G. Gaweda v Clute Holdings Pty Limited
[1989] NSWLEC 185
•05/01/1989
Land and Environment Court
of New South Wales
CITATION: G. GAWEDA v. CLUTE HOLDINGS PTY. LIMITED [1989] NSWLEC 185 PARTIES: APPLICANT
G. GawedaFIRST RESPONDENT
Clute Holdings Pty. LtdSECOND RESPONDENT
Richard MannTHIRD RESPONDENT
FOURTH RESPONDENT
Richard Mann & Associates Pty Ltd
James Richardson Pty LtdFILE NUMBER(S): 40230 of 1987 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Heritage Act 1977 CASES CITED: Hannah No 2. v. Electricity Commission Of New South Wales (1985) DATES OF HEARING: 11/05/88, 12/05/88 DATE OF JUDGMENT:
05/01/1989LEGAL REPRESENTATIVES:
JUDGMENT:
His Honour: On 4 November 1987, the applicant commenced proceedings against the four named respondents seeking, as against each, a declaration that certain alterations made to the premises known as Liner House were in breach of s.57(1) of the Heritage Act 1977 because of an interim conservation order made pursuant to s.26 of the Heritage Act which applied to the building and the land. He also sought orders that each respondent, as far as practicable, "restore the appearance of the building to the condition the building was in immediately before such breach".
The matter came on for hearing on 11 May 1988. It was adjourned on 12 May 1988 in circumstances presently to be related. The matter was relisted for rehearing on 10 April and on that occasion the Court made the following orders by consent.
"1. The application against the first, second and third respondents be dismissed.
2. With respect to the respondent an order in the following terms:
'without any omission of liability and by consent':
(1) that James Richardson Pty. Limited shall in respect of the Ground Floor - Mezzanine area of Liner House, within (8) eight weeks of the date hereof lodge with the Heritage Council of New South Wales an Application under s.60 Heritage Act and with the Sydney City Council a Development Application and a Building Application for the rebuilding of the bond store presently situated on the mezzanine level and any necessary building work consequent upon the removal of the items referred to in paragraph 2(a), 2(b) hereof.
(2) James Richardson Pty. Limited shall within ten (10) weeks of the granting of the latest of the approvals referred to in paragraph 1 herein and to the satisfaction of the Manager, Heritage and Conservation Branch of the Department of Planning or his nominee ("the Manager") remove:
(a) the neon light attached to the spiral staircase;
(b) the risers carpet and cladding from the spiral staircase:
(c) the cladding on the balustrade on the mezzanine level;
(d) the showcase from beneath the spiral staircase; and
(e) the cladding from the Douglas Annand metal screen.
(3) Liberty to restore on three days' notice in the event of any difficulty in implementing these terms.
(4) The proceedings against James Richardson Pty. Limited otherwise dismissed".
It was also agreed as between the applicant and the first respondent that the applicant should pay the first respondent's costs which were noted to be $300.00.
The applicant submits there ought be no order for costs against the first, second and third respondents. It also submits that in the event that an order for costs is to be made against him in favour of the respondents, none of the three named respondents should receive their full costs. The second, third and fourth respondents submit that all costs should be paid by the applicant. In order to understand the competing submissions, it is necessary to outline the history of the matter and to express an opinion as to what might have been the outcome had the matter proceeded to a hearing on certain issues.
I set out a short chronology of events.
1. Interim Conservation Order No. 391 was made in respect of the building known as Liner House and the land on which it is situated on 19 April 1985 and was published in the Government Gazette on 3 May 1985. It remained in force for two years.
2. In or about October/November 1986, work was undertaken by the second and third respondents retained by the fourth respondent contrary to the Interim Conservation Order and in breach of s.57 of the Heritage Act.
3. By order made on 22 May 1987 and published in the Government Gazette No. 89 on 29 May 1987, Interim Conservation Order No. 737 was made in terms relevantly identical to the earlier Interim Conservation Order in respect of the building and the land abovementioned. The order was in force for a period of 12 months.
4. On 27 May 1988, Interim Conservation Order No. 845 was made over the land and building to be in force for a period of 12 months.
5. On 7 December 1988, a Permanent Conservation Order was made in respect of the land and buildings and published in the Government Gazette on 16 November 1988.
6. Proceedings were commenced against all respondents on 4 November 1978.
When the matter came on for hearing on 11 and 12 May 1988, the fourth respondent submitted that although there had been a breach of the Interim Conservation Order No. 391, the applicant could not obtain the relief sought because the subsequent and second Interim Conservation Order covered the alterations made illegally in 1986. The matter was adjourned on 12 May 1988, the Court being of the opinion that the fourth respondent should be entitled to all costs thrown away by reason of the adjournment. The applicant sought the adjournment because the period of the second Interim Conservation Order was coming to an end and it knew it would have to determine whether it recommended the making of a Permanent Conservation Order. It recommended that Permanent Conservation Order be made and a public inquiry was held. In accordance with the Commissioner's recommendation, a Permanent Conservation Order was made in December 1988. However, the Permanent Conservation Order sought permanently to conserve, inter alia, the build
ing and the land and, again, it included the unauthorised and illegal alterations undertaken in 1986. For relevant purposes, these alterations included the Douglas Annand mural and the cladding of the spiral metal stairway.
Prior to the matter coming on for hearing on 11 May 1988, the second and third respondents (the architects) made application that the proceedings against them be struck out, or alternatively, that any proceedings against them be postponed until the hearing of the case against the other named respondents. The second and third respondents had been prosecuted for breaches of the Heritage Act with respect to the work the subject of the present proceedings and had been fined by the Land and Environment Court. The application made by the second and third respondents referred to above was made on the stated basis that no orders of any kind could be made against them because neither was the owner of the land nor entitled to immediate possession. In my opinion, the submission that a person in breach of the Heritage Act is immune from liability pursuant to s.154 of the Act on the sole ground that he is not the owner or occupier of the land on which the breach was committed is to misunderstand the nature and extent of r
emedies available under the Act (Hannan No. 2 v. Electricity Commission of New South Wales 28 August 1985 unreported). However that may be, the application was refused. The applicants then asked for an order which was made by consent as follows:
"The second and third respondents remain as parties to the proceedings but be excused from attendance except to be heard with respect to orders, if any, that the Court may make with respect to the applicant".
The second and third respondents appeared at the hearing as they were entitled to do on 11 May but did not appear for part of the 12 May (as again even without an order they were entitled so to do).
On behalf of the fourth respondent, it was submitted at the hearing on 11 and 12 May that no order could be made against it although, it would seem, it was not seriously disputed that a declaration could be made that there had been a breach of the Interim Conservation Order. It was submitted that the second Interim Conservation Order was not validly made but that, if it were, it so operated to conserve the unauthorised work. It is not apparent to me why, if the Interim Conservation Order was not validly made, that circumstance would preclude the making of the orders sought once the earlier breaches were established. However, it now appears to be accepted by all parties that both the second Interim Conservation Order and the Permanent Conservation Order were validly made. The result is that the unauthorised alterations were the subject of an Interim Conservation Order in May 1988 and are now the subject of a Permanent Conservation Order.
Mr Chapple, on behalf of the Minister, has faintly submitted that I should construe the second Interim Conservation Order and the Permanent Conservation Order as excluding from their respective operations the subject matter of the proceedings in the Court. I reject this submission. In my opinion, the Interim and Permanent Conservation Orders each have the meaning appearing plainly on its face. Alternatively, it was submitted that notwithstanding the unauthorised alterations are now permanently conserved I would, if the matter had not been settled, have made an order requiring that the work be removed. To make such an order would amount to the Court making an order that the respondents undertake activity which would be in contravention of s.57 of the Heritage Act unless the Heritage Council had consented to the carrying out of that work on an application made to it pursuant to s.60 of the Act. The Council has not sought to revoke the Permanent Conservation Order nor has it invited any application pursuant to s
.60.
However, the essential submission of Mr Chapple is that the matter has been settled, the unauthorised work will be removed, the mural will be reinstated and the cladding removed from the stairs etc.. In these circumstances, he submits the appropriate order as between the applicant and the respondents is that there ought be no order for costs other than the order for costs made against the applicant in favour of the fourth respondent in May of 1988.
In my opinion, the motion of the second and third respondents before Hemmings J probably would not have succeeded. The circumstance that an order was made by consent that they be excused from appearing at the hearing does not, I think, have any real significance to the question of costs. In fact, as I have said, they did appear at the hearing for a time. I do not think, therefore, that the second and third respondents should be awarded their costs of the motion before Hemmings J or in respect of attendance at Court on 11 May. I am of the opinion that they are entitled to their costs with respect to the proceedings on 10 April 1989. They did not know what arrangements had been entered into between the fourth respondent and the applicant and that they came to the Court believing that orders were still being sought against them.
As was submitted by the fourth respondent and for reasons mentioned above, no orders would have been made remedying the breach of the type sought by the applicant at the time the orders were sought. On the first occasion, i.e. in May 1988, it would have amounted to the ordering of the doing of work which would have been in breach of an Interim Conservation Order and on the second, i.e. 10 April 1989, it would have amounted to the ordering of doing of work which would be in breach of a Permanent Conservation Order. An order for costs has been made in favour of the fourth respondent with respect to the proceedings in May 1988 and, in my opinion, no other order ought be made in favour of the fourth respondent with respect to the proceedings up until 12 May 1988. I am of the opinion that the fourth respondent is entitled to its costs of 10 April 1989. Had the matter proceeded, the applicant would not have succeeded in the relief sought for the reasons I have mentioned above. (Of course, the applicant may once aga
in have sought an adjournment but in that event the applicant would have been ordered to pay the costs of the fourth respondent.)
For the abovementioned reasons, my orders as to costs are as follows.
1. As between the applicant and the first respondent, the applicant to pay the first respondent's costs assessed at $300.00.
2. As between the applicant and the second and third respondents - with respect to the motion in May 1988 and the appearance before the Court in May 1988 - no order as to costs. The applicant to pay the second and third respondents' costs of the hearing before the Court on 10 April 1988.
3. As between the applicant and the fourth respondent - the order made on 12 May is confirmed, otherwise no order as to costs of the proceedings up until that date. I order the applicant to pay the fourth respondent's costs of the proceedings before the Court on April 10 but note that these costs are not to include work which was undertaken for the purpose of the public inquiry held during 1988.
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