Drivas & Anor v. Silcock & Anor

[2009] QSC 72

SUPREME COURT OF QUEENSLAND

CITATION:

Drivas & Anor v Silcock & Anor [2009] QSC 72

PARTIES:

EMMANUEL DRIVAS and MARIA DRIVAS
(applicants)
v
PHILLIP SILCOCK and PAMELA JILL SILCOCK
(respondents)

FILE NO/S:

1202 of 2009

DIVISION:

Trial Division

PROCEEDING:

Injunction

DELIVERED ON:

6 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2009

JUDGE:

Chief Justice

ORDER:

1.   Upon the applicants respectively, and Drivas Lakes Pty Ltd, by Counsel for the applicants, giving the usual undertaking as to damages, there will be an order that the respondents be restrained, whether by themselves, their servants or their agents, pending trial or further earlier order, from carrying out any construction work upon, or occupying, premises at 79 Kneale Street, Holland Park West, being Lot 36 on Survey Plan 166736 in the County of Stanley, Parish of Yeerongpilly.

2.   There will also be an order that costs be reserved.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTION – injunction to restrain the carrying out or construction work unlawfully – discretionary considerations

Integrated Planning Act 1997 (Qld) s 4.1.33, s 4.3.1

Australian Broadcasting Corporation v O’Neil Laboratories Pty Ltd (2006) 227 CLR 57, applied
Day v Pinglen Pty Ltd (1981) 148 CLR 289, considered
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672, considered

COUNSEL:

D Kelly SC for the applicant
R Lilley SC for the respondent

SOLICITORS:

Herber Gear for the applicant
Deacons for the respondent

1. CHIEF JUSTICE: The applicants are the owners of a house property at Holland Park West.  It enjoys good and distinctive city views.  The respondents are constructing a house on the neighbouring land.  The existing structure is now at full height.  Trade and fit out work remains to be done, and that will cost about one-half of the amount already spent.

1. According to a development application made by the respondents on 12 March 2009, the proposed maximum height of the house above natural ground level is identified at 11.49 metres.  Any construction above 8.5 metres required the grant of a development permit because it would constitute “assessable development” under the Integrated Planning Act 1997 (Qld). Carrying out construction work without the requisite permit involves the commission of an offence, under s 4.3.1(1) of the Act.

1. While there is some dispute about the height of the building, and it is common ground that that is a triable issue, there is considerable evidence that it exceeds 8.5 metres, including from a Brisbane City Council land surveyor.  In addition, as mentioned, the respondents have recently sought a development permit on the basis of a height of 11.49 metres.

1. The applicants contend that before the construction began, the respondents orally agreed that the proposed roofline would not be higher than the top of a hedge on the border of the property, and that on that basis, the applicants raised no objection to the proposal.  The respondents’ departure from that understanding is the foundation for claims of breach of contract and estoppel.

1. The applicants now seek an interlocutory injunction restraining the respondents, pending trial, from further construction and/or occupancy of the house.

1. Mr Lilley SC, who appeared for the respondents, acknowledged that there is a triable issue as to whether continuing with the construction would be unlawful.  There is a prima facie case that it would be (Australian Broadcasting Corporation v O’Neil Laboratories Pty Ltd (2006) 227 CLR 57, 82). I accept there is an apparently strong case that the construction has been, and would be, carried out unlawfully. It suffices to mention four points made by Mr D Kelly SC, who appeared for the applicants:

(a)        the height issue is supported by three independent surveyors, none of whom was involved in the preparation of the plans which were submitted for the original development permit;

(b)        of those three surveyors, one is the Council’s own surveyor, and what is being interpreted in this case is the Council’s own planning document;

(c)        the only surveyor prepared to say that the house is below 8.5 metres is Mr Hayes, and he is not disinterested, his survey having led to the obtaining of the original development permits; and

(d)        the respondents have been troubled by the issue to the extent that they lodged the new development application, seeking approval on the basis that the proposed maximum height above ground is 11.49 metres.

1. The applicants seek to preserve the status quo pending trial, meaning that construction now cease.  Mr Lilley emphasized that the point of interest for the applicants, the height of the building, has already been achieved.  He submitted that there would be no utility in restraining the carrying out of further work, because it would not bear upon the matter of concern to the applicants.  Mr Kelly countered that completing the building now could enhance the respondents’ ultimate prospects of avoiding an injunction on discretionary grounds.  In response, Mr Lilley offered an undertaking that at any final hearing, the respondents would not rely in that regard on completion of further work for occupancy.  Nevertheless, the trial Judge would confront the spectre of a possibly completed building, rendering any prospect of demolition, whole or in part, the more significant.

1. The basis on which the applicants seek injunctive relief to restrain the carrying out of work unlawfully is their “special interest” because of the view consideration.  See Day v Pinglen Pty Ltd (1981) 148 CLR 289, 299. That gives them the standing to seek to restrain the commission of this unlawful conduct, which they do in their own right, independently of the Attorney-General (Wentworth v Woollahra Municipal Council (1981) 149 CLR 672, 681). That being so, I would not be dissuaded from granting an injunction, if otherwise appropriate, because of the matters in the preceding paragraph.

1. The submissions before me substantially focused on the balance of convenience.  The respondents refer to cancellation costs, should an injunction issue.  Delaying construction may increase costs.  There will be impairment of the respondents’ commitments to suppliers.  Costs will be incurred in dismantling leased scaffolding.  There will be further interest costs for bridging finance.  A proposed expansion of the male respondent’s business will be delayed.  The applicants and their company, Drivas Lakes Pty Ltd, offer valuable undertakings as to damages, which I consider a sufficient response to the above concerns.

1. Another consideration relevant to the balance of convenience is that the respondents should be entitled to the determination of their outstanding application for a development permit by early to mid-May.  I discussed with Counsel whether that warranted deferring any order pending the outcome of the application.  A difficulty is that one could only speculate as to the likely outcome, and as to the time when a result will actually ensue.  There is another related consideration which bears on this. 

1. On 20 March 2009 the respondents were served with an enforcement notice under the Integrated Planning Act 1997 (Qld), requiring that building work cease, subject only to works necessary to make the premises safe. On the same day, the respondents filed a notice of appeal against the enforcement notice in the Planning and Environment Court. Because of s 4.1.33 of the Act, the lodging of the notice of appeal operated to stay the operation of the enforcement notice. The respondents accordingly face a situation where the relevant local authority, the Brisbane City Council, has reached the conclusion that they are acting unlawfully and has required them to stop.

1. I accept Mr Kelly’s submission that the preservation of the status quo at this stage is a powerful consideration, because “what the respondents are attempting to do is to carry on with their construction work in circumstances where they are confronted with a compelling case that what they are presently doing is unlawful”. 

1. I conclude that the balance of convenience in this case favours the granting of an interlocutory injunction.  It will be noted that comparatively very early trial dates may be secured in this jurisdiction for cases warranting speedy determination.

1. Upon the applicants respectively, and Drivas Lakes Pty Ltd, by Counsel for the applicants, giving the usual undertaking as to damages, there will be an order that the respondents be restrained, whether by themselves, their servants or their agents, pending trial or further earlier order, from carrying out any construction work upon, or occupying, premises at 79 Kneale Street, Holland Park West, being Lot 36 on Survey Plan 166736 in the County of Stanley, Parish of Yeerongpilly.

1. There will also be an order that costs be reserved.