Jacobs v Hurstville City Council

[2010] NSWLEC 216

Land and Environment Court

of New South Wales

CITATION:	Jacobs v Hurstville City Council [2010] NSWLEC 216
PARTIES:	APPLICANT Kevin Roy Jacobs RESPONDENT Hurstville City Council
FILE NUMBER(S):	40601 of 2010
CORAM:	Pain J
KEY ISSUES:	INJUNCTIONS AND DECLARATIONS :- urgent interlocutory injunction - no serious question to be tried - injunction refused
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 1994 cl 28(1) Local Government Act 1993
CASES CITED:	Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148
DATES OF HEARING:	6 August 2010
EX TEMPORE JUDGMENT DATE:	6 August 2010
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr J Maston SOLICITOR Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

6 August 2010

40601 of 2010 Jacobs v Hurstville City Council

EX TEMPORE JUDGMENT

1 Her Honour: This is an urgent interlocutory application coming before me as duty judge. I have before me a summons filed by Mr Jacobs who is representing himself. The Respondent is named as Hurstville City Council (the Council). In terms of the relief claimed the summons seeks an injunction against the Council's decision to demolish Mortdale Masonic Temple Woronora Lodge (the building), located at Cook Street, Mortdale. It seeks other orders including that the injunction is to stand pending the seeking of a ministerial order and/or an appeal is filed in the appropriate court. Today the Court is asked to consider whether it should, on Mr Jacobs' application, issue an urgent interlocutory injunction which would prevent the Council from demolishing the building.

2 I am informed by Mr Maston, who appears today for the Council, that development consent was granted by the Council to itself as the owner of the building on 7 July this year, in relation to DA 10/3160 to enable demolition of the building currently on the property and its replacement by a carpark.

3 Mr Jacobs has filed in support of his application for an interlocutory injunction an affidavit sworn by him on 29 July 2010 to which is attached a number of documents relating to correspondence with the Department of Local Government amongst others. A letter to the Deputy Director General Department of the Valuer General dated 17 June 2010 refers to use of infrastructure costs and use of levy money raised inappropriately and argues that the Council claimed it would use funds for the upgrading and renovation of facilities for community use. He also attaches a petition containing a large number of signatures (455 in one and 170 in the other) that have been collected in the Hurstville area opposing demolition of the building.

4 The affidavit refers to the development application filed with the Council, the process of collection of signatures on the petition and suggests what community uses the building could be usefully put to, such as use by a local sporting club.

5 Mr Jacobs also submits by reference to an infrastructure information pamphlet issued by the Council that there are going to be extra rates levied by the Council which he believes could be used for the upgrade of the existing building. This, he submits, suggests that there is no need to demolish the building. A breach of the Local Government Act 1993 (the LG Act) can be restrained by the Court under s 676.

6 He has also received correspondence, he informs me from the bar table, from the mayor of the Council acknowledging receipt of the petition attached to his affidavit. The petition was received after development consent was granted. I understand that Mr Jacobs comes along on behalf of potentially a large number of people who are very concerned about the Council's decision to demolish the building.

7 I note that this interlocutory injunction application is opposed by the Council. Under the Hurstville Local Environmental Plan 1994, cl 28(1) provides that consent for demolition of a heritage item can be given by the Council. According to Mr Maston two independent consultants were engaged who accepted that subject to certain conditions, demolition could take place. That is the course the Council has pursued in this matter. No serious question to be tried arises.

Finding

8 In order for Mr Jacobs to succeed in his application today, he has to demonstrate to the Court that there is a serious question to be tried and that the balance of convenience favours the grant of an interlocutory injunction. Whether an undertaking as to damages is offered in the event the Court was to consider granting an interlocutory injunction is also relevant. These are the matters identified in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 at 153-4 as necessary to be considered when assessing whether an interlocutory injunction ought be granted.

9 It seems to me that on the submissions made by Mr Jacobs including in relation to possible breaches of the LG Act, that there is no serious question to be tried. The relevant breach that would have to be identified by him is in relation to the Environmental Planning and Assessment Act 1979 (the EP&A Act) as that is the Act under which the development consent granted by the Council to itself in relation to the demolition of the building is regulated. No issue has been raised by Mr Jacobs concerning any possible breach of the EP&A Act. The matters he raises as potential breaches of the LG Act appear to deal with policy issues concerning the use of infrastructure funds levied by the Council which are matters for the Council and not reviewable by this Court. The Court cannot consider matters of merit in relation to judicial review challenges of Council decisions in any event.

10 Therefore I do not consider there is serious question to be tried. I am not going to grant the interlocutory injunction Mr Jacob seeks. The application is refused.

Order

11 The Court makes the following order:

The Applicant’s application for interlocutory relief by summons filed 30 July 2010 is refused.