Karmel & Co Pty Ltd v Leichhardt Municipal Council (No 2)

[2015] NSWLEC 11

Land and Environment Court

New South Wales

Medium Neutral Citation:

Karmel & Co Pty Ltd v Leichhardt Municipal Council (No 2) [2015] NSWLEC 11

Hearing dates:

6 February 2015

Date of orders:

06 February 2015

Decision date:

06 February 2015

Jurisdiction:

Class 1

Before:

Biscoe J

Decision:

(1) The orders made on 30 December 2014 are vacated.

(2) Pending the carrying out of the remainder of the works required by the consent orders of 16 December 2014, the ground floor and the rear of the first floor of the premises may continue to be occupied until and including 22 February 2015 and thereafter only with the prior written consent of the Council or order of the Court.

(3) The barber shop on the ground floor of the premises may continue to be occupied after 22 February 2015 provided that the rest of the premises are vacated or with the prior written consent of the Council or order of the Court.

(4) The applicant will vacate the first floor of the premises on or before 7 February 2015.

(5) Liberty to apply.

Catchwords:

JUDGMENT AND ORDERS – extension of time for compliance with consent orders

Cases Cited:

Karmel & Co Pty Ltd v Leichhardt Municipal Council [2014] NSWLEC 199

Category:

Consequential orders (other than Costs)

Parties:

Karmel & Co Pty Ltd (Applicant)
Leichhardt Municipal Council (Respondent)

Representation:

COUNSEL:
A Drayton, solicitor (Applicant)
A Thompson, solicitor (Respondent)

SOLICITORS:
Drayton Sher (Applicant)
Ritchie & Castellan (Respondent)

File Number(s):

10834/14

EX tempore Judgment

1. This is a contested urgent motion by the applicant seeking an extension of time for compliance with consent orders made on 16 December 2014 in lieu of the extension granted on 30 December 2014.

2. The proceedings, which were commenced in October 2014, are an appeal against an emergency order made by the respondent Council requiring the applicant to cease using the attic area located below the roof of premises at 673-677 Darling Street, Rozelle for backpackers’ accommodation or for storage of goods or for any other purpose.

3. The proceedings were resolved on 16 December 2014 by consent orders which went beyond the attic the subject matter of the proceedings and resolved other issues between the parties by requiring fire safety upgrade work for the premises generally.

4. The premises comprise an old building containing a ground floor, first floor and attic and a new building at the rear over a car park. The applicant has complied with the emergency order, which is limited to the attic in the old building. The rest of the premises are occupied by a substantial number of backpackers except the part of the ground floor of the old building that is occupied by a barber shop.

5. The consent orders required the applicant to carry out various fire safety upgrade works within 30 days or within seven days. There is a requirement that details of all new fire rated systems to be installed should be provided to the respondent Council for approval prior to installation. That approval has not yet been granted and not all of the work required by the consent orders has been carried out.

6. On 30 December 2014 I granted an extension of time for compliance with the consent orders: Karmel & Co Pty Ltd v Leichhardt Municipal Council [2014] NSWLEC 199 (as amended by consent under the slip rule today):

(1)   Extend the time for compliance with the consent orders of 16 December 2014 to 7 February 2015.

(2)   Provided that the subject premises are vacated, further extend the time for compliance with the consent orders of 16 December 2014 to 31 March 2015.

7. It appears that the time frame in the consent orders was unrealistic. The problems that arose in complying with that time frame are set out in my earlier judgment. When the consent orders were made the applicant company was represented by a director but was not legally represented.

8. There has been non-compliance with the extended time for compliance in the 30 December 2014 orders; that is, by tomorrow 7 February 2015. There is some complaint by the applicant that non-compliance with the extended time is due to Council not responding sufficiently quickly to the applicant’s attempts to have a specification approved by Council for the works. That complaint may not be justified. Be that as it may, during January the applicant submitted a specification to Council for its approval and refined it by amendments. However, Council rejected the specification as unsatisfactory.

9. The orders now sought by the applicant would permit it to continue occupying, or not required it to vacate, the barber shop on the ground floor, the rear of the premises above the carpark, and the ground floor while works the subject of the consent orders are being completed, but that it vacate the first floor tomorrow. As I understand it, the obstacle to Council’s agreeing to this proposal is its perception (contrary to that of the applicant) that on the information currently available, there would be a continuing fire risk for those parts of the premises the subject of continuing occupation while the works are being completed.

10. At my request, the experts for the parties conferred today with a view to seeing whether a consensus between them might emerge. It appears from the concurrent evidence they then gave that there is some real measure of agreement between them as to what is required but the details still remain to be resolved. The applicant’s expert proposed that he present a strategy to Council for its approval involving continued occupation of the ground floor and the rear of the premises to allow those parts to continue to be occupied pending the carrying out of the remainder of the work required by the consent orders. He considered that he could present the strategy to Council and obtain its approval within a week and that the work required to implement the strategy could be performed within a further week. The Council’s expert did not think it could be done within that time frame.

11. If any further extension of time is to be granted, it has to be balanced against the fire risk to the occupants of the building. The consent orders accepted that risk for a period, a risk that on the Council’s case was present well before the consent orders. The question now is whether the risk should continue to be incurred and, if so, for how long. Council opposes any further extension of time, except that it consents to continuing occupation of the barber shop provided that the rest of the premises are not occupied.

12. Doing the best I can given the constraints that accompany an interlocutory application of this nature, and giving weight to the 14 day strategy proposed by the applicant’s expert, I conclude that there should be some carefully moulded relief permitting further occupation for another 14 days of the ground floor and the rear of the building. In addition, there should be an order, as proposed by the applicant, that the applicant vacate the first floor of the premises on or before tomorrow 7 February 2015.

13. The orders that I make are as follows:

1. The orders made on 30 December 2014 are vacated.

2. Pending the carrying out of the remainder of the works required by the consent orders of 16 December 2014, the ground floor and the rear of the first floor of the premises may continue to be occupied until and including 22 February 2015 and thereafter only with the prior written consent of the Council or order of the Court.

3. The barber shop on the ground floor of the premises may continue to be occupied after 22 February 2015 provided that the rest of the premises are vacated or with the prior written consent of the Council or order of the Court.

4. The applicant will vacate the first floor of the premises on or before 7 February 2015.

5. Liberty to apply.

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Decision last updated: 09 February 2015