Marrickville Municipal Council v Angelucci & Ors [1988] NSWLEC 134

Land and Environment Court of New South Wales

CITATION : Marrickville Municipal Council v Angelucci & Ors [1988] NSWLEC 134 APPLICANT Marrickville Municipal Council

FIRST RESPONDENT Giovanni Angelucci

PARTIES : SECOND RESPONDENT Wanda Angelucci

THIRD RESPONDENT Aquilino Zol

FOURTH RESPONDENT A&G. Formwork Contractor Pty. Limited FILE NUMBER(S) : 40086 of 1987 CORAM: Holland J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 F.Hannan Pty. Limited v. Electricity Commission Of New South Wales, (1985); Warrington Shire Council v.Sedeucic, (1987); CASES CITED: A.C.R Trading Pty. Limited v. Fat-Sel, (1987); Waltons Stores(interstate) Limited v. Maher, (1988); North Sydney Municipal Council v. Ekstein, (1985) DATES OF HEARING: 01/04/1986, 09/03/1988 DATE OF JUDGMENT: 08/29/1988

APPLICANT Mayor Mr Arnett RESPONDENT LEGAL REPRESENTATIVES: Mr Angelucci Mr Messrs Mr Augeung Mr Gambovo Mr Nesa

JUDGMENT: HIS HONOUR: The applicant Council seeks an injunction to restrain the respondents from using land known as 6-20 and 28 Grove Street, Dulwich Hill, for the purposes of manufacturing, storing, repairing, handling and transporting building formwork. The first four respondents own the land and are the directors and shareholders of the fifth respondent which uses the land for the stated purposes in the course of carrying on an extensive business of supplying, erecting and removing formwork for those engaged in the building industry. The land is presently zoned Residential B2 under the Marrickville Planning Scheme Ordinance (as amended) and the use of it for the above purposes is absolutely prohibited by the Ordinance. The respondents are obliged to accept that their present use of the land is unlawful; but, after abandoning all other claims for relief which they made in these proceedings by way of cross application, they seek to persuade the Court to exercise its discretion by refusing the injunctive relief sought by the Council on the ground that they have been put in their present position by unconscionable conduct on the part of the Council and its officers. <P> <P>The land in question, Nos. 6-20 and 28 Grove Street, are contained in a block bounded at the back by a railway line, at one side by a short dead end spur of <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road, at the other side by a section of Hill Street and at the front by Grove Street. <P> <P>Fronting <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road, numbering from Grove Street, are properties Nos. 72 to 64 and one end of a right angled block, No. 28 Grove Street, which runs from Grove Street behind Nos. 72 to 64 and along one side of No. 64, adjoining it and having access to <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road. <P> <P>Fronting Grove Street numbering from Hill Street, are properties Nos. 2 to 28. <P> <P>The land lying between the rear boundaries of Nos. 2 to 28 Grove Street and the railway line was at material times owned by the State Rail Authority. That land had a boundary at one end at <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road and at the other at Hill Street from which access was possible to both the State Rail Authority's land and the rear of Nos. 2-28 Grove Street. <P> <P>The railway's land was zoned Special Uses "B" (railways) and, with the Council's consent, could be used for any purpose. <P> <P>Until 30 January 1987, the rest of the land in the block was zoned Light Industrial 4(b) and, with the Council's consent, could be used for any purpose except certain listed purposes not presently relevant. Under that zoning the respondents' activities on the subject land were not within the excepted purposes and were susceptible of consent by the Council; but that zoning was altered to Residential B2 by the Marrickville Local Environmental Plan No. 32 made by the Minister for Planning and Environment on 20 January 1987 and published in the Gazette on 30 January 1987. <P>The properties in Grove and Hill Streets opposite the block of properties just described are residences and the area there is zoned for residential purposes. There is a triangle of land opposite <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">the Constitution</A> Road properties mentioned which is zoned light industrial and contains a factory. On the railway land at the rear of the Grove Street properties at the Hill Street end is Andrews Meat Works. <P> <P>The respondents claim to have been induced by action and positions taken by the Council and its officers to expect to receive development approval under the <U><A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment Act</U>, 1979</A>, for their operations on their land before the rezoning of the land took place and were led by such conduct to incur substantial expenditure, acquire land and establish an extensive business and refrain from taking courses of action open to them to protect their interests before the rezoning was gazetted. <P> <P>The respondents had obtained on 27 January 1984 in respect of the properties, Nos. 8 to 20 development approval (D.A. No. 3/84) to demolish a free standing dwelling and three single storey terrace houses and use the land for the erection of a warehouse with offices for the purposes of storage of concrete formwork, equipment and machinery. <P> <P>The respondents allege that, by neglect amounting to reckless conduct on the part of a Council officer, an application they made for extension of time under <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s99.html ">s.99</A>(3) of the <U>E.P.A. Act</U> was never dealt with by the Council when it would have been granted, with the result that the approval lapsed. They claim that during the time that it would have been possible to appeal to this Court under <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s99.html ">s.99</A>(4) against the Council's neglect to determine their application, they were diverted from doing so because they were led to believe that other development approvals being sought by them in relation to the same land would be granted. Likewise they were diverted from commencing the development for which they had approval. <P> <P>In particular the respondents claim that the Council engaged in acts of duplicity at a critical time in the course of dealing with their development applications. When the only remaining obstacle to approval was a consent from the State Rail Authority to use the railway land at the rear of the properties for access from Hill Street, the Council sought to sabotage the respondents' efforts to obtain such consent by privately making to that Authority representations calculated to lead it to refuse consent. Meanwhile, it is alleged that the Council continued to hold out to the respondents that approval to their development application would be given if only they could obtain the State Rail Authority's consent. <P> <P>The respondents allege that delays caused by the Council's intervention resulted in their failing to overcome the only obstacle there was to approval until it was too late. They finally obtained the S.R.A. consent but the rezoning had already taken place. They say that, but for the Council's underhanded dealings with the S.R.A., they would have succeeded in having established existing use rights before the rezoning. <P> <P>The respondents also claim that an appeal which they began in this Court against the Council's neglect to decide their development applications was not prosecuted to a hearing because of endeavours to resolve the matter out of Court which, it is said, the Council's attitude led the respondents to believe would succeed. The appeal had to be discontinued when the rezoning of the land made it useless to proceed with it. <P> <P>There are other considerations relevant to the question of injunctive relief to be mentioned later but the foregoing are the principal allegations to which the facts relate. <P> <P>It appears that the respondents first came into the area in 1966-1967 when they bought Nos. 24-26 Grove Street and, after some years, in the early 1970s apparently, they began using parts of that land for the storage of formwork. No. 24 presently contains a two storey brick factory building and No. 26 is vacant land. Both properties are leased to Entreat Pty. Limited, a company the shares of which are held by the first and third respondents. <P> <P>Up to the early 1980s the storage of formwork was a relatively minor activity but began to assume larger proportions as the respondents acquired other properties in the block. Shortly prior to 1981 they purchased Nos. 6, 8 and 14 for $40,000 each. Between 1981 and 1983 they purchased Nos. 16, 18 and 20 for $47,000, $40,000 and $40,000 respectively. After the purchase of these properties, their use of their land and buildings in the block for the storage, handling and treatment of formwork began greatly to increase. <P> <P>In 1983 the respondents engaged on Architect, Mr. Auyeung, to prepare and make a development application for the use of Nos. 8-14 Grove Street to erect a warehouse with offices and car parking but, having acquired also Nos. 16-20, the plan was amended to cover Nos. 8-20. This application was not approved for reasons not material and was then amended to overcome the Council's objections. This amended application was approved and became the Development Approval No. 3/84 covering Nos. 8-20 granted 27 January 1984 already mentioned. <P> <P>The grant of development approval for Nos. 8-20 seems to have been a starting point for the course of action that ensued over the next two years or so. <P> <P>Three matters emerged which were to have a continuing influence on subsequent events. First, from early 1984, the Council received complaints from Grove Street residents of noise, dust and disturbance from the respondents' operations. Second, Council officers pointed out that, although the respondents' activities were a conforming use of their lands, they were unlawful without Council consent and should be made the subject of applications for development approval. Third, Council town planning officers expressed the view that, having regard to their multiple ownership of properties in the block proposed to be wholly or partly put to the same use, the respondents should submit comprehensive plans for the whole of their lands to be developed as an overall scheme instead of piecemeal applications for each individual property. These views were imparted to Mr. Auyeung who passed them on to the respondents. <P> <P>The three matters came to provide contradictory themes that continued throughout the relevant period and led the Council into taking apparently ambivalent positions. On the one hand the Council was telling the respondents they should stop what they were doing whilst on the other the Council in fact took no action to cause them to stop. Further, whilst conveying to the respondents their concern about residents' objections to their activities, the Council was advising the respondents that they should not only apply for development approval for what they were doing, but should apply for it comprehensively to cover all their properties at once. <P> <P>I will endeavour to summarise what took place between January 1984 when the development approval for 8-20 Grove Street was given and the end of April 1986 when rezoning of the land came to be mooted. <P> <P>On 5 November 1984 the Council gave notice to cease using for the storage of formwork the properties Nos. 8-20 and 26 Grove Street and also railway land at the rear of those properties. As to the last mentioned, the respondents had at the time a licence from the S.R.A., dating from 17 June 1980, to use an area of railway land at the rear of No. 24 Grove Street for the storage of building materials and a right of way for access over railway land from Hill Street adjoining the rear of Nos. 2-24 Grove Street. <P> <P>At about the same time as the above notice was given the Council's Deputy Town Planner was advising Mr. Auyeung that the respondents should apply for interim consent to the storage of formwork on the existing areas of their land until the whole site could be developed as an overall scheme. <P> <P>On 3 May 1985 the repondents, encouraged by the prospects of an overall development of the area, purchased No. 28 Grove Street (for $435,000) and also No. 64 <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road which adjoined No. 28 at its frontage to that road. <P> <P>Following this purchase, Mr. Auyeung had discussions in 1985 with Council officers as to what was required for the comprehensive plan of development of the lands acquired by the respondents. <P> <P>At the same time, the respondents did not wish to lose the benefit of the development approval No. 3/84 which, unless extended, was due to expire on 27 January 1986. With this in mind, their solicitor Mr. Nesci wrote to the Town Clerk on 23 October 1985 a letter in these terms:- <P> <P>"Re: Development Application No. 3/84. <P>G. & W. Angelucci and A. & M. Zol relating to 8-20 <U>Grove Street, Dulwich Hill.</U>________________________ <P>Reference is made to the development consent in this matter dated the 27th January, 1984 and have been instructed by the applicants, for whom we act, to ask for an extension of time in view of the fact that comprehensive discussions are taking place between the Council and the applicants in relation to the development of all the properties in the street owned by our clients, but the same time our clients do not wish to lose their rights under the present development application." <P> <P>This letter came to the hands of the Council's Chief Town Planner, Mr. Arnett, who claims to have treated it, not as a present application for an extension of time under <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s99.html ">s.99</A>(3), but as notice of an intent to make such an application at some time in the future. <P> <P>In consequence of his view of the letter, it progressed no further except to be filed in a general file where it was destined to excite no further action and to be forgotten. He neither acknowledged receipt of it nor made nor instigated any inquiries of Mr. Nesci with regard to it. Although the letter was received within about three months of the expiry date of the approval, the date of which was expressed in the letter, he virtually ignored it and had it filed where no one else was likely to pay any regard to it either. <P> <P>Meanwhile, Mr. Auyeung's discussions led to a meeting at the Council's chambers at which Mr. Arnett, Mr. Auyeung, the first respondent (Mr. Angelucci) and the Manager of the fifth respondent (Mr. Gambotto) was present. This meeting was to lead to the lodgment of three development applications, so I will mention relevant points made at the meeting. <P> <P>First, Mr. Arnett said that the Council felt that what was contemplated by the respondents was really a "block development" and called for a comprehensive plan to include Nos. 28 and 6-20 Grove Street. <P> <P>Second, Mr. Angelucci said, so he claims, that they did not want to lose the consent they had for Nos. 8-20 and had already instructed their solicitor to apply for an extension of the time for that development to commence. In evidence, Mr. Arnett said that he did not recollect this being said but he did not deny it and I see no reason to reject Mr. Angelucci's evidence. In the circumstances, with time running out and the Council calling for applications to include other properties to be dealt with at some uncertain future date, it would be perfectly natural for Mr. Angelucci to be concerned about preserving the value of the approval already obtained and to say what he claims to have said. <P> <P>Third, Mr. Angelucci said, in relation to a comprehensive plan, that he would prefer to include Nos. 24-26 and would instruct Mr. Auyeung to prepare plans accordingly. <P> <P>On 14 November 1985, Mr. Auyeung, having drawn plans with a view to responding to the Council's view that a "block development" was involved wrote to the Council an explanatory letter which included statements to the following effect:- <P> <P>l. The respondents owned Nos. 6-20 and 24-28 Grove Street and 64 <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road and wished to use them for the storage of formwork, No. 24 temporarily till they could find a tenant for the factory building on that property. <P> <P>2. All vehicle access would be from the right of way at the rear and <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road. <P> <P>3. That, if in 10 years time they ceased their formwork business, they would redevelop the whole of the properties into "an industrial complex". <P> <P>4. At present they did not own No. 22 but would acquire it and consolidate it with the others if it could be secured at a reasonable price. (No. 22 is owned by a motor car tyre wholesaler called Avon Tyres, still in business). <P> <P>On 13 December 1985 the respondents lodged with the Council three development applications as follows:- <P> <P>D/A 493/85 - 6-20 Grove Street - Area C designated on overall plan - seeking development approval for the use of a residence on Nos. 12-14 by a caretaker and for the use of the remainder of the land in Nos. 6-20 for the storage of formwork with access from the rear of those properties via a right of way over railway land from an entrance in Hill Street. <P>D/A 494/85 - Nos. 24-26 Grove Street - Area B on overall plan. <P> <P>D/A 495/85 - No. 28 Grove Street - Area A (shown on overall plan as including an area of railway land and No. 64 <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road). The approval sought was for the use of the land for storing, sorting, repairing, loading and unloading formwork with access for that purpose from the rear across railway land from <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road. <P> <P>27 January 1986, the date of expiry of development approval 3/84, passed without further action on the part of the respondents who by that time were concentrating their attention on the abovementioned three development applications. <P> <P>However, notwithstanding the lodgment of those applications, the Council on 17 February 1986 gave notice to the respondents to discontinue using all of the properties the subject of those applications for the storage of building formwork. <P> <P>On 18 February 1986 a development application D/A 52/86 was lodged in the name Entreat Pty. Limited in respect of Nos. 24-26 Grove Street for approval to use the property for the warehousing of steel components and the light manufacture thereof. That approval came to be given on 9 July l986. These properties are not the subject of the present application, no doubt because of that development consent. <P> <P>On 25 February 1986 Mr. Arnett wrote a report on the three development applications. In relation to Nos. 6-20 Grove Street he noted that the development approval given in respect of Nos. 8-20 had lapsed. The report stated that further traffic details and the proposed ingress and egress for traffic was required and he noted that access was proposed by use of a right of way over the railway property from the rear of the property. He recommended that any consent be limited to 12 months and be subject to reconsideration after a trial period. He also called for certain water calculations to be submitted with any building application in relation to the properties. He recommended, finally, that consideration of the application be deferred with the other two development applications for the purposes of an inspection by the Town Planning Committee and that meanwhile the applicants be requested to supply traffic and drainage details. <P>In relation to No. 28 Grove Street, Mr. Arnett's report drew attention to the proposal to use an undefined area apparently leased from the State Rail Authority and he made similar recommendations as for Nos. 6-20 for a 12 months' trial and for further consideration of the matter to be deferred and for any approval given to be subject to, amongst other things, the water calculations. <P> <P>The report dealt with Nos. 24-26 but need not be pursued except to note that Mr. Arnett drew attention to the proposal to use the right of way over the railway land at the rear for access and suggested that the applicant be advised to provide details relating to traffic, ingress and egress. <P> <P>As to all three applications, Mr. Arnett recommended that they be considered together with traffic considerations and other matters to be integrated between all three properties. <P> <P>On 1 March 1986 a site meeting arranged for the benefit of the Town Planning Committee was held at the properties with Mr. Arnett in attendance as the Chief Town Planner for the Council and Messrs. Angelucci, Gambotto, Nesci and Auyeung representing the respondents. <P> <P>Whilst raising a number of issues, the Committee did not appear hostile to the proposed development of the site. One member of the Town Planning Committee said, without dissent, "You will need to reduce noise problems and to ensure that the formwork stored on the land will not be visible from the street, and you should landscape the site pending resolution of the ultimate plan for the whole of the site". <P> <P>At the end of this site meeting Mr. Gambotto asked Mr. Arnett what was the next step to be taken and Mr. Arnett explained to him that the Committee would now consider the various issues such as drainage, landscaping and access and the Council would tell the respondents exactly what was required and the respondents would supply that information; thereafter, the matter would proceed quite quickly. He also expressed the view to Mr. Gambotto that it was quite clear that the development could not be split up and must be looked at as a whole. <P>On 3 March 1986 the Council wrote to the respondents stating that at its last meeting it had considered a petition by a number of residents of Grove Street complaining about continued noise and after hours operations at the company's properties. The letter stated that the Council was in the course of considering 3 development applications from the respondents, a decision on which had been deferred subject to inspection of the premises and went on to say:- <P> <P>"In the meantime I wish to advise that the Council regards the activities of your company as being unacceptable and that any use of the premises before 7.30 a.m. or after 5.30 p.m. Mondays to Fridays or 7.30 a.m. to 1.00 p.m. Saturdays will result in immediate action being taken by Council's solicitors for the cessation of the use of the premises. <P> <P>If after the 3 March 1986, no improvement has occurred in the operation of the premises, then Council's solicitors will be instructed to restrain the use of the premises for any purpose by action through the appropriate court." <P> <P>I think that it is significant that in this letter whilst the Council is responding to the complaints of residents, its demand upon the respondents is not that the operations cease but that they be kept within the stated hours and the threat of action is not expressed to relate to use of the land in breach of town planning restrictions but to the manner and hours of operation occasioning noise and disturbance. The Council's letter calls for improvement and not cessation of the operations. <P> <P>On 19 March 1986 the Town Clerk wrote to the respondents to say that the Council had considered the 3 development applications following the Town Planning Committee's inspection and had resolved to hold a conference to discuss them. A meeting at the Council chambers was arranged for 1 April 1986. <P> <P>On or about 1 April 1986 and before the meeting took place Mr. Auyeung prepared drawings to show the provision of high fences on the Grove Street side of the relevant properties designed to conceal the stored formwork from residents and persons in and opposite the premises in Grove Street and showing the location and nature of landscaping proposals to meet the objections and comply with the suggestions made to the respondents at the site meeting with the Town Planning Committee on 1 March 1986. <P>At the meeting at the Council Chambers on 1 April 1986 the Council was represented by the Mayor, the Chief Town Planner (Mr. Arnett), some Aldermen and other persons. The respondents were represented by Mr. Angelucci and Messrs. Auyeung, Gambotto and Nesci. <P> <P>Mr. Auyeung produced his drawings which, in addition to the ideas put forward for fencing and landscaping to which I have referred, showed the proposed means of ingress and egress at <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road and Hill Street and, in relation to traffic flow the number of trips and the percentage use at the two access points. <P> <P>The discussion at the meeting ranged over parking, entrances, traffic movement and the desirability of all of the respondents' Grove Street properties being developed as a whole. It also raised the question of the leasing from the State Rail Authority of the railway land at the rear proposed to be used for storage and access. <P> <P>At this meeting, the Mayor said to the respondents' Architect, Mr. Auyeung, "You should proceed with the landscaping and fencing works shown in your plans so that consideration and approval can be given to the overall plan for the sites". I note that the evidence for the respondents that this statement was made was not contradicted by evidence tendered on behalf of the Council. <P> <P>Mr. Gambotto said to the Mayor, "If we provide you with this information you have requested in detail what is the attitude of Council?" The Mayor replied, "If you carry out the landscaping and drainage, we will proceed with approval". That evidence too is not contradicted by evidence tendered for the Council. <P> <P>At the end of this meeting, Mr. Angelucci spoke to the Chief Town Planner, Mr. Arnett. He said, "This matter is dragging on, we will give all the information the Council wants but we want the matter to be dealt with as quickly as possible". According to Mr. Angelucci, Mr. Arnett replied, "The most important thing is that you provide us with details about the issues discussed here tonight and provided that you address your mind to those issues, Council will look at your matter very favourably". Mr. Angelucci, immediately after the meeting, instructed Mr. Auyeung to provide comprehensive answers to all of the points raised at the meeting. <P> <P>Mr. Arnett gave evidence denying that he used the words "very favourably". His version was that his reply took the form, "In the end it is a matter for the Council to decide; but there are some problems not solved in your present application. We will write suggesting ways you could change your application so that Council might consider them more favourably. The present proposal and your current method of operation is unsatisfactory". <P> <P>Too much store cannot be placed upon recollections of exact words used in conversations at such a meeting. Recollections tend to lean towards a party's point of view as to the outcome of the discussions. I have no doubt that Mr. Angelucci was left by Mr. Arnett with the impression that if the points raised by the Council representatives were dealt with satisfactorily, the Council would be likely to approve the development applications. Even on Mr. Arnett's version, the impression given of his and the Council's likely attitude is encouraging. He is forecasting co-operation and assistance on the Council's part in suggesting ways in which the application might be modified to attract the favourable consideration of the Council. There is no suggestion of any overall hostility to the proposed development on town planning consideration. <P> <P>Consistently with what Mr. Arnett had indicated, the Council on 2 April 1986 wrote to the respondents regarding the conference that had been held the day before requesting further detailed information to be provided regarding the 3 development applications. The information sought included (item 6) details of the leasing arrangements with the State Rail Authority for use of the railway land at the rear of the properties and (item 8) details of the proposed screen to be provided. The letter noted that it had been agreed at the conference that all of the information requested in this letter, except possibly drainage details, should be supplied by 8 April 1986. <P> <P>On 9 April 1986 the respondents wrote a letter to the Council referring to the three development applications, the earlier site meetings and meetings with the Council's Committee and the matters raised on these occasions and setting out to deal with the whole of such matters and provide all of the information requested by the Council. The letter expressed recognition of the problem arising out of land zoned Light Industrial bordering on residential properties and of the difficulties with residential occupiers thereby arising. As to this the letter proposed full co-operation with the Council so as minimise as much possible any inconvenience to residents. <P> <P>In dealing with problems created by traffic movement, the letter drew attention to the fact that trucks used by the Andrews Meat Works and the Avon Tyre Company contributed to the problem and explained the respondents' traffic movements and their plan to use <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road as the principal means of access with minor access from Hill Street. As this involved use of railway land, the letter stated:- <P> <P>"We are currently discussing with the State Rail Authority the future of the whole of the land. It is our intention, if successful, to obtain extra land as shown on drawing lA and if this eventuates we will come through <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road exclusively." <P> <P>The letter further explained in relation to railway land that it was not closed off from the public with the result that members of the public frequently dumped general rubbish on the land. The letter stated that the respondents were currently discussing with the State Rail Authority the question of its land presently not leased and that if such land came to be leased it was proposed by the respondents to put a fence as marked on the drawings to stop the public gaining access for the dumping of rubbish. <P> <P>In relation to landscaping, the letter stated that in view of the complaints of unsightliness for viewers of the properties facing Grove Street, it was proposed to landscape the fronts of those properties as shown by the drawings. <P> <P>Apart from the foregoing, the letter sought to cover all of the ground on which the Council had raised questions and concluded by thanking the Council for its co-operation in resolving the problems raised and extending an apology for any inconvenience caused to the residents and to the Council in the past. <P> <P>Consistently with the conciliatory and co-operative attitude of the respondents exhibited by their letter of 9 April 1986, and in response to suggestions that had been put forward by the Town Planning Committee on l March 1986 and the Mayor of the Council at the meeting on 1 April 1986, the respondents, in anticipation of forthcoming approval of these 3 development applications, embarked upon works of landscaping, fencing and dust prevention whilst the development applications were still under consideration. <P> <P>At the end of April 1986 the respondents carried out landscaping at the frontages of the property at a cost of $6,000. In addition, they fenced the properties with high fencing to cut off views of the stored materials and the activities carried out on the properties facing Grove Street. This work cost $16,000. For the prevention of dust, they carried out works of compacting the soil of the trafficked areas and laying down gravel on the surface. This preparation of the ground for dust control cost $35,000. <P> <P>At the very time that the respondents were carrying out these works to conform with the Council's suggestions as to what would aid favourable consideration of their development applications and endeavouring to provide all of the information the Council had requested of them, and with their applications still unresolved, the idea of rezoning the block of properties in which the respondents' lands were situated in a way that would utterly defeat their development plans was born. <P> <P>Its origin appears to have been a suggestion by the Chairman of the Council's Planning Committee that the area be rezoned to Residential 2(a). It appears this suggestion was made to Mr. Arnett, the Chief Town Planner, who commented that such rezoning would be too restrictive and suggested that the land be rezoned Residental 2(b2) to permit medium density housing. In preparation for the pursuit of the rezoning idea, Mr. Arnett had a predominant uses survey done in May 1986. Mr. Arnett said that prior to May 1986 the Council had continued to receive complaints with respect to the operations of the respondents and Andrews Meats and that prior to 8 May 1986 there had been some discussions within the Council of the possibility of rezoning the land to exclude industrial use. <P> <P>On 8 May 1986 a plan for rezoning the area was drawn up showing the whole of the block except a very small area of land at the rear of No. 28 Grove Street to be zoned Residential 2(b2). The small piece at the rear of No. 28 was S.R.A. land that had been zoned Light Industrial 4(b) and that zoning was altered to "Special Use 5(b)(2) Railways". <P> <P>On 20 May 1986 Mr. Arnett wrote a report for consideration at a forthcoming Council meeting. The report referred to the three development applications and two petitions received from residents. The report recommended that the Council rezone the land presently zoned Light Industrial 4(b) generally to Residential 2(b2) to permit town house development. The report also recommended that the small triangular section opposite <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">the Constitution</A> Road properties zoned Light Industrial 4(b) should be rezoned to Residential 2(b2) to encourage the redevelopment of the site for town house development. As mentioned, that section presently contains a factory. It was recommended that the Council prepare a draft Local Environmental Plan to rezone the land as recommended and advertise the proposal in the local press. Incidental recommendations included the following:- <P> <P>"That a copy of the plan be forwarded to the State Rail Authority as adjoining land owner for comment and advice on when existing leases to G. & I. Angelucci and A. & M. Zol and Andrews Meats expire, and whether the Authority would agree to the rezoning of the above leased land to Residential 2(b2) in the future." <P> <P>The above report came before a Council meeting on 27 May 1986 when all of the recommendations of Mr. Arnett were adopted by the Council. <P> <P>It would appear that the respondents 'got wind' of the Council's rezoning proposal on the same day as the Council meeting resolved to adopt it, because on 27 May 1986 Mr. Nesci wrote to the Council requesting that a copy of the Draft Local Environmental Plan be furnished to him urgently. <P> <P>On 2 June 1986 the respondents' solicitors filed an application in this Court with respect to Nos. 6-20 and 28 Grove Street appealing against the Council's failure to deal with their development applications within the statutory period.