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. 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. 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. Fronting Grove Street numbering from Hill Street, are properties Nos. 2 to 28. 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. The railway's land was zoned Special Uses "B" (railways) and, with the Council's consent, could be used for any purpose. 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. 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. 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 <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment Act, 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. 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. 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 E.P.A. Act 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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:- "Re: Development Application No. 3/84. G. & W. Angelucci and A. & M. Zol relating to 8-20 Grove Street, Dulwich Hill.________________________ 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." 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. 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. 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. 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. 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. 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. 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:- 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. 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. 3. That, if in 10 years time they ceased their formwork business, they would redevelop the whole of the properties into "an industrial complex". 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). On 13 December 1985 the respondents lodged with the Council three development applications as follows:- 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. D/A 494/85 - Nos. 24-26 Grove Street - Area B on overall plan. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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". 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. 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:- "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. 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." 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. 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. 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. 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. 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. 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. 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. 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. 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. 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". 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. 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. 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. 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:- "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." 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. 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. 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. 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. 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. 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. 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. 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". 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:- "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." 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. 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. 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. On 3 June 1986 the respondents received from the Council a formal notice of the proposed zoning changes. With the publication of the Council's intention to rezone the land, the dealings between the respondents and the Council entered upon a new phase pursuing a number of parallel themes. Firstly, notwithstanding its rezoning proposals which would prohibit the proposed development, the Council kept alive the prospects of the respondents obtaining development consent before that happened by never rejecting their applications, but only deferring further consideration of them pending satisfaction by the respondents of specified requirements, such requirements being apparently not unsurmountable, thereby leaving the respondents with hopes and expectations of success. Secondly, at the same time as the Council was requiring further steps to be taken by the respondents to obtain consent to their operations, the Council continued to make threats of action to restrain the illegal use of the respondents' land but never followed them up by instituting any kind of legal proceedings. Thirdly, the Council whilst allowing the development applications to remain unresolved and requiring further steps to be taken by the respondents to satisfy Council's requests in respect thereof, pursued the procedures requisite for rezoning to take place including public exhibition, calling for and entertaining objections to the rezoning proposals. Fourthly, the respondents for their part, having commenced appeals in this Court against the Council's failure to decide their development applications, kept those proceedings alive without resolution by pursuing with the Council their development applications on the basis of the Council's apparent continuing willingness to entertain those applications notwithstanding its rezoning proposals. It is necessary to refer to the pertinent facts relating to each of these themes. In doing so, I think, some detail is unavoidable. On the first of these themes, the events fall roughly into three periods; first from early June to September 1986 during which time, it is alleged, the Council sought to sabotage the respondents' endeavours to obtain from the State Rail Authority consent to the use of railway land. That period ends with a refusal by the State Rail Authority to give such consent. The next period runs from that event to 11 November 1986 during which the direct effects of the State Rail Authority's refusal emerge in the form of the need to amend the development plans and the application for development consent and delays thereby caused to the progress of the development applications. That period ends with the respondents having discovered the Council's intervention in their dealings with the State Rail Authority which led to that Authority's refusal. The third period runs from that discovery to January 1987 when the rezoning became a fact by the gazettal of Local Environmental Plan No. 32 on 30 January 1987. In this period, the obstacles to a grant of development consent prior to 30 January 1987 were, for all practical purposes, reduced to one only namely, approval by the State Rail Authority to the use of a right of way at the rear of the Grove Street properties for the purposes of access from Hill Street. Even that obstacle was removed in substance leaving only a matter of form to be attended to. With as much brevity as the subject permits, the detail follows. June to 1 September 1986 In early June, prior to 11 June, Mr. Gambotto, having heard of the Council's rezoning proposal and having been instructed by the respondents to take the matter of their pending development application up with the Council, telephoned Mr. Arnett expressing concern and asking specifically what was the cause of the present delay in the Council dealing with the development applications. Mr. Arnett replied, "It appears that the delay now seems to be that we require you to get consent from the State Rail Authority in relation to the use of the land at the back and access from the back. We will write to you shortly giving you full details". Mr. Gambotto gave evidence that Mr. Arnett told him on this occasion that the absence of a consent by the State Rail Authority to the use of the land at the rear of the properties was the only obstacle to consent to the development being given by the Council. Mr. Gambotto said to Mr. Arnett, "Please try and do things as soon as possible". On 10 June 1986 the Council had a meeting at which it resolved in relation to the 3 development applications to adopt a report of Mr. Arnett which, amongst other things, referred to the application with respect to 24-26 Grove Street for the use of the land for the storage of formwork, stating that that application had been withdrawn, no doubt on the basis that it had been superseded by the application made by Entreat Pty. Limited to which I referred earlier. The report mentioned that in relation to the proposed landscaping the Council should require details of type species and the layout of planting. As to the involvement of State Rail Authority land in the proposed development, the report pointed out that the applicants would need to have a lease from the State Rail Authority and that Authority's consent to the development application. The Town Planner stated that a Property Officer of the State Rail Authority had told him that the Authority was not going to renew the lease. The report also mentioned the rezoning proposal, petitions having been received in the past from residents and that notices under <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s76.html ">section 76</A> of the Environmental Planning and Assessment Act had been issued with respect to the respondents' illegal use of their lands. On 11 June 1986 the Council wrote to the respondents referring to the 3 development applications and stating that they had been considered by the Council at its last meeting and certain resolutions had been passed with respect to them to the effect that the applications would be deferred and the following course of action adopted by the Council:- A. That the applicant be advised that:- (i)The proposal as outlined in their letter dated 9 April 1986 with attached plans No. 84:l0l, lA, 2 and 3 involves the use of additional railway land which requires development approval under the terms of the Environmental Planning and Assessment Act, 1979. (ii) The proposal is dependent on obtaining the use of the railway land for which the consent of the State Rail Authority is required. (iii) Before any further consideration can be given to the proposal by Council, it will be necessary for an amended development application to be submitted accompanied by the written consent of the State Rail Authority. B. That the matter be referred to Council's solicitors to instigate the appropriate legal action with respect to the unauthorised use of the properties for the storage of formwork contrary to Council's notice to the owners under <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s76.html ">section 76</A> of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment Act, 1979</A>. The letter pointed out that the respondents had the right to appeal to this Court against the Council's decision. On receipt of this letter Mr. Gambotto approached the State Rail Authority to procure its consent to the use of its land. In a letter dated 27 June 1986 from Mr. Nesci to the Council's solicitors in relation to the threat of injunction proceedings against the respondents, Mr. Nesci informed Council's solicitors that the respondents were negotiating with the railways regarding the matters raised by the Council with respect to the development applications for Nos. 6-20 and 28 Grove Street and suggested the status quo should remain until the respondents and the Council had had an opportunity to resolve the matter. The Council met on 1 July 1986 at which meeting it resolved, amongst other things, that should the State Rail Authority lease be due for renewal in November, "Council appeal to the State Rail Authority regarding the current disturbance being created by the present lessees to surrounding residents and request that new lease arrangements be undertaken with this factor in mind". The minute paper containing the above refers this resolution to the Chief Town Planner and another Council officer for attention. On 7 July 1986 the Town Clerk on behalf of the Council wrote to the State Rail Authority referring to Andrews Meats and Nos. 6-28 Grove Street and the lease from the State Rail Authority of adjacent land and to the fact that at its last meeting the Council had received a complaint from a resident. The letter then stated:- "Council has resolved, in part, to advise you that should the Authority be proposing to renew these leases that note be taken that the use of the land is causing a disturbance to surrounding residents and any new leases be considered with these factors in mind." I infer from the evidence that Mr. Arnett was aware that representations or advice to the State Rail Authority along these lines was, or would have been, conveyed to that Authority at this time whether or not he then had seen a copy of the Town Clerk's letter. The letter itself is endorsed, "Enquiries: Planning Department". I think that it is plain that the Town Clerk's letter was calculated to implant in the mind of the Authority that the Council did not favour renewal of the existing leases because of the existence of complaints by local residents. Whatever construction may be placed upon the terms of the letter, it is certain that the letter was not designed to assist but was calculated to hinder the respondents in their endeavours to obtain for the purposes of their development applications permission from the State Rail Authority to use its land whether for the purpose of storage or access. I would conclude that the Council and its relevant officers, including Mr. Arnett, were aware from about 1 or 7 July 1986 of the existence of representations made by the Council to the State Rail Authority with a view to procuring a refusal by that Authority of consent to the respondents' use of the railway land. In mid August 1986 Mr. Gambotto rang Mr. Arnett informing him that negotiations with the State Rail Authority were nearing finalisation and asking whether the Council was prepared to consent to the development applications conditionally on the respondents subsequently receiving the consent of the State Rail Authority, to which Mr. Arnett replied, "No, you would have to have consent beforehand. If you provide us with permission from the State Rail Authority in relation to access to the rear, the Council will be sympathetic to your applications". In the circumstances this was a somewhat hypocritical statement to make and was misleading in that it concealed that the Council had taken steps to make such permission more difficult for the respondents to obtain. On 28 August 1986 the Council wrote to the respondents regarding the developments applications for Nos. 6-20 and 28 Grove Street stating that, further to recent conferences and discussions, the Council wished to know as a matter of urgency the present position regarding the respondents' discussions with the State Rail Authority. The letter appealed for an urgent response, "as the matter cannot proceed further until this particular aspect is finalised". There is I think some duplicity in the Council's urgent insistence against its own intervention to undermine the respondents' prospects of obtaining S.R.A. approval. On 1 September 1986 the respondents' solicitors found themselves forced to respond to the Council's solicitors that the State Rail Authority was not prepared to renew the repondents' lease over the railway land. The letter went on to say that, therefore, instructions had been given to the respondents' architect to prepare amended plans of the proposed development. The letter also referred to a public meeting which the Council had called but of which insufficient notice, according to the letter, had been given to the respondents to enable them to send any representative. It appears that a public meeting was in fact held on 1 September 1986 to discuss the proposed rezoning and one of the decisions to come out of that meeting was that the Council would pursue with the State Rail Authority the question of encroachment by the respondents on the railway land without the consent of or release from the Authority and that this matter be pursued through State members of Parliament. 1 September 1986 to 11 November 1986 On 11 September 1986 Mr. Auyeung prepared amended plans dictated by the loss of the railway lands for both storage and access. He was forced by this loss to propose vehicular entry for all of the respondents' activities via either <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road into the back section of No. 28 Grove Street or by footpath crossings for ingress and egress into Nos. 8-20 Grove Street. These plans became part of development application D.A. 432/86 which the respondents' solicitors furnished to the Council with an explanatory letter dated 16 September 1986. In relation to No. 28 the area of land was the same except that all of the State Rail Authority land had been excluded. The area for Nos. 6-20 had been varied to show Grove Street access in place of access from Hill Street via the right of way over railway land. The letter contained a request to extend the development application to include for the purposes of ancillary storage of formwork on Nos. 8-20, the use of Nos. 2 and 6 Grove Street. The refusal by the S.R.A. of access over its land would appear to have created a problem not only for the respondents but also for the Council having regard to its apparent attitude not to reject the development applications but to defer them so that they remained unresolved pending the respondents solving problems raised by the Council. The prospect of trucks and heavy vehicles using Grove Street was obviously far less attractive than access via <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road and the Hill Street entrance to railway land having regard to objections already made by residents. The problem bounced back at the Council as appears from a letter dated 16 October 1986 which it wrote to Mr. Nesci with respect to the new development application No. 432/86 stating that the Council's Engineer was currently investigating the viability of heavy vehicle access from the dead end portion of <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road through to Hill Street, Dulwich Hill. The letter stated that until that investigation was complete, the Council's Engineer was unable further to consider the respondents' application. Thus the Council's intervention with the State Rail Authority had contributed to a new problem and further delays for the respondents' development application. On 11 November 1986 the Municipal Engineer informed the Chief Town Planner of the engineering requirements that would be applied to any vehicle crossings into No. 28 and Nos. 6-20 for approval to be given to the amended development application 432/86. On the same date, 11 November 1986, Mr. Nesci, on Mr. Gambotto's particular instructions, wrote a letter to the Council advising that the respondents' application to the Land and Environment Court had been listed for 21 November to have a date fixed for the hearing as the respondents had been left with no option but to proceed because every attempt to resolve the matters amicably had been frustrated. The letter pointed out that the respondents had done everything they could to try and avoid the use of Grove Street for their operation, "but we now find that the Council was instrumental in making representations to the State Rail Authority to revoke our licence over the railway land". Mr. Nesci pointed out that as a result, it was now impossible to use rear entry to the premises, but he went on to say that the State Rail Authority had indicated to the respondents that if the Council would provide a letter stating that it had no objection to the use of the railway land for rear entry, the Authority would give the respondents a limited licence for access but not for storage. Mr. Nesci asked the Council to give urgent consideration to this proposal and to provide a letter indicating its consent expeditiously, otherwise the respondents would be left with no option but to proceed with their amended plan using Grove Street for access. Mr. Nesci expressed amazement that a number of letters to the Council had not been answered. 18 November 1986 to 30 January 1987 On 18 November 1986 the Chief Town Planner reported to the Council reminding it that up to date the respondents' court proceeding had been deferred by the Court to enable the development application before the Council to be resolved and he referred to the respondents' solicitors' complaint regarding the Council's intervention with the State Rail Authority. He expressed the view that it was desirable, in view of residents' complaints, to restrict access to the subject properties to the rear and he recommended, therefore, that the Council should agree to the use of the railway land for access purposes only provided the State Rail Authority concurred. His report also pointed out that the company had been in fact carrying out its operations on the subject land for 10 years without consent having been granted and referred to the generation of noise and dust having been a bother to residents. He recommended that in view of those past problems, the Council, if it wished to approve the application, should limit its approval to a period of 12 months. This report (which is Exhibit 11) went on to make recommendations which include conditions that the respondents, by their counsel, have informed the Court that (except for C.3. thereof) they would be prepared to accept and undertake in the event of the Court concluding that its discretion should be exercised against granting the injunctions sought by the Council. For this reason, as well as their relevance in other respects, I will quote the recommendations of the report in full:- "RECOMMENDATION: THAT the application for the storage of formwork at 2, 6-20 and 28 Grove Street be DEFERRED and the following course of action be adopted by Council:- A.THAT the applicant be advised that Council raises no objection to the use of the railway land at the rear of the properties for access purposes to the properties on the proviso that:- (i) The necessary approval of the State Rail Authority is obtained for the use of such land. (ii) The subject land is used exclusively for access purposes only and not for the storage of goods or any other purpose. B. THAT the applicant be advised that prior to the issue of development consent, it will be necessary for:- (i) All open storage areas to be surfaced in such a manner as to provide an area that is free of dust and particulate matter. Such surfacing is to be completed to Council's satisfaction prior to 19th January, 1987. (ii) A plan for the landscaping of the site to be submitted to, and approved by, Council. In this regard dense screen planting of advanced trees and shrubs are required along the Grove Street frontage of the property, and at the rear of the property to provide suitable screening from the railway line. The landscaped plan is to be submitted to Council prior to 21st December, 1986, and the landscaping completed in accordance with the approved plan prior to 19 January, 1987. The proposed fencing along the Grove Street frontage of the properties 6-20 Grove Street is also to be completed to Council's satisfaction by such date. (iii) It will be necessary to submit the written approval of the State Rail Authority to the use of railway land at the rear of the property for access purposes. (iv) If the work listed in Part (i), (ii) and (iii) is not completed to Council's satisfaction prior to 19th January, 1987, legal proceedings will be instituted without further notice. C. THAT upon the work listed in Part B of this recommendation being completed to the satisfaction of the Chief Town Planner, the application to use the properties 2 Grove Street, 6-20 Grove Street and 28 Grove Street for the storage of formwork be deemed to be APPROVED subject to the following conditions:- 1. The development being carried out substantially in accordance with Plan No. 84-101 Drawing No. 1B and details submitted to Council on 19th September, 1986, with the application for development approval and as amended by the following conditions. Reason: To confirm the details of the application as submitted by the applicant. 2. The area to be used for storage of formwork being limited to properties known as 6-20 Grove Street and 28 Grove Street with no storage of formwork occurring on the railway land at the rear of the property or 2 Grove Street, with the entire properties being used in one occupation. Reason: To ensure that the use is not expanded within the premises without the prior approval of Council. 3. The approval being limited to a trial period of twelve (12) months expiring on 26th September, 1987. Subject to the satisfactory operation of the use during the trial period, Council will consider extending the Consent upon written application being made to Council one month prior to the expiry of the trial period. Reason: To ensure that the use is reviewed and assessed in the light of its performance and to ensure that the use does not interfere with the amenity of the locality. 4. Five (5) off-street car parking spaces being provided, paved, linemarked and maintained at all times to Council's satisfaction and in accordance with Council's standards. Reason: To ensure practical off-street car parking is available for the use of the premises. 5. All parking areas being provided in accordance with the design requirements set out in Council's Off-Street Parking Code and being used exclusively for parking and not for storage or any other purpose. Reason: To ensure adequate manoeuvrability to all car parking spaces. 6. The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan and being maintained at all times to Council's satisfaction. Reason: To ensure adequate landscaping is maintained. 7. No injury being caused to the amenity of the neighbourhood by the emission of noise, smoke, smell, gases, particulate matter, the exposure to view of any unsightly matter or otherwise. Reason: To protect the amenity of the locality. 8. A separate application being submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures. Reason: To ensure the compliance of any advertisements or advertising structures with the requirements of Council's Advertising Code and Ordinance 55. 9. The height of formwork stacked on the premises not exceeding the height of the top of the proposed fence in front of 6-20 Grove Street. Reason: To ensure that the formwork is not visually prominent from the adjacent residences and to protect the visual amenity of the surrounding neighbourhood. 10. All loading and unloading in connection with the use being carried out from within the property and in such a manner as not to cause inconvenience to the public. Reason: To ensure loading and unloading operations do not interfere with traffic and pedestrian movements in the area. 11. Vehicular access to the properties being restricted to the railway land at the rear of the properties. Such land being used exclusively for access purposes only and not for the storage of goods or any other purpose. Reason: To ensure satisfactory ingress and egress to the properties and to protect the amenity of the surrounding neighbourhood. 12. The property 6-20 Grove Street being fenced in accordance with the submitted plan with the exception that the proposed vehicular access ways are to be deleted and replaced with similar fencing. Reason: To protect the amenity of surrounding neighbourhood. 13. The hours of operation being restricted to between the hours of 7.30 a.m. to 5.00 p.m. Mondays to Fridays and 8.00 a.m. to 3.30 p.m. Saturdays with no work occurring on Sundays or Public Holidays. Council reserves the right to re-assess these hours of operation at any time in the future if, in its opinion, activities associated with the use of the premises during such hours are causing a nuisance or loss of amenity to the locality. Reason: To ensure that the operation of the premises does not interfere with the amenity of the locality. l4. No machinery being installed on the premises without the prior approval of Council. Reason: To advise the applicant of the necessity to obtain Council approval prior to the installation of any machinery. 15. A building application being submitted to Council in the prescribed manner, including plans and specifications, complying with the respective Council Code and the provisions of Ordinance 70. Such application is to include all plans for all building alterations including front fences along Grove Street. Reason: To advise the applicant of the necessity of submitting a building application, and of Council's requirements in that regard, for the proposed development. 16. The existing damaged vehicle crossing to No. 28 Grove Street and adjacent failed road shoulder, kerb and gutter and footpath shall be reconstructed in accordance with the requirements of Council's Engineer, by Council at the applicant's expense. Reason: To restore adequate heavy vehicle access at the <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road frontage. 17. Tabulated hydrologic and hydraulic calculations that demonstrate the adequacy or otherwise of the existing site stormwater drainage system shall be submitted for the approval of Council's Engineer in conjunction with the building application. Such calculations shall include any remedial measures necessary to rectify defects in the existing system. Where the existing system is to be interfaced with proposed site drainage, the calculations shall clearly demonstrate the adequacy of the existing drainage network to accept the additional stormwater to be drained thereto. Reason: To enable Council's Engineer to assess the adequacy of the existing site drainage. 18. Compliance with the requirements included in paragraphs (h) (l) (q) (r) (u) (w) and (z) of the Standard Town Planning Conditions, annexed hereto, all of which paragraphs shall be deemed to be included in, and form part of, the conditions attached to this Consent. Reason:As per the reasons specified on the annexure. 19. Compliance with the requirements included in paragraphs l(a) (f) (g), 2(a) (b) (f), 3(a) (b) (d) and (e) of the Standard Engineering Conditions, annexed hereto, all of which paragraphs shall be deemed to be included in, and form part of, the conditions attached to this Consent. Reason: As per the reasons specified on the annexure. Notable about these recommendations are, firstly, that the Council's intervention with the State Rail Authority has occasioned further delay to a resolution of the respondents' development applications, leading them again to be deferred by the Council; secondly, that, but for the Council's intervention, the access over railway land with the consent of the State Rail Authority, of which the Council now approves, may and probably would not have been denied months earlier; thirdly, the work conditions contained in section B were all capable of being carried out months before by applicants who were more than willing to co-operate with the Council and satisfy such requirements; fourthly, under section C, upon that work being completed to the satisfaction of the Town Planner, the development applications for the use of Nos. 2, 6-20 and 28 for the storage of formwork were to be "deemed to be approved" subject to the conditions set forth; and thus, all matters raised by the Council or calling to be dealt with for a grant of approval to be made were and months earlier were capable of having been resolved except the one condition, namely, the consent of the State Rail Authority to the use of its land for access. The Council was due to meet on 25 November 1986. Mr. Gambotto instructed Mr. Nesci to delay the appeal that had been instituted in this Court because of assurances he had received that the only outstanding obstacle to consent was the State Rail Authority approval. At its meeting on 25 November 1986 the Council would have had before it Mr. Nesci's letter of 11 November 1986 and Mr. Arnett's report of 18 November 1986. On 27 November 1986 the Town Clerk wrote a letter to the respondents stating that Council had considered the matter at its last meeting and had resolved to advise the respondents that the Council had no objection to the use of land at the rear of the subject premises for access on the proviso that approval be obtained from the State Rail Authority for its use. The letter stated, "Further consideration will be given when evidence is received of the State Rail Authority official approval". On 5 December 1986 Mr. Nesci wrote to the State Rail Authority seeking a grant of a licence for access. On 18 December 1986 the Chief Property Manager of the State Rail Authority wrote to Mr. Nesci noting Council's advice that it had no objection to the use of Authority land for access purposes but expressing regret that he was unable to progress the matter for the time being pending consideration by the Minister for Transport of Mr. Nesci's representations of 17 October 1986 which had recently been referred to the Authority for advice. The letter stated that upon receipt of confirmation that the Minister had dealt with the representations he would progress the matter in accordance with his determination. Thus the respondents encountered further delay heaped upon those already occasioned by the Council's intervention with the State Rail Authority. About this time, 18 December 1986, Mr. Gambotto rang Mr. Arnett to inform him that it now appeared that the State Rail Authority would give its consent to the use of its land for access but the matter would have to wait until the Minister could get to it. He asked Mr. Arnett what would be the situation with the granting of approval by the Council if the respondents could get the S.R.A. consent fairly quickly. Mr. Arnett said to him, "Provided the licence is satisfactory, it appears that everything else is in order and there is no reason why it cannot be put before Council at the subsequent meeting". In a letter written by the Council's solicitor to Mr. Nesci on 18 December 1986, the Council's solicitor, with respect to the view then held by the Council of the development applications, stated that the Council was still waiting to receive written confirmation of the arrangements with the S.R.A. for access. It is to be observed that both the Council's Chief Town Planner and its solicitor are at this stage representing to the respondents that there existed no obstacle to a grant of consent to the proposed development other than a licence from the State Rail Authority to use railway land for access to the rear of the properties. In a letter dated 22 December 1986 from Mr. Nesci to the Council's solicitor concerning the pending litigation, Mr. Nesci informed him that he had written to the State Rail Authority as soon as Council had said that it consented to access over the railway land and that he was then awaiting the licence to be issued. On 20 January 1987 the Minister signed the Marrickville Local Environmental Plan No. 32. On 23 January 1987 the Department of Environment and Planning notified the Town Clerk of the Council that the Minister had made the Local Environmental Plan and that the Council would be advised shortly before it was published in the Gazette. On 30 January 1987 the Local Environmental Plan No. 32 was gazetted changing the zoning of the land from Industrial 4B to Residential 2(b2). That was the end of the section so far as the Council's power to approve the respondents' development of their land was concerned but the respondents seem not to have immediately realised their position. Within a week of the gazettal the Minister for Transport had dealt favourably with the respondents' representations to the State Rail Authority. On 20 February 1987 Mr. Nesci and Mr. Gambotto attended the State Rail Authority and were told that a licence for access would be granted and on 23 February 1987 Mr. Nesci wrote to the Town Clerk informing him that the State Rail Authority had advised that the licence would be granted and was being prepared and would be sent to the respondents shortly. The letter asked that the Council please proceed with the development application subject to production by the respondents of written proof of the S.R.A. licence. On 9 April 1987 the Council's solicitor wrote to Mr. Nesci advising him that the rezoning that had been carried out by L.E.P. 32 now rendered it impossible for the Council to consent to the respondents' development applications and that they had advised the Council accordingly. The letter added that the view was taken that the current appeal by the respondents to the Land and Environment Court was incompetent and stated that they had been instructed to begin Class 4 proceedings against the respondents unless they were willing to voluntarily cease their operations in order to save the necessity for such proceedings. Mr. Nesci wrote to the Council's solicitors on 9 April 1987 protesting that no Class 4 proceedings should be commenced by the Council until the matter was finalised having regard to the fact that the respondents had delayed their appeal to the Court to meet the Council. They added, "our clients regard the passing of the Local Environmental Plan when the development applications were pending and continuously adjourned as being an underhand step taken by the Council". The Council's threats of legal proceedings to deal with the respondents unlawful use of their lands were repeated after the proposal to change the zoning was made public but did not result in the institution of proceedings until after the L.E.P. was gazetted. On 19 June 1986 the solicitors for the Council wrote regarding the use of Nos. 6-20, 24-26 and 28 Grove Street for the storage of formwork without consent, alleging that this constituted a breach of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment Act</A> and advising that they had instructions to take proceedings against the respondents unless it ceased it immediately. On 23 June 1986 those solicitors sent to the respondents' solicitor a copy of the minutes of the Council meeting of 10 June 1986, earlier mentioned, asking him to indicate the respondents' attitude to the question of such illegal use. On 27 June 1986 Mr. Nesci for the respondents told the Council's solicitor that he would oppose the institution of any injunction proceedings as he felt that the status quo should be preserved until the Council and the respondents had explored the opportunity of resolving the applications for development approval. On 27 November 1986 the Town Clerk, in his letter to the respondents to which reference has already been made, stated that the Council's solicitors had been asked to advise what action by prosecution or injunction might be taken to cause the cessation by the respondents of any unauthorised operations. There the threat of action against the respondents rested until well after the rezoning had taken place. As mentioned, the Council's solicitors on 9 April 1987 raised the question of Class 4 proceedings to which Mr. Nesci replied that they should not be taken and, inter alia, he accused the Council of underhandedness. Then on 14 April 1987 the present injunction proceedings were commenced. Little needs to be said about the Council's pursuit of the rezoning except to mention that as well as following statutory procedures and requirements, the Council would appear to have accepted with gratitude, whether or not it may have procured or encouraged, outside help in having the rezoning accomplished. On 4 and 11 June l986 notice of the proposed rezoning was advertised and it was placed on exhibition from the 5 to 19 June 1986. On 11 June 1986 the Council sent to Mr. Nesci a copy of the draft Local Environmental Plan which he had requested on the 27 May. On 12 June 1986 Mr. Nesci wrote to the Council a letter objecting to the rezoning plan on town planning considerations, emphasising that the respondents were willing to co-operate with the Council in its development plans by provisions to alleviate any problem occasioned to residents of the area by the respondents' operations. The objections also drew attention to the fact that the respondents had outlaid $l.4m in acquiring land to develop their business and would suffer very substantial economic hardship and a diminution in the value of their land if the rezoning were to take place. I have already mentioned the public meeting of 1 September 1986 called by the Council at which the respondents were unable to attend. On 3 September 1986 the Council notified Mr. Nesci that the Council had resolved that the Department of Environment and Planning be notified that <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s64.html ">section 64</A> of <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">the Act</A> had been complied with and requested that the Department proceed to gazette the plan as amended. The letter drew attention to the fact that the Council had resolved that the Chief Executive Officer of the State Rail Authority and the Member of Parliament for Ashfield be thanked for making representations to promote the rezoning. On 12 November 1986 the Town Clerk certified the L.E.P. No. 32 and, as already mentioned, it came to be gazetted on 30 January 1987. It remains to note the course of the appeal instituted in this Court by the respondents on 3 June 1986. As I have said, its progress, or lack of it, was influenced by the respondents' expectations that development consent would be granted by negotiation with the Council and by instructions from time to time to delay the proceedings to allow matters to be resolved out of court. It would seem that the matter was before the Court on 27 June 1986 when it was adjourned until the 19 August to allow further attempts to be made to resolve outstanding matters with the Council. On 19 August it was adjourned to 2 September on the application of the respondents to which the Council's solicitor took no objection. It came to be listed again on 25 September prior to which Mr. Nesci asked the Council to inform him whether the Council wanted an opportunity to deal with the matter out of Court rather than have him set the appeal down for hearing. On 25 September it was referred to the Duty Judge when Mr. Nesci arrived late at Court but he wrote to the Council's solicitor explaining what had happened and expressing the belief that the Council would wish to have the matter resolved without the appeal proceeding to a hearing and asked the Council's solicitor to obtain instructions in that regard, proposing that the matter be restored to the Registrar's list while at the same time giving the Council an opportunity to consider the respondents' amended application for development approval. On 30 October 1986 Mr. Nesci advised the solicitor for the Council that he had appeared before Mr. Justice Stein and had the case stood over to the Registrar's list for the 21 November for a hearing date to be allocated, as to which, it would help if the Council would indicate whether it intended dealing with the amended application for development consent before that date. On 11 November 1986 Mr. Nesci informed the Council that the application to the Court had been listed for 21 November because the respondents had no option but to proceed as every attempt to resolve the matter amicably had been frustrated. It was in this letter that Mr. Nesci complained that the respondents had discovered that the Council had been making representations to the S.R.A. to revoke their licence over railway land. This letter made it clear that the respondents did not wish to fight the matter in Court but the Council was leaving them no option. On 18 November 1986 the Chief Town Planner reported to the Council that up to that date the Land and Environment Court proceedings had been deferred by the Court in order to enable the development application before the Council to be resolved. On 20 November 1986 the solicitors agreed to have the matter adjourned for two weeks on 21 November because the respondents' amended development application was to be considered by the Council at its meeting on 25 November. As mentioned earlier, Mr. Gambotto, about this time, was instructing Mr. Nesci to delay the appeal to the Court because of the Council's assurances that only the State Rail Authority consent was needed for approval to be given. The matter was before the Registrar on 12 December 1986 when, there being no appearance for the applicants, the solicitor representing the Council requested that the proceedings be referred to the Duty Judge for dismissal and afterwards notified Mr. Nesci who replied on 22 December 1986 that the non-appearance was an oversight, recalled that on the previous occasion he was going to set the case down for hearing but at the request of the Council had kept the matter in abeyance pending the Council's decision on the development application, which they had then deferred until the S.R.A. consent was obtained; and Mr. Nesci expressed the hope that on the next occasion the Council would have what it required in order to make a decision and said that, if no decision had been made, the Judge would be asked to refer the case to the Registrar to set it down for hearing. The proceedings were then overtaken by the gazettal of the rezoning on 30 January 1987 and when they came before the Court again on 20 February 1987 they were adjourned to 10 April 1987. When, on 23 February 1987, Mr. Nesci informed the Council that the S.R.A. had advised him that the licence for access would be granted and requested the Council to proceed with the development application subject to the production of proof, he informed the Council and its solicitors that the case had been adjourned to 10 April on which date he proposed to tell the Court that the matter had been resolved. The Council's solicitor disabused Mr. Nesci's mind of that idea when he wrote on 9 April that the respondents' proceedings before the Court were considered to be incompetent and when the matter finally was before the Court on 10 April 1987, Mr. Nesci bowed to the inevitable and gave notice to the Court that the proceedings were discontinued with the consent of the solicitor for the Council. The Council's case for an injunction is based on its allegation that the respondents' activities are, by virtue of Marrickville Local Environmental Plan No. 32, a breach of <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s76.html ">s. 76</A>(3) of the Environmental Planning and Assessment Act, 1979. By s.124(l) of that Act, where the Court is satisfied that a breach of the Act has been committed or will, unless restrained by order of the Court, be committed, the Court may make such order as it thinks fit to remedy or restrain the breach. The Court of Appeal in F. Hannan Pty. Limited v. Electricity Commission of New South Wales (28 August 1985, Unreported) has held that section 124 was intended to confer upon the Land and Environment Court a very broad discretion not only to make but to refrain from making remedial or restraining orders. In his Judgment Street, C.J., said (at page 8) that the expression "such order as it thinks fit" empowers the Court to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it; and (at page 9) that if the Court ultimately decides that there is no order "fit" or just to meet the case, a decision to this effect will be a proper discharge by the Court of its jurisdictional duty under s.124. Street, C.J. also said, at page 12, "the precise manner in which the Court will frame its orders in the context of particular disputes is ultimately the discretionary province of the Court to determine in the light of all of the factors falling within the purview of the dispute". Mr. Tamberlin, Q.C., for the respondents relied upon these passages in the Judgment of Street, C.J., and also the decision of the Court of Appeal in Warringah Shire Council v. Sedevcic (1987) 10 N.S.W.L.R. 335 which illustrated the authority of the Court to exercise its discretion under s.124 by refusing an injunction to restrain the continuing use of land for an unlawful and unauthorised purpose. In that case, Kirby, P., at pages 338-34l, pointed out that the Court's powers were as wide as the discretion enjoyed by the Supreme Court in its equitable jurisdiction and observed, at page 342, that the discretion to grant or withhold relief was part of the statutory scheme of planning law and constituted a legitimate and integral part of the overall scheme of planning legislation operating in New South Wales. This view he repeated in A.C.R. Trading Pty. Limited v. Fat-Sel (1987) ll N.S.W.L.R. 67 at pp.80-83, especially p.82. On the question of the kind of conduct described as unconscionable against the effects of which equity would seek to provide relief, I was referred to a statement by Brennan, J., in Waltons Stores (Interstate) Limited v. Maher (l988) 62 A.L.J.R. 110 at p.125:- "The unconscionable conduct which it is the object of equity to prevent is the failure of a party who has induced the adoption of the assumption or expectation and who knew or intended that it would be relied on to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion. The object of the equity is not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon." Mr. Craig, who represented the Council, emphasised the importance, in considering whether to deny relief sought by a local authority for a breach of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment Act</A>, of the fact that such cases involved matters going beyond the mere determination of issues between the immediate parties as they also involve the public interest and the interests of other persons immediately affected: see per Street, C.J., in Hannan's case (supra) at pp.11-12. He further submitted that the Court should be less inclined to deny equitable relief to a Council than in litigation between private citizens because the Council is to be seen as the proper guardian of public rights and interests and is not to be compared with ordinary litigants pursuing private or pecuniary interests: Warringah Shire Council v. Sedevcic (supra) per Kirby, P., at p.340. See also North Sydney Municipal Council v. Ekstein (1985) 54 L.G.R.A. 440. As is evident from the facts proved, the case concentrated upon the conduct of the parties and I will deal with that matter first. In the background is the fact that until the rezoning took place on 30 January 1987 the land in question was zoned Light Industrial 4B and parts of it were being used for light industrial purposes. The respondents, to the Council's knowledge, had been using the land for some 10 years for the storage, handling and transporting of building formwork. The use was in conformity with the zoning of the land and, although development approval had not been obtained, the Council had done nothing about it. There was nothing to indicate to the respondents that the Council saw any reason to object to the nature of their operations. It was not until about the time of the development application in respect of Nos. 8-20 Grove Street in 1983-1984 that the Council's officers had anything to say concerning the use of the land for the storage of formwork. And then the message conveyed to the respondents through Mr. Auyeung was not that they should cease their operations but that they should apply for development consent. Thereafter the story is one of repeated attempts by the respondents to obtain developmental approval, not just as they would have proposed, but along lines that they were advised by Council officers and at site and other meetings and conferences would attract the Council's approval. These included proposing the development by way of a master plan covering a number of properties owned by the respondents, a requirement of the Council that was often repeated. A number of statements, which I have quoted, were made by representatives of the Council, including the Mayor and the Chief Town Planner, as to what matters required attention and as to what the respondents should do to obtain favourable consideration of their applications. These statements speak for themselves but, in my opinion, many of them positively held out to the respondents that their applications would succeed if they provided the information and did the things which they were asked to do. Moreover, these oral statements made at meetings were on numerous occasions confirmed in writing. In my opinion, the conduct of the Council and its officers was such as to induce the respondents to assume that they would obtain development approval if they did what was asked of them. The fact that from 5 November 1984 the Council issued from time to time notices requiring the respondents to cease their operations under threat of legal proceedings if they failed to do so, must be set against the fact that applications for development approval along lines dictated by the Council and its officers were at all relevant times pending before the Council to obtain the consent that would make the operations lawful and the fact that the Council never followed up these threats with any proceedings. There was evidence that the Council had been advised that its prospects of success in any such proceedings would be minimised by the fact that the use of the land in question was in conformity with the zoning and the Council had applications for consent pending which the respondents were pressing and pursuing. This does not detract from, but rather reinforces the reasonableness of the respondents assuming that the Council would grant development approval once its requirements were satisfied. The only act on the part of the Council indicating an adverse attitude to the development applications was the announcement of its proposal for the rezoning of the land. It is apparent that this caused some consternation to the respondents as they promptly instructed their solicitor to institute proceedings in this Court. But this, I think, is to be regarded as a protective measure with the respondents for a time in some doubt as to whether the Council was sincere in its apparent willingness to entertain favourably their development applications. The mere fact that rezoning was proposed did not necessarily mean that the Council would be averse to granting the applications of the respondents already pending at that time and, indeed, the Council and its officers thereafter continued to act towards the respondents and their development applications as if they were being seriously entertained and as if they were expecting the respondents seriously to continue with them just as if the rezoning proposals had never been made. I find that the respondents were induced by the conduct of the Council and its officers after the rezoning proposal was announced at the end of May 1986 to assume and expect that the Council would give approval to the relevant applications when the requirements it put forward from time to time were satisfied by them notwithstanding steps being taken by the Council to pursue the proposal for rezoning the land. The conduct of the respondents demonstrates that they were induced to expect that development approval would be given notwithstanding the rezoning proposals and were induced to do and refrain from doing a number of things to their detriment. Prior to the announcement of the rezoning proposal the respondents, encouraged by the Councils suggestions that they should submit an overall scheme for development of their lands, and the advice of the Mayor given to the respondents' architect at the meeting on 1 April 1986 that they should proceed with landscaping and fencing works, the respondents had purchased No. 28 Grove Street and 64 <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road and carried out landscaping, fencing and preparation of the ground for the prevention of dust at a cost of $57,000. At the same time, they had permitted their business to expand. After the announcement of the rezoning proposal, far from being discouraged by the Council's attitude to the development applications they were induced to believe that the only real obstacle to consent was the State Rail Authority's permission to use railway land. The plans to use such land for storage as well as access had been generated by the Council's insistence upon the desirability of an overall plan for the whole area. Thus whilst this part of the proposal became a stumbling block it was induced in the first instance by the Council's suggestion of an overall scheme. No objection can be taken to the requirement by the Council that the respondents show that they had a licence or other right to use the railway land for the purposes proposed and to produce a consent of the State Rail Authority to such use. <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s77.html ">Section 77</A>(l) of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment</A> <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Act</A> provides that a development application may be made only by the owner of the land or any person, with the consent in writing of the owner of the land, to which the development application relates. However, it becomes a critical question whether, but for the Council's interference, these requirements would have been met so as to enable a development approval to be given before the rezoning took effect. In my opinion, the evidence gives rise strongly to an inference that the respondents would have obtained the requisite licence from the State Rail Authority for the use of railway land for storge and access and, if not for storage, for access only, in plenty of time for an approval to have been given by the Council before the rezoning took effect. In my view, on the balance of probabilies, that is the only reasonable conclusion from the facts. In my view, also, there is a strong inference that the intervention constituted by the Council's letter of 7 July 1986 caused or strongly contributed to the State Rail Authority's initial refusal of consent to both storage and access over railway land. The repercussions from the State Rail Authority's refusal proved, in the course of events, to be fatal to the respondents' development applications. Firstly, it caused a change of plans to provide access via Grove Street and <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road and the lodgment of an amended application presenting in itself new obstacles to a grant of approval, namely, traffic considerations attending the use of Grove Street for heavy vehicles. The period from 7 July 1986 to 27 November 1986, some four and a half months, proved to be vital. On 27 November 1986 the Council notified the respondents of their withdrawal of objection to use of the land at the rear of the premises for access after which Mr. Nesci approached the State Rail Authority and received a favourable reply in February 1987, less than three months later, and, one may infer, much longer than it would have taken if there had not been an itial refusal on the basis of the Council's representations to the State Rail Authority. The point is that the earlier period of four and a half months was lost in delay which I find was directly caused or contributed to by the Council's letter of 7 July 1986. One may readily deduce the probabilities as to what would have occurred but for that intervention by Council and the problems and delay that it caused. If they are considered together the Chief Town Planner's report to the Council on 18 November 1986 (Exhibit 11), quoted above, the decision of the Council at its meeting on 25 November 1986 conveyed to the respondents by the Town Clerk's letter of 27 November 1986, to which I have referred, Mr. Arnett's statements to Mr. Gambotto on 18 December 1986 and the letter of that date from the Council's solicitor to Mr. Nesci, the only conclusion, in my opinion, is that the respondents had or were immediately able to qualify for development approval by the end of 1986 in all respects except only for production of the requisite licence and consent from the State Rail Authority. In giving evidence, Mr. Arnett agreed that by that time there were no town planning considerations contrary to the grant of approval for the use of their lands as proposed by the respondents. In my opinion, it is more probable than not that but for the Council's intervention to which I have referred, the respondents would have obtained the State Rail Authority's licence and consent to the use of railway land for rear access to their properties Nos. 8-20 and 28 Grove Street by about September or October 1986, if not earlier; but well before the change of zoning took place. The Council would then have been confronted with a development application to which no legitimate objection could have been taken except the existence of a draft L.E.P. which, however, was a ground that the Council had never put forward as a reason for refusing development approval. The probabilities are that in these circumstances the Council either would have given approval or refused it, bringing the matter to a positive resolution on which the respondents might then have acted to protect their interests. What happened instead was that the respondents were kept dangling by the deferral of consideration of the applictions in terms that continued to hold out the possibility of success. I find that the Council's conduct was such as to mislead the respondents as to that possiblity causing them to refrain from pursuing courses that they otherwise could and probably would have taken to protect their interests. I find that, in consequence of such conduct, the respondents refrained from acting on the consent given on 27 January 1984 to the development of the properties 8-20 Grove Street by commencing work on the approved building, which would have been a simple matter for them to have begun, but which they refrained from doing in the expectation that that development approval would be overtaken by the approvals expected to the development proposals contained in the overall scheme sought by the Council and represented by the three development applications filed on 13 December 1985. I also find that the respondents were induced by the conduct of the Council that I have described to refrain from pursuing pursuant to <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s99.html ">s.99</A> of the Land and Environment Court Act an extension of time to 27 January 1987 for the operation of the development approval granted for Nos. 8-20 Grove Street on 27 January 1984. However, their failure to pursue their rights of appeal in this respect do not appear to have any bearing on the end result because the respondents' own case is that they were diverted from the pursuit of that development consent by the Council-induced proposal for an overall scheme of development constituted by the three development applications that came to be lodged on 13 December 1985. With the withdrawal of the application for Nos. 24-26 Grove Street, Nos. 6-20 and 28 Grove Street remained and these overlap their proposals for the use of Nos. 8-20 for which development approval had been given on 27 Janury 1984. However, in view of the submissions made with respect to that matter, I should say that, in my opinion, the disregard of Mr. Arnett to the request made for an extension of time by Mr. Nesci's letter of 23 October 1985 was an inexplicable and serious error. In my opinion, the letter made a clear request for extension of time that satisfied all of the requirements of an application pursuant to <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s99.html ">s.99</A>(3) of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment Act</A>. Regulation 46(l) of the Regulation made under that Act requires that an application referred to in that section should be made in writing to the consent authority clearly identifying the consent to which the application relates and showing cause why the consent authority should approve the application. All of those requirements were met and met clearly on the face of the letter. Having regard to the fact that the consent would expire within about two months of the date of the letter unless it was extended and to the circumstances in which the extension was sought and the purposes of the extension, all of which should have been clearly apparent to Mr. Arnett, it is difficult to undersand how he could have come to despatch the letter to oblivion in a general file. In an internal memorandum on 9 March <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1988/61.html?query=%7E%201988#disp2 " name=disp3><IMG alt="<<" border=0 src="Marrickville Municipal Council v Angelucci & Ors [1988] NSWLEC 61 (29 August 1988)_files/contextup.gif"></A>1988<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1988/61.html?query=%7E%201988#disp4 "><IMG alt=">>" border=0 src="Marrickville Municipal Council v Angelucci & Ors [1988] NSWLEC 61 (29 August 1988)_files/contextdown.gif"></A> the Deputy Town Planner, who held that position at the time of the events in question in this litigation, being asked to report on the matter stated that the solicitor's letter, dated 23 October 1985, would have been within the period of validity of the development consent for consideration to extend it but was not dealt with and, he wrote, "I can only assume was 'lost' in the paper work relating to TP.493/85 lodged 12/l2/85 and not dealt with as a separate matter and obviously not at all". Mr. Arnett agreed that, treated as a proper application for extension of time, there was no reason for it not to have been granted by the Council. I would conclude that but for Mr. Arnett's error, and without the necessity for any further action by Mr. Nesci or the respondents, the application for extension would surely have been granted and the valuable rights consequent upon an extension of time to 27 January 1987 would have been an added strength or a fallback position available to the respondents in the course of their continuing dealing with the Council. In my opinion, the loss of those rights and that advantage were occasioned by the conduct of the Council to which I have referred and by, in particular, the failure of Mr. Arnett properly to deal with Mr. Nesci's letter. With respect to the proceedings instituted in this Court, on 2 June 1986, I am satisfied that the sole reason for the respondents not pressing to a hearing was the expectation engendered by the apparent attitude of the Council and its officers that they would obtain approval for their development as soon as they could obtain the required consent from the State Rail Authority. I accept that they failed to prosecute those proceedings only because they preferred and believed that the Council would prefer to resolve the matters out of Court if that could be achieved and the only apparent obstacle was the State Rail Authority's consents. In my opinion, the making of representations to the State Rail Authority designed to prevent the respondents from obtaining from that authority the very consent which the Council was representing to the respondents was the only real obstacle to a grant by it of development approval was a duplicitous act unworthy of a public authority administering public law. That act and its consequences upon the progress of the development applications in question, was the principal cause of the predicament in which the respondents now find themselves. As I have found there were other acts done by or for the Council that contributed. In my opinion, in so far as the respondents seek to base their case for a denial of injunctive relief upon unconscionable conduct by the Council in the matter, that ingredient in the grounds for such an exercise of the Court's discretion has been made out, but there are other matters to which the Court must give consideration, some of which are and some of which are not in favour of withholding injunctive relief. First, those in favour. If an injunction was granted, although the new residential zoning would permit medium density housing, there would remain indefinitely a number of unattractive features of the area for such development and parts of it would continue indefinitely to be used for industrial purposes by reason of existing use rights. Working along from <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road, there is the factory already standing on the triangular piece of land which I have mentioned. There is the section of No. 28 Grove Street that turns around No. 64 <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/ ">Constitution</A> Road and fronts that road. Adjoining No. 64 is No. 66 which is used by another company for the storage of building formwork. No. 28 Grove Street already has a large warehouse erected thereon. Nos. 24-26 containing a two storey factory building and vacant grounds and would remain substantially industrial. No. 22 contains the Avon Tyre Company's warehouse and business offices. Nos. 8-20 would remain unused as vacant land. No. 6 would contain the caretakers cottage at the front of the block with a storage building at the rear. No. 4 would be a cottage not owned by the respondents and No. 2 would be a cottage owned by the respondents. Andrews Meats building at the rear would also remain and that business, together with the other industrial operations continuing under existing use rights, would continue to attract the traffic and activities that go with light industrial operations. Then there is the railway line hard by at the rear of the block which, when added to the other features of the area to which I have just referred, would not present an attractive residential area for medium density housing until some time in the distant future when the industrial usage came to be phased out. As the present as well as the past has to be taken account of in assessing the future of the area, it is to be noted that in May of this year Andrews Meats and the respondents between have acquired by purchase from the State Rail Authority the whole of the railways land to which I have referred. This land remains presently zoned as Special Uses 5(a) (Railway). One point of relevance that arises from this acquisition is that rear access to all of the respondents' lands in the block is now guaranteed. However, the use to which the land may be put with its current zoning, whilst unlimited, is subject to the Council's consent. The Court is in no position to speculate about what use may be permitted of these former railway lands that is not already permitted by existing use rights and, except for Andrews Meats, there would appear to be no such rights. A matter that favours the respondents is that if their operations were permitted to continue (but subject to the kind of conditions that the Chief Town Planner's report, Exhibit 11, would have imposed) not only the assumption or expectation on their part of permission to store formwork, the adoption of which had been induced by the Council's conduct, be realised but also they would be placed substantially in the position they probably would have been in before the rezoning was effected but for the delays occasioned by the Council's intervention with the State Rail Authority. Moreover, from the point of view of town planning regulation, their activities would be in complete conformity with the original zoning of the land and which, but for the Council's steps to procure the rezoning of the land, would have continued in accordance with what was, apparently, originally conceived to be the appropriate zoning for this small pocket of land adjoining a railway line at the fringe of a residential area. Also in favour of the respondents is the trouble and expense to which they have been put by carrying out the works requested by Council to which I have referred and the hardship they will endure by the deprivation of this valuable area for the storage of materials they use in their business and by the disturbance of that business and the costs of relocating it. Turning to matters which weigh against refusal of relief to the Council, I accept two submissions of principle on which the Council relied. Firstly, the public has an interest in the maintenance of the integrity of planning legislation which generally transcends considerations otherwise applicable in cases involving adjustments between private individuals; secondly, where the Attorney General or a council or other similar local authority representing the interests of the public is an applicant, the Court is slow to deny relief on discretionary grounds. That these are sound general principles cannot, I think, be denied; but special circumstances may be shown which provide exceptions to or qualified applications of general rules. The situation here is not one of pre-existing general planning legislation of which a respondent is charged with committing a breach. It is one where the Council has by its own conduct virtually engineered the breach with which the respondent is charged. The planning instrument which the Council proposed and promoted was virtually targeted at the respondents although a few other landowners were affected. The other landowners affected were protected against ruination of their businesses by existing use rights that would carry them on after the rezoning. The idea of the rezoning was generated by the existence of legitimate aspirations by the respondents as landowners to obtain the consent of the Council to the use of their lands for purposes that conformed with and were permitted by an existing planning scheme in force when they acquired their lands and applied for the consent. Whilst the idea was also influenced by complaints of residents, these related to matters of unsightliness, noise and dust and mud carried by trucks on to the streets adjacent to footpath crossings, all of which were controllable by appropriate conditions and policing, as illustrated by the conditions contained in Exhibit 11. Thus the Council's actions may fairly be said to have been directed specifically at these present respondents and what, I think, distinguishes this case from the application of the general principles submitted by Mr. Craig is the fact that the illegal conduct by the respondents of which the Council now complains is something for the bringing about of which the Council itself, by its own actions, may be held responsible. Then there is the consideration tending, prima facie, against a refusal of an injunction that, although it was the Council that resolved to propose the rezoning, the decision to rezone the land was made not by the Council but by the Minister and to permit the respondents to carry on activities prohibited by the new zoning would virtually set the Minister's decision at nought. This is, no doubt, an important consideration but, in my opinion, it is not a bar to the exercise of the Court's discretion. The mere fact that the rezoning is the act of the Minister does not exclude the possibility of equitable grounds and the requirements of justice and fair dealing in the local administration of public law leading the Court to withhold equitable relief in a particular case. Moreover, the withholding of such relief would not in fact set the rezoning at nought. As I have said the rezoning is ineffective to terminate the industrial usage already being made of a substantial proportion of the small area in question andlikely to continue. If the respondents were permitted to continue their activities, they would be entitled to do so upon the basis of a mere personal equity which would not attach to the land or be transmissible to successors in title. It would expire with their ownership. Thus, in the course of time one may anticipate that the residential use proclaimed by the rezoning will gradually become phased into the area as the present industrial usages cease. Another consideration in the exercise of the Court's discretion is the potential for environmental harm resulting from the proposed use of the land if relief is withheld. On this point it is relevant to consider the nature of the activities proposed. Whilst the area of land involved is quite large, the predominant use made of it is simply for storage of large quantities of formwork components, which is a passive operation over most of the area involved. The active operations are on a relatively small scale, some cutting of plywood, paint dipping of steel formworks supports and members and cleaning under cover of some plywood sheets to which particles of concrete have adhered and re-oiling of plywood sheets for further use by use of a mop and bucket of oil. There are few employees engaged in these activities. The only active operations likely to give disturbance to neighbours that would need to be permitted are the loading and unloading and movement of motor vehicles. According to the evidence the number of traffic movements is relatively minor but one can expect noise from such traffic as there is to be generated by the movement and loading and unloading of the trucks. However, none of these activities were seen to insurmountable obstacles to a grant of development consent which is illustrated by the recommendations of the Chief Town Planner in Exhibit 11. All of the potential causes of annoyance to residents appear to be capable of control by conditions and a reasonable amount of checking from time to time. I am unable to see such a potential for environmental harm from the respondents' proposed operations when made subject to appropriate conditions and intermittent supervision. It was suggested that if conditions were imposed the respondents past conduct indicated that they could not be relief upon to observe them. In my opinion, the Court should not prejudge that question. The respondents have lacked throughout a definitive answer to their requests for development approval which, if given, would have formalised the rules which they had to observe as a condition of being permitted to carry out their operations. In the light of all of these considerations, I have come to the conclusion that subject to one further problem that the case presents, the applicant Council ought, in the Court's discretion, be denied the remedy it seeks against these respondents. In my opinion it would be a substantial injustice to the respondents to permit the Council to take advantage of their present situation when it was the Council's own conduct that, in effect, brought it about. There are, in my opinion, no sufficient public interest considerations to outweigh the equity of the respondents to be relieved of the consequences of the Council's conduct. The problem that remains is one, I think, of some considerable concern to the Court. There can be no argument that the respondents cannot be permitted a free hand to conduct their operations as and when they see fit because the Court, at their request, declined to grant an injunction. It is obvious that having regard to the activities that would thereby be permitted in the present case, any exercise of the Court's discretion in the respondents' favour would have to be conditional upon compliance by the respondents with all appropriate measures to safeguard the interests of the local residents and the public interest. Such conditions when imposed by a Council would have the statutory sanction of <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s76.html ">s.76</A>(2)(b) of the Environmental Planning and Assessment Act to back them up and the authority of the Council to supervise and police their performance and prosecute their breach. Conditions laid down by the Court, however, whether by way of undertakings given by a party or as conditions upon which the operation of an injunction is suspended, stand outside the purview of the Act and, although the Council, as a party to the proceedings, would have the right to apply to the Court to enforce the conditions it may not exercise the same degree of vigilance as it would of conditions for which it itself was responsible. Moreover, as the respondents' activities would be prohibited by the present planning instruments, there may be questions as to whether the Council may entertain or deal with applications for building approval that may be necessitated by the sort of conditions which the Court may find necessary to impose. For example, if plans, specifications or works have to be produced or carried out to the satisfaction ofa town planner, an engineer or health surveyor, the Court is not itself equipped to deal with that situation, so that, if conditions of that kind were required they could only be based upon an assumption that the Council would perform those tasks and duties by virtue of the orders of the Court. In my opinion, the Court should not be deterred by these considerations from the attempt to find a practical solution to the question of the imposition of conditions in order, while doing justice to the party in whose favour the discretion is exercised, to protect the interests of other persons affected and the public interest. There is, I think, sufficient reason for the Court to undertake this task, in the authorities to which I have referred which point out the special role of the Court in the field of environmental and planning law and adopt the view that the power of the Court to exercise the wide discretion given to it both to grant and withhold relief is to be considered as an integral part of the overall scheme of planning legislation in New South Wales. I am therefore disposed to decline to make the orders for injunctive relief sought by the Council but to mould the Court's order so as to impose upon the respondents all appropriate conditions having regard, in particular, to those which the Council would have imposed itself if it had adopted the terms of approval of the development applications in respect of the subject property set forth in the Chief Town Planner's report (Exhibit 11). The settlement of the form of order and the conditions would need to be the subject of further consideration by counsel for the parties once they know the conclusions that I have reached and I propose to relist the matter for that purpose. In offering to undertake compliance with the conditions contained in Exhibit 11, the respondents' counsel excepted condition C.3. which recommended that the Council's approval be limited to a trial period of l2 months and that, subject to satisfactory operation of the use of the land during that trial period, Council consider extending the consent for a further period. I have referred earlier to the evidence of complaints by residents and the nature of those complaints, the respondents repeated assurances of co-operation with the Council and willingness to do whatever was necessary to alleviate the matters complained of. As I have said, they all appear to be controllable. There was evidence that there had been no recent complaints of the respondents' operations. Nevertheless, in the light of past complaints, the respondents should, in my opinion, be prepared to accept a trial period with the prospect of further or permanent extension thereof if their compliance and the results for the residents are reasonably satisfactory in all the circumstances. I think that they should be prepared to accept such a trial period both to prove the feasibility of operating satisfactorily on the basis of conditions imposed by the Court as the means of exercising its discretion in their favour and to show their good faith in the matter, as well as satisfying the public interest. The trial period would need to be a reasonable length of time having regard to the works and expenses involved in satisfying the conditions. I will hear counsel for both sides on the question of the length of the period; but if the respondents maintain their objection to and decline to submit to such a condition, then I think that the Court would not be justified in exercising its discretion in their favour. If an injunction is conditionally refused then it will be with liberty reserved to the Council to renew its application for injunctive relief on the basis of a change of circumstances affecting the public interest sufficient, as the Council may be advised, to warrant such an application and with liberty to the Council to apply for orders enforcing the conditions and to both parties to apply for variations, including deletion of or additional conditions. I will hear counsel on the question of costs in due course. 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.

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

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

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