Grimes George Street Garage Pty Limited v Sydney City Council

[1999] NSWLEC 54

Land and Environment Court

of New South Wales

CITATION:	Grimes George Street Garage Pty Limited V Sydney City Council & Ors [1999] NSWLEC 54
PARTIES	Applicant Grimes George Street Garage Pty Limited
Respondents Sydney City Council (First Respondent) Roads and Traffic Authority (Second Respondent) Multiplex Limited (Third Respondent) John Kass (Fourth Respondent)
NUMBER:	40044 of 1999
CORAM:	Sheahan J
KEY ISSUES:	:- development consent - undertaking as to damages
LEGISLATION CITED:	development consent - undertaking as to damages
DATES OF HEARING:	03/05/1999
EX TEMPORE JUDGMENT DATE:	03/05/1999
LEGAL REPRESENTATIVES:	Applicant Mr G Flick, SC Freehill Hollingdale and Page Respondents 1 and 4: Mr S Austin QC Mr Astill of Blake Dawson Waldron Respondent 2: Mr Simpkins, Barrister Mr Poulos of Clayton Utz Respondent 3: Mr Powers of Minter Ellison

JUDGMENT:


IN THE LAND AND Matter No: 40044 of 1999
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 5 March 1999

GRIMES GEORGE STREET GARAGE PTY LIMITED
Applicant

v

SYDNEY CITY COUNCIL
First Respondent
ROADS AND TRAFFIC AUTHORITY
Second Respondent
MULTIPLEX LIMITED
Third Respondent
JOHN KASS

Fourth Respondent

EXTEMPORE JUDGMENT
(Revised from Transcript)

HIS HONOUR:

1. The Applicant has commenced proceedings in class 4 of the court's jurisdiction, seeking the following substantive relief:

1. A declaration that a consent given by the Council on 17 June 1997 is void;
2. A declaration that certain works proposed for the intersection of George, Bridge, Grosvenor and Dalley Streets Sydney constitute "development" within the meaning and for the purposes of the Environmental Planning and Assessment Act (1979).
3. A declaration that such works constitute the carrying out of work not within the terms of the relevant development consent.
4. A declaration that any approval for such works given by the fourth respondent in his capacity as a senior officer of the council is void.
5. An injunction restraining the respondents from such works.
6. An injunction restraining the fourth respondent from giving such a relevant approval without affording the applicant a hearing.

2. The class 4 application goes on to claim some interlocutory relief but the proceedings are before me today to determine prayers for the expedition of the proceedings and for interlocutory relief as set out in a notice of motion in somewhat wider terms, namely:

(a) that any and all of the respondents be restrained from giving effect to or otherwise acting upon the relevant consent by doing such works or altering the position of Dalley Street other than in a manner consistent with a plan annexed to the notice of motion; and
(b) that the fourth respondent be restrained from granting relevant approvals without affording the applicant a hearing.

3. The applicant has, since 1972, conducted a public carpark for up to 150 cars in the basement floors of 220 George Street, Sydney, at the corner of Dalley Street, which premises they now lease for the purpose from a company known as American International Group.

4. Access to the carpark is secured from Dalley Street, and access to Dalley Street has apparently never been restricted, except that it is a one-way street running from George Street towards Pitt Street.

5. The evidence suggests that fifty-five per cent of the cars entering the carpark cross George Street from Grosvenor Street into Dalley Street, forty-three per cent turn right from the northbound lanes of George Street into Dalley Street, and only two per cent turn left from the southbound lanes of George Street into Dalley Street.

6. The currently proposed streetscape works in George Street will restrict access to Dalley Street to the traffic turning left from the southbound lanes of George Street.

7. In 1991 some earlier streetscape works were discussed between Grimes and the council. The negotiations at that time are detailed in the affidavit of Ms Knox who deposes that at least the fifty-five per cent that I have referred to would have had to detour past several competitors if such streetscape proposals had been implemented. She deposes to an arrangement agreed to by the Sydney Traffic Committee in 1991 "protecting", as it were, the applicant's entry arrangements for its carpark.

8. She further deposes that it was only on 8 February 1999 that she became aware of current streetscape proposals, which will preclude Grosvenor Street and northbound George Street patrons of the carpark from making a direct turn into Dalley Street, and would require them to make significant detours in order to access the carpark. The proposals would also preclude the filling of some petrol tanks which have apparently been located at the carpark for many years.

9. The applicant contends that the detailed proposals being implemented by the council or on its behalf appear wider in ambit than the subject development consent dated 17 June 1997.

10. The council for its part appears to have acknowledged in both 1991, and apparently also in 1997, the adverse impact the proposed changes to Dalley Street would have on the carpark business, and have sought to negotiate what is described in the evidence as "any reasonable solution", but the proposed works are now imminent, and the Court's relief is sought.

11. The applicant contends that it received no notification of the proposed works. Ms Knox deposes also to an arrangement in the applicant's current lease, requiring the lessor to oppose any proposal which might adversely affect the carpark, and contends, over Mr Austin's objection, that she can produce evidence that the lessor also received no notification.

12. For its part the council contends that it satisfied all its obligations to advertise and notify the proposals, and it will rely upon, at the hearing, inter alia, s 104A of the Environmental Planning and Assessment Act .

13. The applicant also raises substantive issues regarding the implementation of the subject consent, especially of those conditions which require further approval processes by the fourth respondent, on final construction design details, including traffic and parking control matters.

14. Indeed, the applicant asserts that the relevant approvals have not been obtained for the particular works about which it complains.

15. After hearing argument from the legal representatives of all parties I am satisfied that there are serious issues to be tried, at least so far as the council, the first respondent, and its officer, the fourth respondent, are concerned. Having considered the evidence and submissions made on behalf of the second respondent, the Roads and Traffic Authority, I am not so satisfied of a serious issue to be tried as between that authority and the applicant.

16. The third respondent, Multiplex, is the builder engaged to do the work. It sought to be heard only on the question of undertakings as to damages, and asked the Court to note that it neither consented to nor opposed interlocutory relief. The correct name of the third respondent is to be amended to the company Multiplex Constructions Pty Limited ACN008687063.

17. It seems to me that all parties would be pleased for the Court to grant expedition as no argument has been raised against my making such an order.

18. The many complex and substantive issues in this case cannot be prejudged at an interlocutory hearing. I can act only upon the evidence at it stands before me today, and I have determined, as I said, that there is a serious issue to be tried. I must, therefore, turn my attention to the question of the balance of convenience.

19. The proposed works have enormous, and quite possibly irreparably damaging, implications for the applicant. They are also an important part of the streetscape upgrading program of the council. That program would appear to offer substantial benefits to the general public, and these works constitute a relatively small proportion of that program, which covers the entire length of George Street from Railway Square to Circular Quay.

20. The balance of convenience tips strongly in favour of the applicant, save for the fact that it does not proffer the usual undertaking as to damages. That failure may not necessarily be fatal to such an application; however, it is clear that the council and the third respondent also have serious commercial interests to be considered in the balance of exercising my discretion to grant or refuse interlocutory relief and the third respondent in fact asked the Court to order that the undertaking as to damages be given.

21. The reason I am late coming back on the bench is that I can find no authority for the proposition that the Court could order that such an undertaking be given by an applicant who consistently declined to proffer it during the hearing.

22. In the absence of the usual undertaking as to damages, and in the absence of any strong elements of public interest behind the case mounted by the applicant, I have determined that the Court should not grant interlocutory relief.

23. The only orders that I am prepared to make today are:

1. The hearing of the proceedings be expedited.
2. That the name of the third respondent be amended as outlined.

24. I adjourn the matter to the Registrar's callover list on Wednesday 10 March for the purpose of setting an early hearing date and giving further directions for the preparation of the matter for hearing.

25. All the exhibits that were tendered may be returned. I thank Mr Simpkins for his copy of the Roads Act , which may also be returned, and I reserve all questions of costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 5 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

Associate:
Dated: 5 March 1999