the basis of his decision with sufficient clarity, even although the relevant considerations are not all spelt out in terms, for the appellate court to see whether or not there is justification in a submission that the exercise of discretion has miscarried. The arguments put focused attention on the explicit factors mentioned by his Honour in the passage of his judgment I have earlier set out. The first submission made however was one of a more general kind, which was that a reading of his Honour's reasons showed that he omitted to consider specifically what was best in the public interest concerning the use of the premises which were being used in the prohibited way. In support of this submission it was said that although the courts recognise that councils are in a sense the representatives of the public interest in bringing proceedings such as the present, nevertheless there should have been a more specific consideration than his Honour gave to the general question involving the Council's duty of this kind, namely what is best in the general public interest, in deciding the question raised about the use of the premises. It does not seem to me that the judge was required to go to this length or specificity in setting out his reasoning In the passage which has been already referred to, the considerations which his Honour mentioned, numbers (viii) to (xii), seem to me to recognise quite directly the public policy elements in the planning policies adopted by the Council and the general public interest in a proper maintenance of the town planning scheme over which the Council was presiding. In particular, the twelfth matter mentioned by his Honour seems to me to demonstrate that his Honour gave all due consideration to what might be called for short the public interest factor. Turning then to the particular matters criticised in what Bignold J said, the first one related to the use of the word "unlawful" in various places in his Honour's summary in describing the use of the premises which was being complained about by the Council. It was correctly pointed out that the use can be described by the more powerful seeming word "prohibited" and that his Honour was in some way betraying an unduly sympathetic approach to the respondents' case by using the word "unlawful" with its perhaps slightly less pejorative connotations instead of the word "prohibited". For my part I do not see any significant difference in the meaning of the words in the context in which they have been used in the present case. That his Honour did not see any particular difference in them either, again in the context of the proceedings he was considering, seems to be shown by what he said in the early part of his reasons where he first of all noted that the respondents conceded that the use of the premises was a prohibited use and then made a further use of the term when he said that in zoning described as Residential 2A, the planning scheme absolutely prohibits the use of land for the purpose of, amongst other things, car repair stations. So the word "prohibited" was well in his Honour's mind and it seems impossible to me to say that his later use of the word "unlawful" instead of the word "prohibited" showed anything other than that he thought the words were for relevant purposes substantially synonymous. 4 UNREPORTED JUDGMENTS The next criticism made was of the matters numbered (iv), (v) and (vi) in Bignold J's list. The criticism of them can be summarised by saying that the way his Honour expressed those matters showed he did not give sufficient weight or consideration to what was referred to as the integrity of the Council's town planning scheme, that is, stated more fully, that his Honour showed a misunderstanding of the extent to which the Council's efforts to bring about town planning results appropriate to the scheme in place would be impeded by the refusal of an injunction. I do not think that this criticism is a sound one. Matters (viii) to (xi) mentioned by his Honour all seem to me to go directly to what was called the integrity of the town planning scheme, and to show that his Honour had a lively appreciation of the importance to the Council of being able to see that its scheme was carried out, and when all the matters are read together, that he had in mind the possible effect on the Council's town planning scheme and the refusal of the injunction. Another criticism was that the seventh matter relied upon by his Honour was something that really was not open to him to take into account or alternatively to give any particular weight to. The latter way of putting it would be the more appropriate way. When that paragraph is read, it does not seem to me that it can be said that his Honour was placing any great weight on what he was referring to. He emphasised the vague nature of the adverse impact which the respondents were relying on and it seems to me that although he narrated the matter as one which operated in favour of the respondents, it was one which clearly had not particularly great weight with him. Finally on the unqualified injunction aspect of the claim there was a more general submission to the effect that the result arrived at by the trial judge was such that it showed when the circumstances of the case were considered, that his exercise of discretion must have miscarried. I do not agree with this submission. The judge seems to me to have taken into account the matters that he should have taken into account. He had an appreciation of the facts which has not been questioned. The law to the effect that the court in such circumstances has a discretion to withhold an injunction was not challenged. His Honour acted on that law and evidently took the view that the nature of the breach relied on was not such as to warrant the granting of an injunction. That such results must come about at times is inherent in the existence of the jurisdiction to withhold the grant of an injunction. The facts of the case seem to me to justify the view taken by the trial judge that this breach was not likely to cause appreciable harm either to persons in the area or to the overall objectives of the town planning scheme. If the facts and the result of the case are looked at in isolation from all other cases, it may seem a little odd that a court would refuse to prevent an undisputed breach of the law, but the matters that I have already referred to which flow from past decisions and an acknowledged approach to cases of this kind which permits courts to modify but not necessarily to modify more than temporarily the more rigid requirements of planning laws, all seem to me to take away or to dispel the notion that there is any oddity involved in the result. One matter relevant to this is the existence, or at the very least, possible existence, as it seems to me, of another remedy available to the Council if it wishes to do something about the continued use of the premises in defiance of the prohibition imposed by the planning scheme. Although not fully explored in argument (which is why I have spoken in the somewhat tentative way I have done) when questions were raised concerning s125 of the Environmental WRQUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY v JF McLEAN INVESTMENTS PTY LTD (Hope) Planning and Assessment Act, and whether under that section it would be possible for the council to prosecute either or both of the respondents, no answer was given to indicate that such a prosecution would not be possible. S127 of the Act and in particular subs7 of that section show that in some circumstances a prosecution will not be permitted to go forward when there is an order under s124 of the Act in existence relating to particular premises, but that subsection does not seem to have any operation in the circumstances of the present case if any relief in the nature of an injunction to the Council is refused. Once the complication caused by that subsection is put on one side, as it seems to me at the moment, and I again mention we have not heard full argument on this matter, I do not see what defence the respondents would have to prosecution under s125. Be that as it may, and I would make it clear that if what I have tentatively indicated is the position, is in fact the position, then all questions of oddness of the result in this court would in my opinion disappear, the attack that has been made upon the judge's reasons as demonstrating the claimed miscarriage of his discretion seems to me to have failed. I would therefore be of the view that the appeal should be dismissed so far as it relates to the claim for an unqualified injunction. As to the lesser claim for relief, the considerations advanced were much the same as those in support of the main argument with the addition of a reference to the second last paragraph of his Honour's reasons. This paragraph said: "On these facts I do not think that limited injunctive relief is justified. If the facts were different or were to change (eg the parking use was principally for smashed cars awaiting repairs) different considerations may operate." This paragraph was made the basis for a submission that the judge had failed to determine the matters in dispute completely and finally which in turn it was said helped to demonstrate that some qualified relief should have been given. Iam afraid that I do not agree with this argument either. The paragraph relied on does not seem to me to show any failure to determine what was before the judge. He dealt with that in my opinion finally and fully. What he was indicating by the paragraph was that if the facts before him had been different, he may have come to a different conclusion, or if different facts were to be brought before the court at a subsequent date, then again different considerations might apply. These seem to me to be quite unobjectionable truisms which do not support the view of the paragraph which was advocated before us. In my opinion the appeal should be dismissed with costs. Sheller I agree, I would emphasise that I have no view as to whether a prosecution could or should be brought or if it were, what its chances of success would be, but otherwise I agree with what Priestley JA proposes. Hope | agree. Priestley: The orders will be that the appeal is dismissed with costs. Counsel for the Appellant: SB AUSTEN QC / JE ROBSON Instructed by: MALLESONS STEPHEN JAQUES Counsel for the Respondent: JA AYLING Instructed by: TESORIERO KWAN