Armidale Dumaresq Council v Schmitz

[2011] NSWLEC 236

Land and Environment Court

New South Wales

Medium Neutral Citation:

Armidale Dumaresq Council v Schmitz [2011] NSWLEC 236

Decision date:

30 November 2011

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

1.the Court notes the following undertakings given by the respondent:

(i) with the exception of the works described below in paragraph 2, Ms Schmitz, including by her servants and agents, undertakes not to carry out any further building work at 188 Markham Street, Armidale, being Lot A DP 450294 ("the premises"), until 16 December 2011; and

(ii) undertakes to permit officers of the applicant to enter the property at 188 Markham Street for the purpose of inspecting the structure the subject of the summons at the rear of the premises in order to ascertain whether it has filled with water and in order to determine its structural integrity; and

2.the Court orders that by 5.00pm on 2 December 2011 the respondent is to construct a 300mm soil bund along the common boundary between 188 Markham Street, Armidale and 176 and 174 Kentucky Street, Armidale, commencing at the eastern end of the structure the subject of the summons at the rear of the premises, to carry stormwater into Markham Street, or such other works as are agreed to by the parties to prevent stormwater from 188 Markham Street entering neighbouring properties;

3.the Court orders that the costs of the motion be reserved;

4.the Court orders that the matter is stood over to 2.00pm on 16 December 2011 before the Duty Judge for mention;

5.the Court orders that when the matter is listed before the Duty Judge on 16 December 2011 the matter is to be heard by way of telephone directions hearing; and

6.liberty to restore on 24 hours notice.

Catchwords:

INJUNCTIONS: whether injunctive relief should be granted that the respondent undertake works to stop stormwater runoff escaping from the property - whether there is a serious question to be tried - whether the balance of convenience favours the granting of the injunction - injunctive relief granted

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 121B
Local Government Act 1993, s 68
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:

Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207
Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103

Category:

Interlocutory applications

Parties:

Armidale Dumaresq Council (Applicant)
Petra Schmitz (Respondent)

Representation:

Mr David Clifton (Solicitor) (Applicant)
Ms Petra Schmitz (In person) (Respondent)
Liston & Clifton Lawyers and Conveyancers (Applicant)
Ms Petra Schmitz (In person) (Respondent)

File Number(s):

41126 of 2011

Ex Tempore Judgment

The Council Seeks Urgent Injunctive Relief

1. This is an application filed by Armidale Dumaresq Council ("the council") for urgent interlocutory relief against the respondent, Ms Petra Schmitz. The relief is directed towards the restoration, undertaken at the rear of 188 Markham Street, Armidale ("the premises"), of what purports to be the septic system and the construction of a new septic tank ("the construction").

1. The proceedings were commenced by summons filed by the council in Class 4 of the Court's jurisdiction on 25 November 2011.

1. Ms Schmitz has agreed to give an undertaking that, with the exception of the works described in order 2 at the end of this judgment, that she be restrained from carrying out any further building work at the premises until 16 December 2011, when the proceedings are to come back before the Court by way of mention.

1. A further undertaking has been given by Ms Schmitz that officers of the council be permitted to enter onto the premises in order to ascertain whether the newly constructed septic tank and system has filled up with water and to determine its structural integrity.

1. In order to understand these two undertakings and the order that the Court proposes to make dealing with the rectification of the potential stormwater flooding arising from the construction works, it is necessary to have regard to the events giving rise to the filing of the summons and the seeking of the injunctive relief. This background is contained in two affidavits of Mr Brendan Miller, the first sworn on 23 November 2011 and the second sworn on 29 November 2011. Mr Miller is a development engineer for the council.

The Construction of the New Septic Tank Absent Consent

1. In his first affidavit, Mr Miller described the construction carried out at the back of the premises. Importantly, he noted that upon inspecting the premises after a complaint from a neighbour he spoke to a person called "Fred", who informed him that the construction works were being undertaken on the premises. Mr Miller inspected the construction and observed a partially built septic tank. He ascertained that the construction was not the subject, as it was required to be under the relevant planning controls, of development consent.

1. By reason of the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 the premises were not located in a rural zone and did not satisfy the criteria for exempt development. Therefore, the development required consent and it was not in dispute that consent had not been granted.

1. It is also possible that the construction of a stormwater detention system required approval under s 68 of the Local Government Act 1993.

1. Accordingly, on 14 November 2011 the council issued a stop work order pursuant to s 121B of the Environmental Planning and Assessment Act 1979. The order was sent to Ms Schmitz by post to her residential address and served on "Fred" at the property. Notwithstanding the issuing of the stop work order the construction continued at the premises.

1. This is in part because, unfortunately, Ms Schmitz was not personally made aware of the terms of the stop work order until the evening of 15 November 2011. Furthermore, as Ms Schmitz submitted to the Court, the terms of the order were ambiguous in so far as they referred to the "illegal structure", which could have meant either the septic tank works or the erection of a fence at the front of the premises. For present purposes, however, the ambiguity does not matter.

1. Mr Miller noted in his first affidavit that "Fred" had claimed that he was an employee of Ms Schmitz and that it was presumably on her instructions that he was carrying out the construction works.

1. Mr Miller deposed in his first affidavit that once the down pipes were connected to the new tank and it filled up with water he was concerned that because the structure is 1.5m deep, the water will stay there for prolonged periods of time until the water reaches the top of the tank where upon it will flow out of the new outlet pipe at the top of the structure.

1. There were also concerns about the structural integrity of the tank. It was estimated that the tank may hold up to five tonnes of water. If the tank were to crack, or worse, the consequences with respect to flooding of not only the premises, but also neighbouring properties, were obvious. In addition, there was the real possibility that the stagnant water in the tank would harbour mosquito larvae in warmer months.

1. The possibility of flooding is very real because at least two of the adjoining properties, namely, 174 and 176 Kentucky Street, are at a lower elevation than the premises.

1. In Mr Miller's second affidavit he deposed that the council had received a complaint from Mr Philip Bridgeman, the property owner at 174 Kentucky Street (this is the property on the lower north side of the premises), that water was entering his property including the rear bedroom of his house and that the water appeared to be coming from the driveway of the premises.

1. On 29 November 2011, Mr Miller phoned Ms Shonette Bridgeman, the owner of 174 Kentucky Street, and she confirmed the complaint. As a consequence, Mr Miller inspected the driveway at the premises and it was his opinion that there was insufficient cross fall within the driveway in order to prevent water entering the property at 174 Kentucky Street. Accordingly, it was Mr Miller's view that if a 300mm high bund or shallow swale drain was constructed along the common boundary on the northern side of the two properties, this would, in his opinion, stop water entering 174 Kentucky Street and instead carry it into Markham Street.

Injunctive Relief is Appropriate

1. When the matter first came before the Court on 29 November 2011, orders were made for the parties to file and serve any evidence upon which they sought to rely in respect of the application for injunctive relief. Originally the notice of motion had been set down for hearing on 29 November 2011, however, after discussion with the parties, and because Ms Schmitz had only just been made aware of the application, it was agreed to defer the hearing of the notice of motion for 24 hours to enable her to obtain legal representation and to file and serve any evidence on which she intended to rely.

1. Ms Schmitz does not reside at the premises and is not currently in Armidale. It has therefore been difficult for her to obtain legal representation in the short time available. It has also been difficult for her to prepare her evidence. The Court understands this, but nevertheless, it is faced with the largely unchallenged evidence of Mr Miller as to the potentially disastrous consequences of the unauthorised construction works.

1. Turning to the legal principals applicable with respect to the granting of an injunction, in order to obtain an interlocutory injunction it is necessary for the applicant to establish that there is a serious question to be tried and that the balance of convenience favours the granting of the injunction. Normally the Court does not allow a preliminary trial or give or withhold interlocutory relief upon a forecast of the ultimate result of the case ( Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207 at [37] and Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 at [4]-[5]).

1. Turning to whether there is a serious question to be tried, the council relies on the matters contained in the summons, in particular, whether or not consent was granted to construct the septic tank and associated stormwater infrastructure. Having regard to the evidence of Mr Miller, it would appear that there is a serious question to be tried, namely, whether such consent was necessary given the concession by Ms Schmitz that none was obtained granted.

1. Turning to the balance of convenience, I note that Ms Schmitz was prepared to give an undertaking in order to remediate the current issue of stormwater runoff from the premises. The council, however, did not accept this undertaking and instead pressed the Court to make an order compelling her to rectify the problem immediately. The council was concerned that if no order was made, the remediation works would not be carried out in a timely manner.

1. Given the potential deleterious effects of the stormwater runoff to, at the very least, the property at 174 Kentucky Street, and given the potential structural problems that may be associated with the new septic tank, the balance of convenience plainly favours the making of the order sought. I did not understand Ms Schmitz to be suggesting otherwise. In making the order the Court notes that Ms Schmitz is not presently in Armidale and it will be difficult for her to organise remediation works immediately. The Court is therefore willing to permit a longer period in which she is to complete these works.

1. The Court is therefore prepared to exercise its discretion to grant an order to cause works to be undertaken at the premises in order to stop stormwater flowing from that property onto adjoining residences.

1. The form of the order is set out below. It is effectively that a bund be constructed along the terms of that suggested by Mr Miller in his affidavit, or alternatively, that such other works as agreed to by the parties are to be carried out.

1. The orders of the Court are therefore as follows:

(1) the Court notes the following undertakings given by the respondent:

(i) with the exception of the works described below in paragraph 2, Ms Schmitz, including by her servants and agents, undertakes not to carry out any further building work at 188 Markham Street, Armidale, being Lot A DP 450294 ("the premises"), until 16 December 2011; and

(ii) undertakes to permit officers of the applicant to enter the property at 188 Markham Street for the purpose of inspecting the structure the subject of the summons at the rear of the premises in order to ascertain whether it has filled with water and in order to determine its structural integrity; and

(2) the Court orders that by 5.00pm on 2 December 2011 the respondent is to construct a 300mm soil bund along the common boundary between 188 Markham Street, Armidale and 176 and 174 Kentucky Street, Armidale, commencing at the eastern end of the structure the subject of the summons at the rear of the premises, to carry stormwater into Markham Street, or such other works as are agreed to by the parties to prevent stormwater from 188 Markham Street entering neighbouring properties;

(3) the Court orders that the costs of the motion be reserved;

(4) the Court orders that the matter is stood over to 2.00pm on 16 December 2011 before the Duty Judge for mention;

(5) the Court orders that when the matter is listed before the Duty Judge on 16 December 2011 the matter is to be heard by way of telephone directions hearing; and

(6) liberty to restore on 24 hours notice.

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Decision last updated: 07 December 2011