FAIRFIELD CITY COUNCIL v BROWN and ORS [1995] NSWCA 146

FAIRFIELD CITY COUNCIL v BROWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, SHELLER and POWELL JJA 16-17 August 1995, 17 August 1995

[1995] NSWCA 146

Building Control and Town Planning — Local Environmental Plan — Prohibited uses — Existing use rights — Classification of — Classification of proposed use — Whether consent required — No consent — Injunction — Whether discretion to refuse — Whether Declaration of any utility.

Powell JA This is an appeal from a Judgment delivered and Orders made by Bignold J in the Land and Environment Court on 2 February 1995, when his Honour dismissed, with costs, proceedings which had been brought by the Appellant in the Class 4 jurisdiction of that Court.

Although the relief originally sought in the application - which application, although not filed until after significant time had passed from that time when the Appellant had become aware of the event proposed to be held, was brought on for hearing at very short notice - was more extensive, in the event, the only claim for relief, which was prosecuted at the hearing, was a claim for an injunction to restrain the holding of what was described as the "Waitangi Festival", which was scheduled to take place over two days on 4 and 5 February 1995.

Four questions potentially called for determination on the hearing, they being:

(1) would the Festival, if held, involve a breach of the Fairfield Local Environment Plan?

(2) if the answer to Q1 were in the affirmative, would the Respondents be able successfully to raise a defence to the proceedings based upon an existing non-conforming use?

(3) even if the answer to Q2 be in the negative, did the Court nonetheless retain a discretion to refuse an injunction; and,

(4) if so, ought the Court to exercise that discretion in favour of the Respondents?