Baulkham Hills Shire Council v Dix Gardner Pty Limited

[2004] NSWLEC 271

Land and Environment Court

of New South Wales

CITATION:	Baulkham Hills Shire Council v Dix Gardner Pty Limited and Anor [2004] NSWLEC 271
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 :- ex-parte injunction granted - construction certificate inconsistent with development consent
LEGISLATION CITED:	Environmental Planning and Assessment Regulation 2000, cl 145
CASES CITED:	Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148
DATES OF HEARING:	04/05/2004
EX TEMPORE JUDGMENT DATE :	05/04/2004
LEGAL REPRESENTATIVES:	APPLICANT Mrs Kelly (barrister) SOLICITOR Coleman & Greig FIRST AND SECOND RESPONDENTS No appearance

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

40514 of 2004

Pain J

4 May 2004
BAULKHAM HILLS SHIRE COUNCIL
Applicant
v
DIX GARDNER PTY LIMITED
First Respondent

REHAM DEVELOPMENTS PTY LIMITED
Second Respondent

Judgment on Ex Parte Interlocutory Injunction


1. The Council is seeking an interlocutory injunction ex parte. I am prepared to issue an ex parte injunction on the basis of the material put before me today by the Council. I will outline what that material is. I have been handed in Court today a Class 4 application, which will be filed by the Council later today, in relation to the First Respondent, Dix Gardner Pty Limited, the certifier relevant to these proceedings, and the Second Respondent, Reham Developments Pty Limited, in relation to which interlocutory relief is sought. The Second Respondent is currently undertaking building work at 19-29 Sherwin Avenue, Castle Hill and that building work is taking place on the basis of a development consent issued by the Council and a construction certificate issued by the First Respondent for the construction of two apartment blocks at those premises.

2. The Council seeks an order that the Second Respondent by 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.

3. In support of the application for the ex parte interlocutory injunction before me today, I was provided with an affidavit of Mr Jeremy Swan, a town planner employed by the Council, dated 4 May 2004. Essentially the Council has come before the Court today because it is concerned that the construction certificate issued by the First Respondent fails to comply with condition 15 of the development consent issued by the Council to Reham Developments Pty Limited dated 4 September 2001. In particular there is concern on the Council’s part in relation to the on-site stormwater detention plans approved by the Council, at annexure B to the affidavit, which show a detention tank to be underground at the side of Block B. However it appears that, based on the plans to the construction certificate which are annexure C to the affidavit, in fact what is being built are four detention basins above ground, being two detention basins at the front of each of Block A and Block B. These above-ground detention basins are located at the front of the premises on Sherwin Avenue and require a masonry wall to be built to retain those four tanks. Consequently there is a change in the overall appearance of the buildings at the front. In contrast to this, the development consent was granted for an open plan fence, located two metres further back than the current masonry wall being built, and also certain landscaping, all of which will not be built in accordance with the development consent if these detention basins are built according to the construction certificate plans.

4. The affidavit of Mr Swan also attests to two separate conversations which Mr Swan had with a Mr Maher and a Mr Klinsik, who were working on the site as foremen on different dates, during which Mr Swan advised that the work should cease immediately. Mr Swan sets out at par 17 of his affidavit a conversation he had with Mr Maher in which Mr Maher indicated that the response was the work would continue on the wall. That conversation I note occurred yesterday, 3 May 2004.

5. My understanding of the legal case that is being put by the Council is that no reasonable certifier could have granted an approval for a construction certificate providing for the detention works as this construction certificate before me does require. I understand that is an argument to be based on cl 145 of the Environmental Planning and Assessment Regulation 2000 which deals with the powers of certifying authorities to issue construction certificates.

6. Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148, a decision of the High Court, sets out the relevant principles governing an application of this nature and lists a number of factors which must be shown before an injunction will be granted, as follows:
(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

7. I will deal with these factors to the extent I can on an ex parte application. The first of these factors is “Is there is a serious question to be tried?”. I am of the view that there is and that it is appropriate that I take this into account in deciding that an ex parte injunction today should issue. In relation to damages, I note that there is no undertaking as to damages offered by the Council, however I consider that, as the Council is a public authority undertaking its public duties as it is required to do under the Environmental Planning and Assessment Act 1979, and as it has clearly not sat on its hands in relation to seeking relief, that it is appropriate nevertheless that an injunction be issued despite the fact that no undertaking as to damages is to be offered.

8. In relation to balance of convenience I am obviously only hearing half of the argument today, given that this is an ex parte injunction, but clearly the longer the work continues in the event that there is an order made for demolition, the greater the prejudicial impact may be on the Respondents in having such an order made. I think that, on this occasion, the balance of convenience at this stage does favour the issuing of an injunction given that the work is continuing.

9. However as this is only an ex parte injunction and I have not heard at all from the party in relation to whom the injunction is being issued, I think it should only issue for a short time. I will issue the injunction now until 12 midday tomorrow at which time the parties are to return before me to determine whether it is appropriate for the injunction to continue.

Orders

10. The Court makes the following orders:

1. 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.
2. That the Applicant serve a copy of this order on the Respondents by 3 pm on 4 May 2004.

3. That the time for service of the Class 4 Application be abridged to 3 pm on 4 May 2004.

4. That the proceedings be listed before Justice Pain at 12 noon on 5 May 2004.