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? However, of those questions, only Q2 seems to have been the subject of any real debate at the hearing. In the event, his Honour held that; (1) absent a defence of an existing non-conforming use, development consent - which had been neither sought nor given - to the holding of the Festival was required; (2) use of the subject land at the proclaimed day in 1979 as "a caravan park, picnic ground/amusement park", was sufficient to provide a defence to the proceedings; (3) even if that view be held to be in error, the Court retained a discretion to refuse the injunction sought; and; (4) certain undertakings as to the conduct of the Festival having been offered by the Respondent and accepted by the Court, the proceedings ought, if the discretion needed to be invoked, be dismissed with costs. In the event, therefore, the Festival was held as planned. 2 UNREPORTED JUDGMENTS On the hearing of the Appeal, it was only Q2 to which any real argument was directed. In the light of the view which I have taken as to the proper disposition of this appeal, I do not consider that any answer to that question is called for, and accordingly, I refrain from answering it, neither affirming, nor denying, the correctness of his Honour's view on it. I say this, since it seems to me that is not the role of this Court to correct the reasons given at first instance for the making of an Order, or Orders, if that Order was, or those Orders were, properly made; rather it is the role of this Court only to correct Orders which, in the circumstances, ought not to have been made. As I believe that, in the present case - even if the only basis for supporting his Honour's orders were that, in the Court's discretion, the relief sought ought to be refused - the Orders which were made were in fact made correctly, no answer to Q2 is called for. The possibility that the Court might so decide having been raised with him during the hearing, counsel for the Appellant sought leave to file, and to rely upon, an Amended Notice of Appeal, in which was sought a Declaration that the Festival required development consent. For my part, I would refuse the leave sought, if for no other reason than that I consider that, even if consent were in fact required for the Festival lawfully to be held, there would be no utility in now declaring that to be so. There are, however, other reasons for my declining the leave sought, they including - but not being restricted to - first, that although originally sought in the application which was filed, the claim for a Declaration was not prosecuted at the trial; and, second, that a Declaration in the form sought, which Declaration relates solely to a particular event, would not be of the slightest assistance to those who, in the future, might be concerned to determine what types of activities - and in particular, what types of special event - might lawfully be conducted on the land in question. I would therefore propose that the Appeal be dismissed with costs. Mahoney AP I agree. The Court gave consideration to the possibility that, as a matter of convenience, it might be able to define precisely what the existing use rights were, so as to assist Council in its administration of this matter in the future. But I am satisfied that, in the present proceeding, it would not be possible, or at least practicable, to do so. I agree with the order proposed. Sheller JA For the reasons given by the other members of the Court, I agree that the appeal should be dismissed with costs. Mahoney AP: The order of the Court is that proposed by Powell JA. Appeal dismissed with costs. Counsel: Appellant: PD McClellan QC and ST White Respondent: GJ Kennedy Solicitors: Appellant: Sly and Weigall Respondent: Jennifer E Darin (Chatswood)