Land and Environment Court of New South Wales CITATION : Marrickville Council v G & K Psakis Pty Limited [2004] NSWLEC 663 APPLICANT: Marrickville Council PARTIES : RESPONDENT: G & K Psakis Pty Limited FILE NUMBER(S) : 41301 of 2004 CORAM: Pain J KEY ISSUES: Interlocutory Relief :- Whether the balance of convenience favours the Court exercising its discretion to grant an interlocutory injunction LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 109B Marrickville Local Environmental Plan 2001 CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 DATES OF HEARING: 01/12/2004 DATE OF JUDGMENT: 12/01/2004 APPLICANT: Mr G. Christmas (solicitor) of Marrickville Council LEGAL REPRESENTATIVES: RESPONDENT: Mr G. Newport (barrister) with Mr B. Beules (barrister) instructed by John Peetz Solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 1 December 2004 41301 of 2004 Marrickville Council v G & K Psakis Pty Limited JUDGMENT 1 Her Honour: The Applicant has commenced class 4 proceedings seeking various orders in relation to the Respondent's use of Lot 1 DP 537653 known as 2 South Street, Tempe, as a transport business operating 24 hours a day. The premises are on the corner of South Street and Smith Street, Tempe. The Applicant has filed a Notice of Motion dated 11 November 2004 seeking the following interlocutory orders: 1. Until further order, the Respondent, its directors, employees and agents are restrained from using Lot 1 in Deposited Plan 537653 and known as 2 South Street, Tempe ("the Property") for any purpose outside the hours of 8.00am to 5.00pm Mondays to Fridays and 8.00am to 12.00 midday Saturdays with no use of the property to occur on Sundays and public holidays. 2. Until further order, the Respondent, its directors, employees and agents are restrained from carrying out any form of loading or unloading of vehicles outside the boundary of the Property. 2 Amended short orders were handed up this morning specifying in more detail the nature of orders sought. The amended orders were served on the Respondent yesterday afternoon and state that: 1. Until further order, the Respondent, its directors, employees and agents are restrained from using Lot 1 in Deposited Plan 537653 and known as 2 South Street, Tempe ("the Property") for the purpose of a transport company, including: (a) the movement of vehicles into and out of the Property; (b) the repair, washing and cleaning of vehicles; (c) the loading and unloading of vehicles except between the hours of 8.00am to 5.00pm Mondays to Fridays and 8.00am to 12.00 midday Saturdays with no use of the Property to occur on Sundays and public holidays. 2. Until further order, the Respondent, its directors, employees and agents are restrained from: (a) the parking or standing of vehicles associated with the Respondent's use outside the boundaries of the Property; (b) queuing vehicles associated with the Respondent's use in Smith Street; and (c) carrying out any form of loading or unloading of vehicles associated with the Respondent's use outside of the boundaries of the Property and in particular in Smith Street, South Street or Wood Street, Tempe. 3. Costs are reserved. The Respondent opposes the making of these orders. 3 Council relied on the evidence contained in affidavits sworn by: (a) Maria Divis, a town planner employed by the Council, on 17 November 2004 and 30 November 2004; (b) Charles Bigrigg, a council ranger, on 29 November 2004; (c) Rhonda Forsyth, a resident whose property is located approx 50m from the land, on 17 November 2004; (d) Emad Sawires, a resident whose property is located approx 40m from the land, on 17 November 2004; and (e) Sonja Black, a resident whose property adjoining the rear of the land, on 18 November 2004. 4 The Respondent relied on the evidence contained in the affidavits of: (a) George Psakis, who, with his wife, owns the Respondent company, sworn 30 November 2004; and (b) John Peetz, the Respondent's solicitor, sworn 30 November 2004. 5 I note that the principles governing the Court's discretion to grant interlocutory relief are set out by Mason J in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at [153] to [154]. In short, the principles which I must consider are: (a) whether there is a serious question to be tried or that the Applicant has made out a prima facie case; (b) that there will be irreparable injury for which damages are not adequate compensation; (c) that the balance of convenience favours the granting of an injunction. 6 The land the subject of these proceedings is zoned partly "9(a) Reservation (Local Open Space)" and partly "9(c) Reservation (Arterial Road and Arterial Road Widening)" under the Marrickville Local Environmental Plan 2001 ("the LEP"). The neighbouring land is zoned "2(a) Residential" and "4(b) Industrial" under the LEP and dwellings immediately adjoin the subject land. Is There A Serious Question to be Tried? 7 The activities currently carried out by the Respondent on the land are, according to the Applicant, prohibited under the LEP, hence these Class 4 proceedings. The Respondent commenced Class 1 proceedings earlier this year after the Council refused its development application seeking development consent for the current transport operations carried out on the land. These Class 1 proceedings were discontinued by the Respondent in October 2004. The Respondent's counsel conceded that the activities currently carried out on land are not protected by any existing use rights. 8 The Respondent is likely to argue at the final hearing that it is using the land in accordance with a development consent granted in 1954 for a wagon repair business, which consent did not have any limit on hours, and that this consent is protected by s 109B of the Environmental Planning and Assessment Act 1979. Given that these are interlocutory proceedings, this matter is not before me for final determination. However, to the extent that it can be determined at this stage, the Council appears to me to have a very arguable case. In this regard I note that the Respondent conceded that there is a serious question to be tried in these proceedings. The Balance of Convenience and Irreparable Injury 9 I note that the Council has declined to give an undertaking to pay damages. In my view this is not, in this Court, necessarily a bar to the issuing of an interlocutory injunction where, as here, the Council is seeking to enforce the environmental planning laws. Councils claiming that they are enforcing environmental planning laws should not, however, assume that interlocutory orders will issue despite their failure to provide an undertaking as to damages. The failure of the Council to offer an undertaking as to damages is a material matter going to the balance of convenience as the affidavit evidence of George Psakis is that if the Court grants the interlocutory injunction sought by the Applicant and imposes the hours of operation sought, the Respondent's business will fail. 10 The Respondent has argued that because of the impact which the proposed orders will have on the Respondent's business they should not be made, rather the status quo should continue. There are currently no hours of operation imposed on the Respondent's business via any development consent or any other instrument at all. The affidavit evidence of the residents and the Council's ranger suggests that the premises effectively operate on a 24 hour basis. Accordingly, if I make no orders at all today this situation can continue, a less than satisfactory state of affairs for the local residents. 11 While the Respondent argued that noise impacts cannot be regarded as irreparable harm, the impact on residents is clearly substantial given not only the substantial noise impacts arising from the activities at the premises but also the impacts of the trucks entering and leaving the premises. In addition to noise and fumes, access by the trucks is particularly problematic as they have to turn into a nearby street, Wood Street, and reverse into and along Smith Street for a reasonable distance before gaining access to the premises. During this operation traffic is prevented from moving along the street at all and this, presumably, poses a significant traffic hazard to other users as it is not clear that the Respondent exercises any control over truck movements during these procedures. 12 The Respondent argued that the balance of convenience favours the Respondent as the Council has delayed in seeking these interlocutory orders but I do not agree. The Council sensibly allowed the Respondent to pursue its development application and the Class 1 proceedings, which the Respondent chose to discontinue, before commencing these Class 4 proceedings. Since commencing these Class 4 proceedings on 22 October the Council promptly filed its Notice of Motion seeking interlocutory relief. Conclusion 13 It is the Respondent's evidence that the hours of operation sought by the Council will have such a major impact on his business that he is likely to be forced to close. I agree with the submissions of his counsel that had these been final orders the Court is likely to have afforded to the Respondent a period of grace in which to move his business were this to become necessary. These interlocutory orders should not forestall the making of appropriate final orders by effectively forcing the Respondent to close his business forthwith. 14 The Council has not offered an undertaking to pay damages and, while I accept the Council's argument that the hours of operation cannot continue unchecked until the hearing, I do not consider I should limit the hours to the extent sought by the Council. The orders sought by the Council would confine the Respondent's operations to between 8 am and 5 pm Monday to Friday and 8am to 12 midday on Saturdays as that reflects the residents' uncontested evidence as to the hours previous businesses operated on the land. The affidavit evidence of George Psakis is that the business carried out by the Respondent company needs to operate for longer hours, at least 6 am to 7 pm Monday to Friday and 7am to 2 pm Saturdays plus truck movements outside these hours to stay in business. The Respondent's counsel, who indicated that the Respondent still opposed the making of any orders, handed up at 2 pm today amended orders in the terms sought by the Council but reflecting the hours sought by the Respondent. As a concession to the Council's concerns, these amended orders did not permit truck movements outside the specified hours. 15 I will make the orders devised by the Respondent and handed up at 2pm today which allow longer operating hours than I consider would normally apply in these circumstances. Had the Council given an undertaking as to damages I would have been minded to make the orders sought by the Council. These hours are temporary only, pending a final resolution of the matter, as they are still likely to result in adverse impacts on neighbours in the early hours of the morning in particular. I consider that this matter must proceed expeditiously. To this end a timetable for the prompt filing of pleadings, if needed, and evidence should be made today and hearing dates obtained promptly as it appears the final hearing will take one day. I will not formally order expedition as I do not think that is necessary as it is likely an early hearing date can be obtained in any event. Orders 16 The Court orders that: 1. Until further order, the Respondent, its directors, employees and agents are restrained from using Lot 1 in Deposited Plan 537653 and known as 2 South Street, Tempe ("the Property") for the purpose of a transport company, including: (a) the movement of vehicles into and out of the Property; (b) the repair, washing and cleaning of vehicles; (c) the loading and unloading of vehicles except between the hours of 6.00am and 7.00pm Mondays to Fridays and 7.00am to 2.00pm Saturdays with no use of the Property to occur on Sundays and public holidays. 2. Until further order, the Respondent, its directors, employees and agents are restrained from: (a) the parking or standing of vehicles associated with the Respondent's use outside the boundaries of the Property; (b) queuing vehicles associated with the Respondent's use in Smith Street; and (c) carrying out any form of loading or unloading of vehicles associated with the Respondent's use outside of the boundaries of the Property and in particular in Smith Street, South Street or Wood Street, Tempe. 3. Costs are reserved. 4. The Applicant is to file and serve Points of claim and any affidavits or other documents on which it intends to rely by 8 December 2004. 5. The Respondent is to file and serve Points of Defence and any affidavits on which it intends to rely by 20 December 2004. 6. The proceedings are listed for mention before the Registrar at 9am on 7 December 2004 for the purpose of obtaining a hearing date for a one day hearing. 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