Land and Environment Court of New South Wales CITATION : Dungog Shire Council v B and E Clarke [2009] NSWLEC 16 APPLICANT Dungog Shire Council PARTIES : RESPONDENTS Bruce and Eileen Clarke FILE NUMBER(S) : 40031 of 2009 CORAM: Sheahan J KEY ISSUES: INTERLOCUTORY RELIEF :- Injunction, development without consent, risk of fire CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Grace and Another v Thomas Street Cafe Pty Ltd and Others (2007) 159 LGERA 57 DATES OF HEARING: 12 February 2009, 13 Februry 2009 EX TEMPORE JUDGMENT DATE : 13 February 2009 APPLICANT Mr P W Larkin SOLICITORS Sparke Helmore LEGAL REPRESENTATIVES: RESPONDENT Mr C Ireland SOLICITORS O'Sullivan Saddington JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J February 2009 40031 of 2009 Dungog Shire Council v B and E Clarke EXTEMPORE JUDGMENT 1 His Honour: Bruce and Eileen Clark (correctly spelt without an "e" on the end) conduct the historically significant Bank Hotel in Dungog, built in 1876. There is also a "Royal Hotel" in Dungog. 2 The Bank Hotel has operated lawfully since April 1892 and Mr Clark has held the licence since 5 December 2001, having bought the hotel in September 2001. 3 The Clarks recently decided to shift their takeaway packaged liquor or bottle shop business out of the bar area of the main hotel building to a long-established out-building or "old shed" on the hotel site, quite close to the beer garden. 4 The subject building has had many uses over time including as stables, garage or storage. It adjoins a service station/car dealership, and is accessed by a gravel drive-through formerly available for patron parking. It is suggested that the petrol bowsers are as close as 3 metres from the shed. 5 The site is zoned 3(a) Business and the Council takes the view that a specific development consent under Dungog's 2006 Local Environmental Plan is required for the use of the outbuilding for this purpose. Council has taken a consistently hard line on the matter, and seeks an interlocutory injunction to close the bottle shop until consent is obtained. 6 The Respondents contend that the operation enjoys the appropriate liquor licence and that they are entitled to the benefit of s 109 of the Environmental Planning and Assessment Act 1979, as the so-called "shed" is "part and parcel" of the hotel and has for probably more than 100 years been used for various relevant purposes "ancillary" to the hotel use. 7 They say that all they have done is carry out an internal rearrangement of the hotel use which occupies the whole site, and reference is made to a decision by Hulme J in Supreme Court matter no 30151 of 2008, on licensing aspects of the hotel's operation, dated 19 December 2008, and to having advice from counsel favourable to their contention. 8 The three-limb test in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 must be satisfied. There must be (1) a serious question to be tried, (2) some injury threatened which is not reparable by damages, and (3) the balance of convenience must be found to favour the Court's intervention. 9 The parties do not agree there is a serious question to be tried, and Council concedes that the use of the main building as what might be termed a traditional hotel enjoys continuing use rights under s 109. 10 The Council justifies interlocutory relief by asserting a lack of fire safety, and there is before the Court competing expert evidence on that question, and on the applicability of the Building Code of Australia. 11 Characterisation of existing, continuing or proposed uses is never free of difficulty, and a perusal of some of the leading authorities, a recent example being the various stages of the Thomas Street Café litigation [see (2007) 159 LGERA 57, and c.f. Lloyd J and Beazley JA] amply demonstrates this. 12 Both sides of the present argument have elements to attract the support of an adjudicator of the s 109 question, and both Mr Ireland and Mr Larkin have argued, in both written and oral submissions, forceful cases for their respective clients' position to be affirmed. 13 Either set of submissions could well succeed at trial, but, for my part, at this stage of the proceedings, I am not convinced that the answer is quite so straightforward in either direction, and I am satisfied for the purposes of the question of interlocutory relief that there is a serious question to be tried. 14 Turning then to the second limb of the test, no undertaking as to damages having been proffered by the Council in this case, the Respondents contend that the public law, the public good and the environment are not harmed by continuation of the use of the shed for a bottle shop. It is true that some impact issues which would normally be closely investigated when a development application is assessed may escape attention if the use is allowed to continue, but I am not satisfied that irreparable damage will flow from any refusal of interlocutory relief as such. 15 So far as the balance of convenience is concerned, I am satisfied from the evidence that a close-down order will impact adversely on the Respondents, their employees and some third parties, and I note the Respondents' concern that there has been some degree of "unfairness" in the Council's treatment of their operation. Mr Ireland argues that it could amount to equitable acquiescence, which might sound in a finding that Council acted more to assist the Respondents' packaged sales competitor (an IGA supermarket and bottle shop) than in the public interest. 16 Overall, I agree with Mr Ireland's comments (submissions at [49]-[50]) that the balance of convenience is fairly evenly balanced. However, the primary issue put by Council is that apparent or constructive non-enforcement of its concerns about fire might cause irreparable damage. This is a matter of enormous public interest and concern. 17 Council has a serious public duty in respect of these matters. The Respondents must be sensitive to its concerns and those of the public, and the court has now heard the expert evidence. 18 The changes in circumstances – more people in and near the shed, installation of motors, and greater load on the electrical system – increase the risk of fire. It may indeed remain a remote risk, and the Respondents' expert clearly considers it an "acceptable" risk, but the petrol bowsers are very close, and the response of the local fire brigade cannot be guaranteed to be prompt enough, nor indeed as prompt as Mr McGufficke expected prior to giving his oral evidence. 19 I accept the expertise of Mr McGufficke on these matters, but I do not believe the court can ignore the concerns of the Council. The amount of expenditure required to satisfy the Council's fire concerns is within reasonable bounds, given the evidence of Mr Clark about the economic circumstances of the hotel. 20 Accordingly, I have decided to grant the injunction sought in the Notice of Motion, namely that until further Order, the Respondents, by themselves, their servants and agents, are restrained from using any part of the land known as Lot 1 DP 75472, also known as 270 Dowling Street, Dungog, for the purpose of a bottle shop. 21 I grant the Respondents liberty to apply in the event of their taking the measures envisaged by the experts to acceptably reduce the risk of fire. 22 I reserve the question of costs at this stage. 23 Exhibit A1 and Exhibit A2 can be returned, but Exhibit R1 (the questions for the experts' joint conference) should remain in the file. 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