Sydney City Council -v- Zizza & Ors [1999] NSWLEC 77

Sydney City Council -v- Zizza & Ors [1999] NSWLEC 77

The first respondent was not liable for the applicant's costs because he did not acquiesce in the unlawful use of the premises and was not carrying out development or otherwise in breach of the Environmental Planning & Assessment Act. He had included lease terms prohibiting illegal use, his agent promptly warned the tenant, he consented to a development application as an attempt to make the use lawful, and he served a termination notice that resulted in vacant possession and cessation of the use.

Jurisdiction
Australia
Judgment Date
08 April 1999
Procedural Posture
Proceedings for Injunctive Relief Restraining Use of Premises Without Development Consent Under the Environmental Planning & Assessment Act 1979 / Final Orders by Consent and Contested Costs Issue
Outcome
Permanent restraining orders made by consent; applicant's claim for a costs order against the first respondent rejected; applicant ordered to pay the first respondent's costs of the hearing; otherwise no order as to costs.
Legal Topics
['use of Premises as a Brothel Without Development Consent' 'lessor Liability for Costs Where Breach Committed by Lessee' 'acquiescence in Unauthorised Use' 'carrying Out Development Under the Environmental Planning & Assessment Act 1979']
['environmental Planning Law' 'land Use' 'costs' 'injunctions'] ['use of Premises as a Brothel Without Development Consent' 'lessor Liability for Costs Where Breach Committed by Lessee' 'acquiescence in Unauthorised Use' 'carrying Out Development Under the Environmental Planning & Assessment Act 1979']

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Procedural Posture

Proceedings for Injunctive Relief Restraining Use of Premises Without Development Consent Under the Environmental Planning & Assessment Act 1979 / Final Orders by Consent and Contested Costs Issue

Legal Issues

  1. 1 ["Whether the first respondent lessor should pay the applicant's costs where the unlawful use of premises was carried out by the lessee." 'Whether the first respondent was in breach of the Environmental Planning & Assessment Act 1979 or had acquiesced in the breach.' 'Whether the first respondent was carrying out development by leasing premises later used unlawfully by the tenant.']

Ratio Decidendi

The first respondent was not liable for the applicant's costs because he did not acquiesce in the unlawful use of the premises and was not carrying out development or otherwise in breach of the Environmental Planning & Assessment Act. He had included lease terms prohibiting illegal use, his agent promptly warned the tenant, he consented to a development application as an attempt to make the use lawful, and he served a termination notice that resulted in vacant possession and cessation of the use.

Court Disposition

Permanent restraining orders made by consent; applicant's claim for a costs order against the first respondent rejected; applicant ordered to pay the first respondent's costs of the hearing; otherwise no order as to costs.

Orders

  • ['The first respondent, his lessees, agents, employees, invitees and occupiers be restrained from using or permitting to be used the premises known as 201 Bourke Street, Darlinghurst within the City of South Sydney for a commercial use without obtaining development consent therefor beforehand in accordance with the...