Land and Environment Court New South Wales Medium Neutral Citation: Marshall Rural Pty Limited v Hawkesbury City Council and Ors (No 2) [2015] NSWLEC 210 Hearing dates: 18 December 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Jurisdiction: Class 4 Before: Moore AJ Decision: At [21] Catchwords: DEVELOPMENT CONSENTS – successful challenge to validity – terms of declaratory relief – exercise of discretion as to operative date of prohibition – impacts on innocent proposed users of facilities if immediate prohibition – amelioration of adverse impacts on neighbours – charitable donation to address "unjust enrichment" – discretion exercised. Legislation Cited: Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmental Plan 2012 Cases Cited: Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197 Category: Consequential orders (other than Costs) Parties: Marshall Rural (Applicant) Hawkesbury City Council (First Respondent) Basscave Pty Ltd (Second Respondent) Argosy Agricultural Group Pty Ltd (Third Respondent) Representation: Counsel: Mr S Fitzpatrick (Applicant) Mr A Knox, solicitor (First Respondent) Mr C Leggat SC/Ms J McKelvey (Second and Third Respondents) Solicitors: Hall & Wilcox (Applicant) Pikes & Verekers (First Respondent) Doyle Wilson Solicitors (Second and Third Respondents) File Number(s): 40644 of 2015 Publication restriction: No Judgment 1. HIS HONOUR: Earlier this week I gave a decision in these proceedings (see Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197) in which I held, on two separate bases, that the development consents granted to the Second Respondent for the temporary use of the Polo Barn as a "function centre" and the temporary use of the Sunnybrook Barn as a "function centre" were not validly given by Hawkesbury City Council, the First Respondent in the proceedings. 2. For the reasons I observed at [266] to [267] of the judgment, I considered that it was appropriate to deal with final orders in the proceedings prior to the end of the Law Term this afternoon. 3. When the proceedings commenced this afternoon, I read four affidavits that were filed on behalf of the Second Respondent, Basscave Pty Ltd, and the Third Respondent, Argosy Agricultural Group Pty Ltd (being the owners of the property and the corporate entity that provides the services for the functions - wedding receptions and the like - that are conducted at either the Polo Barn or the Sunnybrook Barn). 4. The affidavits that were read were, first, from Ms Danielle Smith, a wedding coordinator employed by the Third Respondent. Her affidavit, read without objection or requirement for cross-examination, set out a schedule of booked weddings for the Polo Barn between now and June 2016 and then a similar time span for the Sunnybrook Barn. 5. There were a number of weddings between now and late March 2016, being a time that is relevant, as I will later recount, and then a further series of weddings in each facility beyond that date. 6. It is sufficient for me to observe that between now and Sunday, 25 March there are seven weddings proposed to be conducted across the two sets of premises used for those purposes. 7. The second affidavit to which I should refer is an affidavit of Ms Daniele Albanese, an acoustic consultant who deposes as to the nature of noise-limiting devices that have now been established in and operational within both the Polo Barn and the Sunnybrook Barn. Ms Albanese opines in [6] of her affidavit that: Provided amplified music and speech is controlled by the noise‑limiting devices installed in the Polo Barn and Sunnybrook Barn to a level not exceeding 80 decibels, and the doors of those structures are closed, the noise outside these buildings would be inaudible at the closest residence to either building. 1. Mr Leggat of senior counsel has proffered an undertaking on behalf of the Second and Third Respondents that any activities that might be permitted during an interim period of suspension of an order for cessation at either structure would be carried out in conformity with the requirements set out in Ms Albanese's affidavit. 2. The third affidavit that I have is from Ms Scott, who deposes as to the nature of the bookings that she has made and the fact that she anticipates that there would be significant difficulties in obtaining an alternative venue if there were to be an immediate prohibition on the activities in the structure that she has booked, being the Polo Barn. 3. The fourth affidavit is from Mr Doyle, the solicitor for the Second and Third Respondents. It deposes that fresh development applications have been lodged with the First Respondent, seeking a temporary use approval pursuant to cl 2.8 of the Hawkesbury Local Environmental Plan 2012 for the use of each of the Polo Barn and the Sunnybrook Barn, but on differing bases which respond to the matters that I found were defective in the judgment that I have given in these proceedings. 4. Annexure C to Mr Doyle's affidavit is a schedule of the meetings of the First Respondent for 2016 and, relevant to what I am about to recount, records that the Council has an ordinary meeting scheduled for 10 March and a further ordinary meeting scheduled for 31 March. Mr Doyle deposes, at [6] of his affidavit, that Mr Knox, solicitor of Pikes & Verekers Lawyers, who has appeared this morning on behalf of the First Respondent, has indicated that there is a reasonable expectation that the fresh development applications may be determined during the March meeting cycle of the First Respondent. 5. I put to Mr Leggat, at the commencement of this afternoon's proceedings, that I had three matters that I considered were appropriate to be contemplated in resolving the question of the exercise of discretion pursuant to s 124(1) of the Environmental Planning and Assessment Act 1979, only one of which fell within my power to make a determinative finalisation of the outcome - that being the question of for how long there might be, if there were to be, a suspension of any prohibitory order with respect of either the Polo Barn or the Sunnybrook Barn being used for the temporary purposes of a "function centre". 6. The second matter was the question of ameliorative processes for dealing with noise impacts not only on the Applicant in these proceedings but on other residents in the vicinity who had raised their concerns about acoustic impacts during the course of the Council's assessment process for these two applications. Mr Leggat has indicated that the measures proposed by Ms Albanese would be the subject of the undertaking and that the undertaking also extends to the compliance with the conditions about the location of farewells to be undertaken at locations that would not otherwise cause acoustic impacts on nearby residences. 7. The third matter which was of concern to me and I raised with Mr Leggat was the question of "unjustified enrichment" of the Second and Third Respondents if they were permitted to continue to conduct weddings and other functions through to the date when the Council might determine the two further development applications. I put the proposition to Mr Leggat that a charitable donation to at least in some way remove part of the profitability of the functions to what might be regarded as a "good cause" would be a desirable, if not entirely compensatory, mechanism and would be an appropriate public recognition of that aspect of my concern. 8. Mr Leggat has had instructions to give an undertaking to pay the sum of $3,500 within 28 days to the charity that I indicated would be acceptable to me if such an undertaking were offered, namely the African AIDS Foundation, a charity with a registered office at 37 Hilder Street, Elderslie, 2570. This would be an acceptable undertaking to be proffered by the Second and Third Respondents. 9. That outcome remains contested by Marshall Rural on two bases. The first is the submission that I cannot be satisfied that the ameliorative acoustic measures would achieve the outcome of inaudibility, both in terms of the evidence of Ms Albanese and the undertaking with respect to the relevant provisions of the now voided conditions of development consent. 10. I am not satisfied that that is the case. Particularly, the nature of the material that was in evidence during the substantive proceedings causes me to conclude that, if the conditions postulated by Ms Albanese, together with the adoption of the greeting and farewell provisions of the now void development consents by way of the undertaking proffered - there is unlikely to be any impact, or, if there is an impact, merely a de minimis one, of any acoustic nature on any nearby residence. 11. The proposition was also put, by taking me to the terms and conditions of the weddings conducted under the auspices of the business name Sydney Polo Club (being the trading name used by Argosy Agricultural for the conduct of such events), that the amount of $3,500 might not be an adequate public interest compensation for permitting the ongoing use pending the outcome of the Council's development assessment process. I accept readily that I do not have any evidence as to profitability or otherwise of the functions conducted under the auspices of the Sydney Polo Club. 12. I also accept that it is reasonable to assume that those activities are not conducted for philanthropic purposes and that the aim of conducting the enterprise is to make a profit from utilising the facilities owned by the Second Respondent and operated by the Third. However, it is not for me, I do not think, to deal with that with any degree of precision. 13. The matter that I raised and with respect to which Mr Leggat has proffered an undertaking is as much symbolic as it is (although it will be) of significant practical effect to the children affected in Africa. It is of symbolic importance for the purposes of these proceedings and amounts in some respects to a mea culpa being proffered by a public benefit on behalf of the Second and Third Respondents. 14. As a consequence of that, I am satisfied that, firstly, there is no basis of acoustic impact to impose an immediate restraint on the Second and Third Respondents and that it would be appropriate to accept the undertaking for the payment of $3,500 to the African AIDS Foundation within 28 days of the date of these orders. I therefore propose to make the following orders in the terms I outlined to the parties, with the suggested adjustment for clarity proposed by Mr Leggat. I do so noting the undertakings proffered by Mr Leggat and accepting them, that the operating provisions proposed by Ms Albanese and recited in [6] of her affidavit will be observed during the period of the suspension of the interdiction and that the amount paid will be paid within the time specified. I therefore make the following orders: 1. I declare that the First Respondent, by granting development consent for the use of the Polo Barn located at 1 Powells Lane, Richmond Lowlands, being Lot 25 in Deposited Plan 663770, for the purposes of a "function centre", did so in breach of the Environmental Planning and Assessment Act 1979; 2. Order that from Sunday, 27 March 2016 the Second and Third Respondents and their servants or agents are restrained from using the Polo Barn for the purpose of a temporary use as a "function centre" unless the First Respondent has issued a further development consent to the Second Respondent to use the Polo Barn for the temporary purposes of a "function centre"; 3. Declare that the First Respondent, by granting development consent for the use of the Sunnybrook Barn, located at 106 Ridges Lane, Richmond Lowlands, being Lot 27 in Deposited Plan 566434 and Lot 1 in Deposited Plan 797310, for the purposes of temporary use as a "function centre", did so in breach of the Environmental Planning and Assessment Act 1979; 4. Order that from Sunday, 27 March 2016 the Second and Third Respondents and their servants or agents are restrained from using Sunnybrook Barn for the purposes of a "function centre" unless the First Respondent has issued a further development consent to the Second Respondent to use Sunnybrook Barn for the temporary purposes of a "function centre"; 5. The exhibits, other than exhibit A, are returned; 6. Liberty to apply on three days' notice; and 7. Costs are reserved. ********** 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. Decision last updated: 15 February 2016