ZIADE v RANDWICK CITY COUNCIL [2000] NSWSC 110

New South Wales Supreme Court

CITATION : ZIADE v RANDWICK CITY COUNCIL [2000] NSWSC 110 revised - 19/04/2000 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 5148/99 HEARING DATE(S) : 22/02/00 JUDGMENT DATE : 3 March 2000

PARTIES : JACK ZIADE RANDWICK CITY COUNCIL JUDGMENT OF : Bryson J at 1

COUNSEL : M. Packer for Plaintiff W. O'Rourke, sol. for Defendant SOLICITORS : Gregory J. Halpin for Plaintiff Warwick O'Rourke of Deacons Graham & James for Defendant CATCHWORDS : LOCAL GOVERNMENT - parking control - Randwick Council limited parking in streets near The Spot and Ritz Cinema exercising powers under Roads Act 1993 delegated by Roads & Traffic Authority - proprietor of Ritz Cinema disputed validity of decisions - interlocutory injunction pending decision of proceedings. CASES CITED : Kioa v. West (1985) 159 CLR 550 Minister for Aboriginal Affairs v. Peko Wallsend Pty Ltd (1986) 162 CLR 24 DECISION : Interlocutory injunction on terms requiring expedition.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

FRIDAY 3 MARCH 2000

5148/99 JACK ZIADE v. RANDWICK CITY COUNCIL

JUDGMENT 1 HIS HONOUR: The plaintiff claims an interlocutory injunction restraining the Council from acting on a resolution dated 1 February 2000 which restricts parking in streets near the Ritz Cinema in St Pauls Street, Randwick. 2 The plaintiff purchased the Ritz Cinema in 1983 for redevelopment. The Ritz Cinema was made the subject of a Permanent Conservation Order on 19 March 1993. The plaintiff then proceeded with its refurbishment and the development of three additional cinemas. In 1996 he obtained Development Consent and spent in excess of $4 million in refurbishing the cinema and carrying out extensions, completed in 1997. In compliance with conditions of Development Consent the plaintiff paid money towards establishing and implementing a resident parking scheme in the vicinity of the cinema. Under this scheme, from about 1996 on, there was a mix of one hour, two hour and 2.5 hour parking limits in streets near the cinema between 10 am and 6 pm. In 1998 the parking restrictions were extended to 10 pm. In October 1998 the plaintiff lodged a further development application for approval to construct two further cinemas on the premises. The Council refused development consent, but consent was obtained on appeal by order of the Land and Environment Court of 29 November 1999. Development under this Consent has not yet been undertaken. 3 On 7 December 1999 Council resolved to implement a change in parking restrictions in the area. According to the plaintiff's case, this change severely impeded parking by cinema patrons. The plaintiff commenced the proceedings on 21 December 1999 and obtained an interim injunction restraining the defendant from implementing those changes; this had effect only until 31 January 2000, the first day of the new law term. On 31 January the injunction was extended by consent until further order, and in the usual course that would mean that the injunction would operate until the merits were decided. 4 On 1 February 2000 Council rescinded its resolution of 7 December 1999 and made another resolution to the effect that the current parking arrangements were to be retained pending a further review, and that the existing two hour residential parking scheme in named streets be changed to a one hour residential parking scheme. The part of the resolution reducing two hours to one hour reproduced a prominent provision of the original resolution of 7 December, except for omitting St Pauls Street west of Perouse Road from the change; almost all the area previously affected by the change to one hour continued to be affected. 5 The plaintiff's claim for an interlocutory injunction is to be determined at the Court's discretion, for the exercise of which I should review and consider whether the plaintiff has a prima facie claim to relief and appraise the strength of that claim, and I should also consider the balance of convenience between making and withholding an interlocutory order. No Points of Claims have been filed, but the direction to file them related to the resolution of 7 December and should not now be followed. The plaintiff's counsel outlined the grounds of claim. 6 The first ground is that the Council on 1 February 2000 exercised its powers without giving the plaintiff an appropriate opportunity to be heard notwithstanding that the resolution implemented a scheme in which the plaintiff had an interest and would incur damage in its business interest. The plaintiff relies upon principles established in Kioa v. West (1985) 159 CLR 550. 7 In answer Council relied upon a notice of 25 January 2000 in which a Council officer gave the plaintiff a copy of the rescission motion, told him that it would be considered at the meeting of 1 February and pointed out the procedure by which businesses affected could speak against the motion. The defendant's solicitor contended that the resolution of 7 December and the proceedings relating to it had become irrelevant with its rescission. 8 In my opinion it is reasonably open to argument that the whole of Council's proceedings in relation to both resolutions and the opportunity for the plaintiff to be heard on them should be considered together because of their close association. It is also reasonably open to argument that the notice of 25 January did not give the plaintiff a fair opportunity to be heard, even if the correct position is that the earlier decision was by then irrelevant. 9 The second ground is that the decision was taken without regard or proper regard to any study, completed by a competent person of the traffic and parking impact of the decision, without paying regard or appropriate regard to reports of committees and without public consultation. It was said that there had been no assessment by Council of the impact of the change on the heritage values of the Ritz Cinema, and that the views of the Heritage Council, police and other public authorities had not been sought. It was said that the decision had been taken without the benefit of any expert opinion and that this was failure to take into account matters which the Council was bound to take into account, thereby invalidating the decision. Counsel referred to Minister for Aboriginal Affairs v. Peko Wallsend Pty Ltd (1986) 162 CLR 24 at 39. In my opinion the plaintiff has some prospects of succeeding on this ground, but the prospects are not strong. 10 The third ground was that s.94 of the Environmental Planning and Assessment Act 1979 imposes a statutory trust on the Council with respect to the application of money paid by the plaintiff in 1996 as a condition of Development Consent for the purpose of providing parking. It is the plaintiff's position that in some way a trust of that kind would prevent the Council from departing from the substance of the parking arrangements made in association with or after the contribution had been paid. In my opinion the plaintiff has poor prospects of success on this ground. 11 A fourth ground put forward is that the decisions were unreasonable in the Wednesbury sense. In support of this contention counsel referred to the circumstances of the expansion of the Ritz Cinema in 1996, that the cinema has been trading in its present form since completion of the development, and that the decision of the Land and Environment Court given on 29 November, shortly before the Council's resolution of 7 December, authorised a further expansion which had not yet begun and was not to be completed for at least 18 months Counsel contended that the Land and Environment Court accepted evidence that trading at the Ritz Cinema would decline substantially because of the emergence of two multiplex cinema complexes elsewhere in the Eastern Suburbs; and that in the circumstances there was no reason why the time available for non-residents to park should be reduced urgently. In my opinion the plaintiff does not have strong prospects of establishing that either decision was unreasonable in the Wednesbury sense. 12 The fifth ground was that the decision was made for an improper purpose. This conclusion was said to be based on the course of events and the proximity in time between the decision of the Land and Environment Court and the resolution of 7 December, and the absence from the course of events of any other recent event which could have prompted the decision. Among the significant events was that the Council's traffic committee had made a recommendation in July 1999 which had not been acted on in the intervening months. The contention was that, except as a hostile response to the decision of the Land and Environment Court, no explanation for the Council's decision or for its concern that the decision should be taken forthwith and implemented on 1 January 2000 can be seen. In my opinion there are some prospects of success on this ground, although they are not strong. 13 The sixth ground was that the resolutions were ultra vires. It was said that Council exercised a delegated power under the Transport Administration Act 1988 and that the effect of further regulations under that Act which came into operation on or about 1 December 1999 was that the previous delegation had ceased to have effect, while there had not been any further delegation by 7 December. This contention was not made out by referring in detail to the terms of the regulation which had supposedly rescinded the earlier delegation, while it is clear from correspondence from the Roads and Traffic Authority that at a time after 7 December the Authority was not of the view that there had been any such rescission. It has not been shown that the plaintiff has reasonable prospects of success on this ground. 14 The seventh ground was said to be based on an estoppel to the effect that in the course of consideration of his development application the plaintiff agreed to reduce the number of seats to be occupied at any one time on the basis of the existing parking scheme. In my opinion there are no prospects that the plaintiff will succeed in establishing that an estoppel arising in this way prevents the Council from exercising its public powers. 15 Overall I am of the view that the plaintiff has some prospects of success in the proceedings, as on several grounds a prima facie case exists; but the plaintiff's case is not very strong. Appraisal of the balance of convenience has a prominent part in the exercise of discretion. 16 Ordinary understanding of the workings of cinemas shows that reduction in available parking in streets nearby from two hours to one hour will have a severe impact on patronage. If the plaintiff does succeed on the merits, the adverse impact of the operation of the restrictions during the interlocutory period will be a very significant factor, and no remedy in damages will exist. 17 On the other hand, an injunction will prevent the achievement during the interlocutory period of the results sought by the Council's decision, most significantly the advantages in making parking space available for residents as against persons using vehicles for access to the business district including the cinema. An injunction would in effect restore the regime which existed from 1997 until 31 December 1999, subject to the extension of the hours of restriction from 6 pm to 10 pm which occurred in 1998. While that regime apparently was not satisfactory to the Council in the longer term, it did apply for several years, with enforcement by Council staff. In my view its continuance during the interlocutory period would not be highly inconvenient. 18 After reviewing these considerations I have decided that I should make an interlocutory injunction on the terms which appear in my order. I do not regard it as necessary to require the usual undertaking as to damages. 19 My Order is: (1) The defendant is restrained from physically implementing any change to the parking arrangements in St Pauls Street, Stewart Street, Lee Street, Hardiman Avenue and Daintrey Crescent pursuant to the defendant's resolutions dated 7 December 1999 and 1 February 2000.