Hunters Hill Council v Hanan Faress

[2006] NSWLEC 214

Land and Environment Court

of New South Wales

CITATION:	Hunters Hill Council v Hanan Faress [2006] NSWLEC 214
PARTIES:	APPLICANT Hunters Hill Council RESPONDENT Hanan Faress
FILE NUMBER(S):	40148 of 2006
CORAM:	Jagot J
KEY ISSUES:	Injunctions and Declarations :- Variation of interlocutory injunction to permit works necessary for saftey and environmental protection, pending resolution of proceedings
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Pt 4, s 124(3)
DATES OF HEARING:	03/04/2006
EX TEMPORE JUDGMENT DATE:	04/03/2006
LEGAL REPRESENTATIVES:	APPLICANT A Pickles SOLICITORS Abbott Tout RESPONDENT J McKenzie SOLICITORS Kalantzis Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

3 April 2006

40148 of 2006

HUNTERS HILL COUNCIL
Applicant

HANAN FARESS
Respondent

JUDGMENT

Jagot J:
Introduction

1 This is a notice of motion filed by the respondent to class 4 proceedings commenced by Hunters Hill Council (“the Council”).

2 The notice of motion seeks to vary certain interlocutory orders made by this Court on 23 February 2006. On that day, upon the Council giving the usual undertaking as to damages, Talbot J (insofar as relevant) ordered that:

1. Until further or other order the respondent by herself, her servants, or agents, be restrained from carrying out any further works on lot 1, DP 533230, and lot 1, DP 572956, described as 10A The Point Road, Woolwich, other than the works referred to in orders 2 and 3 below.

3 Orders 2 and 3 required the carrying out of certain works to secure the premises (identified in the order) and to control sediment and run-off from the premises. It is common ground that the 23 February 2006 orders were made on an ex parte basis.

4 Subsequently, the Court made further orders on 3 March 2006 requiring that, by 6 March 2006, the respondent obtain a report from a suitably qualified engineer addressing an investigation of the stability of the remaining portion of the existing dwelling on the premises, and making recommendations as to measures required to support the remainder of the existing dwelling house, the western boundary of the subject property, the adjoining property at the point of excavation, the southern boundary, and the exposed stormwater infrastructure.

5 The interlocutory orders summarised above were made in the context of class 4 proceedings commenced by the Council seeking (in substance) declarations that development had been carried out on the premises without prior development consent having been obtained and in breach of the Environmental Planning and Assessment Act 1979 (the “EPA Act”), and consequential orders retraining the respondent, her servants, and agents, from continuing to carry out any such development absent development consent having been obtained.

6 The Council has since amended the class 4 application by including an order that the respondent carry out remediation and rectification work, so that the areas of the subject premises that have been excavated be returned to natural or pre-existing ground level.

7 The respondent seeks to vary the interlocutory orders to permit more extensive works to be carried out in the interim (as discussed below, the respondent has now lodged a development application and also seeks to stay the class 4 proceedings to enable that application to be determined).

The position of the parties

8 The works that the applicant seeks leave to carry out involve: - (i) installation of the roof, (ii) installation of a safety fence around the upper perimeter of the basement void, and (iii) construction of concrete walls along the excavation at the western boundary. Otherwise the respondent (the applicant on the notice of motion) seeks that the class 4 proceedings be adjourned to enable determination of the development application lodged under Pt 4 of the EPA Act on 11 March 2006.

9 It is common ground that a development application was lodged with the Council on 11 March 2006. The plans in support of the development application have been tendered in evidence before me and appear to cover the entirety of the works the subject of the class 4 application, and other proposed works to the existing dwelling on the premises (or what remains of that dwelling following the works the subject of the class 4 application).

10 The Council, for its part, agrees that the class 4 proceedings should be adjourned until final determination of the development application. The Council agrees that a safety fence around the perimeter of the basement void should be installed. The Council agrees that certain other works should be done in order to safeguard or protect the existing dwelling, while the development application is assessed and determined.

11 The disagreement between the applicant and the Council is limited to the extent of the works that ought to be done in the interim period (that is, before any development application is finally determined).

12 In essence, the Council says that it is neither necessary nor appropriate that: - (i) the actual roof proposed in the development application be installed onto the building, or (ii) there be constructed concrete walls along the excavation of the western boundary. Instead, the Council submits that the safety and security of the existing building could be ensured for the interim period by: - (i) installing temporary raking props to the masonry walls on the west and east side of the building, (ii) back filling the excavated area on the western boundary to protect the exposed rock faces, (iii) installing tarpaulins, and (iv) erecting temporary waterproof sheeting across the western opening of the basement, and water pumps in the excavated area of the proposed pool.

The evidence

13 Dr Liu on behalf of the applicant, and Mr Dunstan on behalf of the Council, gave evidence on the hearing of the motion. Both Dr Liu and Mr Dunstan hold relevant civil engineering qualifications.

14 At my suggestion and with the agreement of the parties, Dr Liu and Mr Dunstan conferred and provided a joint statement that was tendered in evidence. That joint statement sets out a series of agreements between the engineering experts with respect to the minimum works required to ensure the safety and interior protection of the building (as compared to other, more extensive, works which would equally ensure the safety and protect the interior of the building). The experts were asked to assume that these works would be required to be effective for a period of time, possibly in the order of 6 to 9 months.

15 Relevantly, the experts agree that the minimum works to retain the masonry walls are the raking props as proposed by the Council. They agree that the exposed rock is currently stable, but temporary weathering protection by back fill is the minimum required to ensure its stability. They agree that the concrete floor slabs were designed for an interior environment and if exposed to weathering for a long period would deteriorate. They say that either membranes or tarpaulins can protect the floor slabs. They agree that the minimum protection required for the basement and lap pool opening is the erection of temporary waterproof sheeting and the installation of water pumps.

16 They otherwise agree that more than the minimum could be done to achieve the same results, namely that one could erect the roof, which would provide weather protection, but that this is more than the minimum required. They agree that one could construct the concrete wall against the rock face and that would provide weather protection but, again, it would be more than the minimum required. They agree that construction of a concrete wall at the lap pool opening to the basement would itself provide protection to the basement structure but again, as I understand it, that would be more than the minimum required.

17 Dr Liu said that the interim period was important in some respects – impacts of water infiltration on the remaining structure could be anticipated after about 6 months, if not protected.

18 Mr Roser, the builder, also gave evidence with respect to costs associated with installation of the works as proposed by the respondent and the Council.

The submissions

19 Mr McKenzie, on behalf of the respondent (the applicant on the motion), submits that both experts accept the works set out in the applicant’s notice of motion will achieve the required stability and security of the building pending the final determination of the development application, and that the differences between them relate only to the efficacy of the minimum work (the work sought to be done by the respondents being more efficacious).

20 Mr McKenzie submits that there can be no damage to the public interest by permitting the works set out in the notice of motion to proceed provided that the respondent accepts, as in this case the respondent does, that any such works are entirely at the risk of the respondent (that is, the risk that ultimately the whole of those works might be required to be demolished). Further, that the respondent offers performance bonds if necessary to secure its future performance of any such obligation of removal, and that the respondent also accepts that it would not be able to rely upon either the cost of carrying out those works, or the fact of the presence of those works, as discretionary factors in its favour in either a final hearing of the class 4 proceedings should that be necessary, or in any class 1 appeal relating to any deemed or actual refusal of the development application.

21 Mr McKenzie says that if the works set out in the notice of motion are not carried out then the situation is less than perfect for the interim period because it may be more than six months before final resolution of the development application with the consequence that, as Dr Liu has said, a more permanent solution might also be required to be implemented.

22 In terms of costing, Mr McKenzie submits that there is at least some additional cost, something in the order of $8,500 on his calculations, for the carrying out of the Council’s minimum works, compared to the costs of the works proposed by the respondent in its notice of motion (albeit wholly excluding the cost of materials of the roof, which is something in the order of about $68,000).

23 Mr McKenzie says with respect to the roof, which is the major item of the works proposed in the notice of motion, that it will have more or less the same profile as the previous roof, and therefore the reasonable course of action is the one suggested by the respondent.

24 In response to a submission made by Mr Pickles (who appeared for the Council), that the undertaking as to damages should also be released on and from today’s date, Mr McKenzie submitted that the question of the undertaking is a very significant factor in the balance of convenience for the continuation of the interlocutory orders against the respondent, and that fact would be given weight.

25 Mr Pickles, on behalf of the Council, submits that the appropriate standard that I should impose is that the respondent should be permitted to do only the minimum work required to protect the building and no more. Otherwise, Mr Pickles says, the underlying considerations affecting the balance of convenience are offended in that (absent development consent) the applicant should be permitted to do no more than is strictly necessary to maintain the status quo, so as to safeguard the building and the environment (including safety of people) pending notification and final determination of the 11 March 2006 development application.

26 Mr Pickles submits that any hardship that the applicant might suffer by reason of adopting such a course is a circumstance that the respondent has brought upon herself, and that it is fundamental that any work over and above the minimum required to protect the building and the environment should await the determination of the development application. Mr Pickles says that this is necessary because the most significant factor should be the public interest, and that it cannot be in the public interest for people to carry out development absent required consent given the scheme of the EPA Act. The concession to the respondent thus ought to be limited to the minimum necessary to meet safety requirements.

27 With respect to the roof profile, Mr Pickles says it is different from the previous roof (and the plans show it is more extensive at least in some areas). Further, and in any event, Mr Pickles submits that I cannot know the position of any potentially interested or affected person as to the new roof. For example, it is possible that one of the neighbours may object to the roof as proposed even on a temporary basis.

28 As to the costs, Mr Pickles’ calculations are different from those of Mr McKenzie. They show that the difference between the two sets of work (disregarding the cost of the roof materials) is insubstantial and certainly not greater than about $3,000 or $4,000.

Conclusions

29 The respondent has made an open offer to remove the works if they are not ultimately approved, and has fully accepted that she bears the risk of carrying out the works proposed in the notice of motion. However, I consider that there are other factors of far greater significance in this matter than the concessions the respondent is prepared to place on the record.

30 First, I do not consider it to be an environmentally sustainable course of action to install a roof at a cost of some $90,000 (including the cost of works) when, ultimately, that very same roof may have to be removed.

31 Secondly, the issue of the potential public perception of the orderly enforcement of planning law is a significant factor in this matter.

32 Thirdly, there is the issue of ensuring that there is an incentive to both parties to ensure that this dispute is resolved one way or another as soon as reasonably practicable.

33 In this case, I consider that the discretionary factors overwhelmingly favour permitting a solution to the safety issues which is temporary, and is able to be seen as temporary, and comprises the minimum works reasonably required to ensure the stability and safety of the building and land in their current condition.

34 In other words, if the temporary minimum solution is feasible and not cost prohibitive, then I consider that is the solution that ought to be permitted to be carried out, and no more.

35 I do not consider that it is appropriate in the particular circumstances of this matter to permit the respondent to carry out what I consider to be substantial works, being works which are currently the subject of a pending development application, in circumstances where, at least for the purposes of these interlocutory proceedings, there is a serious question to be tried that consent was required for the works carried out to date, and is required for the proposed works, and that such consent has not been obtained.

36 On the evidence before me in this matter, I am satisfied that it is feasible for the minimum works agreed between Dr Liu and Mr Dunstan to be carried out, and that those works will achieve the safety and environmental protection requirements which the Council (appropriately) accepts ought to be achieved for the interim period. Moreover, I am satisfied that the costs of those works, even if some of those costs are ultimately thrown away, are not prohibitive or unreasonable.

37 Having regard to the nature of the property as shown in certain photographs tendered before me, the nature of the building thereupon, and the extent of the development shown in the development application plans, I consider that the evidence overwhelmingly leads to a conclusion that the applicant ought to be permitted, indeed required, to carry out the minimum works agreed between Dr Liu and Mr Dunstan, and no more. The balance of the works, in my view, should be left for consideration by the Council pursuant to the development application, and in the event of any deemed or actual refusal of that application, by the Court in class 1 of its jurisdiction.

38 It is necessary that I also consider the question of the undertaking as to damages. In order to obtain the ex parte relief, the Council offered, and the Court accepted, the usual undertaking as to damages.

39 I consider that circumstances have radically altered from the circumstances at the time the ex parte injunction issued. In particular the applicant has now lodged a development application that, at least as I understand it, covers the entirety of the works the subject of the class 4 application of the Council. Moreover, the applicant seeks an exercise of discretion in its favour (which the Council quite properly does not oppose) pursuant to s 124(3) of the EPA Act - that is, that the class 4 proceedings be adjourned to enable the development application to be determined.

40 I consider that, in these circumstances, the Council should be released from its undertaking as to damages, on and from today’s date, until there is some other change in circumstances which leads the Council, or the respondent, to re-enliven the class 4 proceedings after the development application has been finally determined. The Council’s undertaking ought not to continue throughout the period of the adjournment of the class 4 proceedings, being an adjournment sought by the respondent to enable its development application for the works to be determined.

41 As such I propose that orders to the following effect should be made:

(1) The respondent forthwith carry out or cause to be carried out the following:

(a) Install temporary raking props to the masonry walls on the west and east side of the building at 10A Point Street, Woolwich (lot 1 DP 533230 and lot 1, DP 572956) (“the premises”) so as to ensure the structural stability of the walls pending the final determination of the development application lodged by the respondent with the applicant on 13 March 2006.

(b) Backfill and batter that part of the excavation for the lap pool on the premises so as to provide temporary weather protection for the exposed rock faces on the western wall of the building pending the final determination of the development application lodged by the respondent with the applicant on 13 March 2006.

(c) Erect sheeting and install water pumps so as to provide temporary protection to the basement on the premises from water incursion pending the final determination of the development application lodged by the respondent with the applicant on 13 March 2006.

(d) Install tarpaulins or a membrane so as to provide temporary weather protection for the interior of the building on the premises pending the final determination of the development application lodged by the respondent with the applicant on 13 March 2006.

(e) Install a safety fence around the perimeter of the basement void on the premises.

(2) The respondent shall ensure that all works carried out pursuant to order 1 above are carried out under the supervision of a suitably qualified civil engineer.

(3) On and from 3 April 2006, and pending further or other order, release the applicant from its undertaking as to damages given to the Court on 23 February 2006.

(4) Otherwise orders 1, 2 and 3 or the Orders made by this Court on 23 February 2006 are continued.

(5) Adjourn the proceedings for mention on 8 June 2006 to enable the final determination of the development application lodged by the respondent with the applicant on 13 March 2006.

(6) Grant liberty to each party to restore the proceedings on 24 hours’ notice.

(7) Costs of the applicant’s notice of motion filed 14 March 2006 are reserved.

(8) All exhibits on the notice of motion are returned .

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