Baulkham Hills Shire Council v Dix Gardner Pty Limited

[2004] NSWLEC 237

Land and Environment Court

of New South Wales

CITATION:	Baulkham Hills Shire Council v Dix Gardner Pty Limited and Anor [2004] NSWLEC 237
PARTIES:	APPLICANT Baulkham Hills Shire Council FIRST RESPONDENT Dix Gardner Pty Limited SECOND RESPONDENT Reham Developments Pty Limited
FILE NUMBER(S):	40514 of 2004
CORAM:	Pain J
KEY ISSUES:	Interlocutory Relief :- whether ex-parte injunction should continue - balance of convenience - whether evidence of environmental harm
LEGISLATION CITED:
CASES CITED:	Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148
DATES OF HEARING:	04/05/2004 05/05/2004
EX TEMPORE JUDGMENT DATE :	05/05/2004
LEGAL REPRESENTATIVES:	APPLICANT Mrs Kelly (barrister) SOLICITOR Coleman & Greig FIRST RESPONDENT No Appearance SECOND RESPONDENT Mr Gough (solicitor) SOLICITOR Storey & Gough

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

40514 of 2004

Pain J

5 May 2004
BAULKHAM HILLS SHIRE COUNCIL
Applicant
v
DIX GARDNER PTY LIMITED & ANOR
Respondent
Judgment


1. Yesterday, 4 May 2004, in these proceedings I made an order ex parte that the Second Respondent and its servants, agents and contractors be restrained until further order from carrying out work on the on-site detention structure and associated masonry walls located between the apartment building at 19-29 Sherwin Avenue, Castle Hill and Sherwin Avenue. I also made additional orders, in terms of abridgement of service and required that the matter be returnable before me today at 12 o’clock. As it was an ex parte matter it was important that I hear from the Second Respondent whose building work was restrained as a result of my order.

2. Today Baulkham Hills Shire Council, the Applicant in these Class 4 proceedings asks that I continue the order I granted yesterday for an interlocutory injunction until further order of the Court.

3. As I noted yesterday, the key ingredients which the Court needs to consider in granting an interlocutory injunction are those set out in Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148, at [153] to [154]:
(i) whether there is a serious question to be tried or that the Applicant has made out a prima facie case
(ii) that there will be irreparable injury for which damages are not adequate compensation
(iii) that the balance of convenience favours the granting of an injunction
and it is particularly in relation to the balance of convenience that I have heard submissions from the Second Respondent


4. In brief, the Second Respondent’s solicitor argued that there was no evidence of environmental harm put forward by the Council in support of its application for the interlocutory injunction and, further, that substantial financial hardship would be occasioned to the Second Respondent should that injunction continue. These are submissions he has given from the bar table based on instructions because, of course, in the shortness of time it is difficult to complete an affidavit from his client but I understand that the Second Respondent’s position is that the work on the apartment building is to be completed in four weeks and it will suffer financial hardship if the work is not completed.

5. It is also the understanding of the Second Respondent that it cannot finally sell any units in the development until strata title subdivision plans are approved by the Council and that this requires a separate application to be made to the Council. This requirement clearly is envisaged in condition 9 of the development consent which the Second Respondent has for the apartment buildings the subject of the consent.

6. It was put to me by the solicitor for the Council that given the outstanding issue in these proceedings it is unlikely that the Council would issue the development consent for the subdivision in any event. It was said by the solicitor for the Respondent that, given this, there was no need for this interlocutory injunction as any concern the Court may have about the units being completed and sold off could not in fact occur given this situation.

7. Mrs Kelly, on behalf of the Council, argued that, in addition to the matters put to me yesterday, I can infer from the evidence that there is harm to the environment due to the potential for visual impact of the works the subject of the injunction. This is due to the changes made to the front of the building that is currently under construction in relation to the design of the stormwater detention basins being constructed at the front of Blocks A and B.

8. She also put to me in submissions from the bar table that there may be possible public safety concerns arising from these changes as there may be water retention tanks at the front of the building and the adequacy of engineering works in relation to these may be of some concern. I note that particularly in relation to the public safety concerns there is no specific evidence put on by the Council evidencing a basis for this concern.

9. I need to weigh up the factors in Castlemaine Tooheys which I have already set out. I do consider, as I said yesterday, that there is a serious question to be tried in this case, to the limited extent which I can assess a case at this preliminary stage having heard only part of the parties’ argument. It appears to me that the Council does have a better than arguable case if the matter proceeds to a final hearing.

10. I note that the Council is not prepared to offer an undertaking to pay damages but, as I said yesterday, I do not consider this to be a bar to the issuing of an interlocutory injunction given the Council is a public authority endeavouring to enforce the planning laws as it sees them.

11. I consider that there is some evidence of environmental harm in the affidavit evidence of Mr Swan. I infer from the evidence he gives in par 6 of his affidavit dated 4 May 2004, which was read in Court yesterday, and the plans attached to his affidavit, that there is likely to be an impact on the visual amenity of the neighbourhood given that the plans approved by the development consent provided for an open fence with landscaping at the front of the premises. This open fence is currently being replaced under the plans approved with the construction certificate by a brick wall ranging in height from 0.6m to 1.8m in height along virtually the length of the development.

12. I consider that if this interlocutory injunction was to be lifted so as to allow the development to be completed, the fact it is so completed could be relied on by the Second Respondent to argue that the Court’s discretion should not be exercised to require demolition.

13. On balance I think that the interlocutory injunction ought to continue but the matter should be expedited as it appears to be a confined legal issue which need not occupy a great deal of Court time, and in relation to which there could be a reasonably quick decision by the Court. It is clearly in the parties’ interests to have the matter dealt with sooner rather than later.

14. For completeness, I note that the Second Respondent’s solicitor has advised the Court the Second Respondent intends to lodge a s 96 application under the Environmental Planning and Assessment Act 1979 with the Council in the near future in relation to the stormwater retention plans for the site. Both parties have submitted there is no reason to have these proceedings await the outcome of that process and I see no reason at this stage to disagree with that.

Orders

15. The Court makes the following orders:
1. These proceedings are expedited.
2. The Applicant is to file and serve all the evidence on which it intends to rely by 19 May 2004.
3. The Respondents are to file and serve all the evidence on which they intend to rely by 2 June 2004.
4. The Applicant is to file and serve evidence in reply by 9 June 2004.
5. These proceedings be listed before the Registrar on 12 May 2004 for the allocation of a hearing date for a one day hearing to be set down as soon as possible after 9 June 2004.
6. Liberty to apply on 2 days notice.