Land and Environment Court of New South Wales CITATION : Burwood Council v Korana and Ors [2001] NSWLEC 105 revised - 24/10/2003 APPLICANT: Burwood Council PARTIES : RESPONDENTS: Korana and Ors FILE NUMBER(S) : 40081 of 2000 CORAM: Bignold J KEY ISSUES: :- Unlawful development - whether relief obtainable against owner of land in addition to use -costs of proceedings where final hearing not required. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Rules of Court, Pt 15 r 7 CASES CITED: DATES OF HEARING: 12 April 2001 EX TEMPORE JUDGMENT DATE : 04/12/2001 APPLICANT: Ms L Finn, Solicitor SOLICITORS Abbott Tout 1ST RESPONDENT: Mr Korana in person LEGAL REPRESENTATIVES: SOLICITORS N/A 2ND - 4TH RESPONDENTS: No Appearance 5TH RESPONDENT: Mr G Russo, Solicitor SOLICITORS Russo & Company JUDGMENT: IN THE LAND AND Matter No. 40081 of 2000 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 12 April 2001 BURWOOD COUNCIL Applicant v YASAR KORANA First Respondent PILEENA PTY LTD Second Respondent MAROUN YAZBEK Third Respondent DAVID MICHAEL JURY Fourth Respondent GUISEPPE RUSSO AND VENERA RUSSO Fifth Respondents JUDGMENT Bignold J: 1. On 26 May 2000 the Burwood Council commenced class 4 proceedings against five Respondents claiming declaratory relief that the Respondents were using, suffering or permitting to be used premises known as No. 184 Liverpool Road, Enfield for the purposes of a mobile food van without the consent of the Council having been obtained and in breach of the provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act). 2. The proceedings also claimed an order that each of the Respondents be restrained from using, suffering or permitting to be used the premises for the purposes of the mobile food van within such time as the Court may allow. 3. The proceedings had been commenced by the Council following notice given to each of the Respondents by the Council's Solicitors calling upon them to cease using the premises without consent—in particular the Council's Solicitors, by letter dated 2 May 2000, had written to the first Respondent who was the owner and operator of the mobile food van advising that they had been instructed that he was continuing to operate the mobile food van without the consent of the Council and advising that unless the use of the van ceased within seven days, the Council would commence proceedings in this Court seeking restraining orders against him. 4. Within two weeks, the Council's Solicitors received a letter from a Barrister, Mr Marcel Sahadie, who said that he acted for the first Respondent. The letter continued that his client had spoken to the Council requesting a copy of the development application in order to file an appeal to the Court against the Council's refusal of a development application that had been made by the first Respondent for an extension of time for the operation of the mobile food van business on the subject premises. 5. That application had been made earlier in 2000 by the first Respondent who had been operating the business at the said premises since 1997, pursuant to Council permission (that had been granted from time to time for limited trial periods, the last of which expired on 18 or 19 January, 2000). 6. The application to extend that permitted use had been refused by the Council at a meeting held by it on 7 March 2000. 7. A rescission motion had been lodged against that resolution and that rescission motion was subsequently lost at a later Council meeting. This led the Council to write to the first Respondent on 27 April 2000 advising that the application to extend for a further period of time the permitted use of the mobile food van at the subject premises had been refused. 8. The letter went on to say:- In view of that decision, you are advised that the mobile food van use should cease forthwith and that a continuing use of it for that purpose would leave the Council with no alternative than to institute legal proceedings without further notice. 9. The proceedings, as I said, were commenced by the Council on 26 May 2000 after all Respondents had been called upon to cause the unlawful use to be terminated. 10. The proceedings, as I have indicated, named five Respondents. The first Respondent, Mr Korana, is and was, the owner and operator of the mobile food van business. 11. The second Respondent, Pileena Pty Limited, is the lessee of the subject premises upon which is operated a service station and convenience food establishment. 12. The third and fourth Respondents are respectively directors of the second Respondent. 13. The fifth Respondents are the owners of the land. 14. The second, third and fourth Respondents have not participated in these proceedings at all. 15. The fifth Respondents have participated in that they have filed a submitting appearance but resist any order for costs against them on the ground that they are too remote from the unauthorised activity and that when advised by the Council of the unlawful use, they took appropriate action in calling upon the lessee, the second Respondent, to observe the terms of the lease including the obligation to comply with the planning laws of the State. 16. In the course of argument it was put to the Court, on behalf of the fifth Respondents (the owners of the premises) that no costs order should be made against the fifth Respondents. 17. The Council contended that an order should be made against each and everyone of the five Respondents in the proceedings including the fifth Respondents as owners of the property. 18. In the course of hearing the argument on costs, I drew the Council's Solicitor's attention to a decision of mine—an unreported decision dated 12 February 1997 in matter number 40217 of 1996, Council of the City of South Sydney v Kurtonel and Amelia Home Units Pty Limited. 19. In that decision, I analysed the state of authority in this State in relation to the obtaining of injunctive relief against the owner of premises not otherwise implicated, save for the mere fact of ownership with any unlawful use in terms of the EP&A Act being conducted upon the premises either by a direct lessee or tenant or by a third party exercising some rights from the tenant. 20. In my opinion, what I said in that judgment applies in the present case and it was in these circumstances that I released the fifth Respondents from further attendance in the proceedings by dismissing the Council's claims (both as to substantive relief and an order for costs) against the fifth Respondents. 21. It appears from the evidence that the first Respondent, Mr Korana, occupied for a period of a little more than three years a small section of the service station premises to conduct his mobile van food business with the licence or authority of the second Respondent, the lessee of the premises. 22. I might add in passing that when the fifth Respondents acquired the subject premises in the year 2000 they acquired the premises subject to an existing commercial lease granted by the owners (the fifth Respondents' predecessor in title) to the second Respondent, that lease expiring at the end of 2004. 23. It appears from Mr Korana's statements to the Court (which have not been challenged) that the second Respondent, Pileena Pty Limited, were relevantly the lessee and in control of the premises throughout the time that he has been associated with the premises, since 1997 by virtue of his conduct of the business involving the use of the mobile food van. 24. By separate Motion filed some three months after the commencement of the proceedings, the Council sought interlocutory injunctive relief in respect of the unlawful use. This was by Motion filed in Court on 10 August 2000. 25. The claim for an interlocutory injunction was defended by the first Respondent who on that occasion was legally represented. (He appears in person today before me). In the result, an interlocutory injunction was granted by Cowdroy J after a contested hearing on 16 August 2000. 26. In that case, his Honour reserved the question of costs pending the determination of the first Respondent's then pending Class 1 proceedings. Those Class 1 proceedings had been brought against the Council's decision earlier mentioned, refusing consent to extend for a further period the existing development consent for the use of the mobile van. 27. That class 1 proceeding had been filed in Court on 6 July, 2000 (some five weeks after the Council had commenced the class 4 proceedings) but it had been anticipated in the letter from the Barrister then acting for the first Respondent addressed to the Council's Solicitors that I have earlier referred to (that is the letter of 16 May 2000). 28. In any event, the Class 1 proceedings appealing against the Council's refusal to extend the development consent were never pursued by the first Respondent. For reasons that have not been explained he did not proceed with those proceedings and ultimately they were dismissed for want of prosecution by order of Talbot J on 16 March 2001. 29. In opening the case today, the Council's Solicitor has made it clear that since the interlocutory injunction was granted on 16 August 2000, the unauthorised use of the premises has terminated, and that the proceedings before the Court today were brought on by the Council in order to bring finality to the Class 4 proceedings in the light of the manner in which the Class 1 appeal had come to an end. 30. In seeking relief today, the Council has sought a permanent restraining order as claimed in par 2 of the Amended Application filed in Court today, together with an Order set forth in par 3 of the Amended Application which requires the mandatory removal of the mobile food van from the premises together with associated signage. 31. It appears that after the Council's Solicitors gave notice to all parties of today's hearing fixture and notice of the amended Class 4 Application, drawing attention in particular to the claim for new relief in par 3, (ie for the removal of the van from the site with its associated signage) Mr Korana, the First Respondent, in the past week has caused the van to be entirely removed from the subject premises. There does remain some small sign advertising "Doner Kebabs" but that matter appears to be a very minor matter indeed. 32. It was in these circumstances that I granted the Council an adjournment for its Solicitor to obtain instructions as to whether the van had been removed from the subject premises and what orders the Council would seek in the proceedings. 33. As I have said, the Council claims the prohibitory injunction, together with a mandatory order in relation to the signage previously displayed in connection with the Doner Kebab mobile van. 34. In my opinion, there is no utility in granting any injunctive relief, prohibitory or mandatory, in the light of events as they have unfolded. The facts are clear that from 16 August 2000, when the interlocutory injunction was granted, the use of the mobile van ceased and has never been revived. 35. The matter remained fluid and unresolved because of the pendency in this Court of the Class 1 appeal against the Council's refusal to extend the time for the use of the van but that uncertainty was dispelled when on 16 March 2001, Talbot J dismissed those proceedings for want of prosecution. Thereafter, as the Council's Solicitor frankly has said, the matter has been brought to Court simply to finalise the Class 4 proceedings. 36. Normally when a matter comes to Court in these circumstances it will be appropriate to make final injunctive orders, if occasion and cause for such remedy is made out, but here, the fact is the unlawful use has not been evidenced for the past eight months and the van has now been removed from the site. There is no prospect of its return. The parties are well aware of the obligations to obtain Council permission and that permission being sought but not obtained, an appeal having been filed in this Court but not being prosecuted, there can be no question that all parties, that is, the former operator of the business, the lessee and the owners of the property, are well acquainted with their respective obligations to comply with the planning law. I am satisfied that in the circumstances of this case that no relief is required in terms of injunction or declaration. 37. This leaves outstanding the Council's costs claim in circumstances where it has not been disputed that the use of the premises after the limited time consent came to an end, has involved a breach of the planning laws and in particular, a breach of the EP&A Act. 38. The first Respondent, who has not had the benefit of legal representation today, has made submissions to the Court concerning the devastating effect upon his financial capacity, of the business being closed down. He has made submissions that the business was an "innocent" business and a lawful business, but one which unfortunately attracted young people who created problems in the local community both for amenity and safety leading to required police vigilance and police intervention. 39. I have sympathy for the first Respondent that that is how his business developed and I accept that his business was a lawful business of selling food and no more. However, it is clear, and it is has not been contended to the contrary, that after the time limited consent expired in January 2000 the use continued even after the proceedings were commenced on 26 May 2000 and so continued until the Council obtained the interlocutory injunction from Cowdroy J on 16 August 2000 in the contested interlocutory proceedings. 40. In the light of the outcome of those interlocutory proceedings and in the light of the subsequent history of the case (which has involved the dismissal of the Class 1 appeal for want of prosecution) the Council, in obtaining the interlocutory injunction on 16 August 2000, and having been successful in obtaining, albeit pursuant to the interlocutory injunction, ultimate compliance with the EP&A Act must be regarded as having been successful in the proceedings, and that by virtue of its success in the contested interlocutory injunction proceedings before Cowdroy J on 16 August 2000 and by virtue of the now full compliance with the EP&A Act (save for this incidental signage which to my mind is not a matter of any consequence) has had its claims satisfied, without the need for a final adjudication by the Court (save for the interlocutory proceedings in which the Council was successful). 41. I draw attention in this respect to the provisions of the Rules of Court, Pt 15 r 7, which state that the Court may order the Respondent to pay the costs of the proceedings where the Respondent satisfies or causes to be satisfied the claim of the Applicant after the proceedings have been commenced. 42. Understandably, the costs incurred in the proceedings were principally incurred up to, and including, the contested interlocutory injunction proceedings, and few costs have been incurred since then. 43. The Council's claim to costs is now effectively against the first, second, third and fourth Respondents, ie the operator of the business, the lessee of the premises and the two Directors of the lessee. As I say, the second, third and fourth Respondents have not appeared in the proceedings although I am satisfied that they were duly served and that they also knew about today's proceedings by virtue of the Council's Solicitors letter to them dated 29 March 2001. 44. In the circumstances, and for all the foregoing reasons, I order that the first, second, third and fourth Respondents pay the Council's costs in the proceedings in the sum agreed, or failing agreement, as assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.