Lane Cove Council v Ross (No 2)

[2012] NSWLEC 160

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Ross (No 2) [2012] NSWLEC 160
Hearing dates:	12 July 2012
Decision date:	12 July 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [29].
Catchwords:	INTERLOCUTORY ORDERS - building works in breach of development consent - temporary injunction previously granted "until further order" - respondent admits breach of terms of consent - application to dissolve injunction - evidence of commercial prejudice to respondent - application refused but injunction limited in duration - consequential orders made.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 76A, 96
Cases Cited:	Lane Cove Council v Ross [2012] NSWLEC 153
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Raymond Ross (Respondent)
Representation:	Mr S Griffiths (Solicitor) (Applicant) Mr R Ross (in person) (Respondent) Pikes & Verekers Lawyers (Applicant) N/A (Respondent)
File Number(s):	40628 of 2012

ex tempore Judgment

The Council Obtains an Earlier Ex Parte Injunction

1. On 6 July 2012, in an ex parte hearing, Craig J, upon Lane Cove Council ("the council") giving the usual undertaking as to damages, restrained the respondent, Mr Raymond Ross, from laying any bricks or otherwise carrying out any building work on the second floor level of premises located at and known as 8 Bayview Street, Northwood ("the premises") "until further order" (Lane Cove Council v Ross [2012] NSWLEC 153).

1. His Honour was satisfied on the evidence before him that a prima facie case of breach of the law, namely, s 76A of the Environmental Planning and Assessment Act 1979 had been established (Lane Cove Council v Ross at [12]).

1. The background to the council's application for an injunction is set out in the decision of Craig J (at [3]-[8]).

1. Although his Honour was concerned initially that the respondent, Mr Raymond Ross, had not been personally served with the council's summons and supporting affidavit in accordance with the rules, the evidence demonstrated that there had been previous communication between the council and Mr Ross and that Mr Ross had been receiving documents sent to him from the council at both his post office box address and his email address. In addition, a conversation between an individual at H & D Studio Design, that had been engaged by Mr Ross to prepare documentation in relation to development at the premises and an individual employed by the council, indicated that Mr Ross had received the initiating summons and was in the process of making a s 96 modification application in order to regularise the unlawful works (Lane Cove Council v Ross at [7]).

1. On the basis of this evidence, Craig J was satisfied that Mr Ross had received sufficient notice of the proceedings and that the temporary injunction sought by the council could be granted.

1. Craig J made further orders with respect to the additional service of the summons, the supporting affidavit and the orders granting injunctive relief and stood the proceedings over to the duty judge today.

Mr Ross Initially Fails to Appear

1. Mr Ross did not initially appear before the Court when the matter was called for hearing at 10:00am today.

1. The council relied on an affidavit of Mr Adrian Moore sworn 12 July 2012 and an affidavit of Ms Julie Sheen sworn 11 July 2012, to demonstrate that the summons, supporting affidavit and the orders made by Craig J on the last occasion had been served on Mr Ross in accordance with the methods set out in the orders made by his Honour on 6 July 2012.

1. In these circumstances the Court was content to proceed on an ex parte basis and did so.

1. The affidavit of Mr Moore also deposed to the fact that a s 96 modification application had been lodged with the council by H & D Studio Design on behalf of Mr Ross on 11 July 2012.

1. Mr Moore went on to state, however, that the drawings accompanying the modification application did not accurately reflect what had been constructed and that they showed some walls on the second level positioned other than in accordance with the development consent.

1. In light of the evidence from Mr Moore, the injunctive relief granted by Craig J was ordered to continue "until further order" and the matter was set down for further directions before the list judge on 27 July 2012. In addition, the Court proposed that if Mr Ross failed to appear on that date, a timetable would be set for the preparation of the matter for final hearing and a hearing date would be allocated.

1. The Court then adjourned the proceedings until 27 July 2012.

Mr Ross Makes a Late Appearance

1. Approximately 15 minutes after the Court adjourned the proceedings, I received a telephone call in chambers from the Registry indicating that Mr Ross was now in the Court precinct and wanted to bring the matter before the Court. Fortunately, Mr Griffiths, the solicitor representing the council, was in the Registry at the time and did not oppose the matter being relisted before me. The Court therefore agreed to have the matter relisted immediately.

1. Mr Ross sought a vacation of the orders that had been made by me earlier that morning in his absence and applied for the dissolution of the injunction granted by Craig J and continued by myself.

1. In support of his application he relied on an unfiled affidavit affirmed by him on 12 July 2012. At the same time Mr Ross handed the original of his affidavit to the Court, he served a copy of it on the council.

1. The text of the affidavit comprised nine pages and annexed to the affidavit was a copy of the s 96 application, several photographs of the works undertaken at the premises and correspondence passing between himself and the council.

1. Significantly, the affidavit contained an admission that he had carried out construction work at the premises other than in conformity with the original development application and the consent granted pursuant to that development application.

1. Mr Ross justified these variations on the basis that:

All changes are contained within the approved building footprint and height envelope and would ordinarily be approved by council under existing guidelines.

1. The reference to "existing guidelines" was a reference to the "Councils [sic] DCP and Building Guidelines". No further details were given by Mr Ross in this regard.

1. The affidavit went on to state that the s 96 modification application would effectively remedy the "technical" breaches of the consent.

1. Pursuant to questioning by the Court, Mr Ross orally admitted, on at least two occasions, that some of the work undertaken by him was in fact contrary to the development consent.

1. Mr Ross further deposed in his affidavit that the cost of any delay in the construction of the dwelling would include "$200/week for scaffold hire alone", penalties for contractual delays and "formwork on site" and loss of rental income of "at least $1500/week". No information was provided by Mr Ross to verify these estimates.

1. The council opposed the vacation of the earlier orders and the application to dissolve the injunction primarily on the basis that Mr Ross had admitted to having breached the consent and because, in its opinion, in its current form the s 96 modification application would not, even if approved by the council, rectify the breaches of the consent detailed in the affidavit of Mr Moore sworn 28 June 2012, which was read before Craig J on 6 July 2012.

1. More generally, the council objected to the application on the basis that it had only just been served with the affidavit of Mr Ross and it required time to seek instructions as to its content and to respond to it by filing evidence in reply.

The Injunction is Continued

1. I accept the council's submissions. Having said this, however, I note the potential commercial prejudice that the injunction is causing Mr Ross, as outlined by him in his affidavit.

1. Given Mr Ross' admitted breach of s 76A of the EPAA and given the prejudice that will flow to the council if Mr Ross' application is argued in full today, but nevertheless having regard to the prejudice to Mr Ross if his application is subject to a lengthy delay, the balance of convenience favours the continuation of the injunction, but only for a limited period of time.

1. I therefore propose to continue the injunction in identical terms to those ordered by Craig J on 6 July 2012, save as to duration. Accordingly, the injunction shall remain in place for a further week and a half in order to prevent any further breaches of the EPAA and to permit the council to prepare for any further continuation of the injunctive relief.

Orders

1. In conformity with the reasons above, the Court makes the following orders:

(1)   The Court notes that the applicant has complied with orders 2, 3 and 4 of the orders of this Court made on 6 July 2012 by Craig J;

(2)   the orders made earlier today at 10:15am are vacated;

(3)   upon continuation of the applicant's undertaking, order number 1 of the orders made on 6 July 2012 by Craig J is continued in the following terms:

"The Respondent by himself, his servants and agents is ordered to refrain from laying any bricks or otherwise carrying out any building work at the second floor level of the premises located at and known as 8 Bayview Street, Northwood until 4:00pm 24 July 2012";

(4)   any application for extension of the injunction is set down before the Duty Judge at 10:00am on 24 July 2012;

(5)   the applicant is to file and serve any evidence upon which it seeks to rely in support of the application referred to above by 17 July 2012;

(6)   from hereon in service on the respondent in the proceedings is to be effected by:

(a)   post at the address given by the respondent in his affidavit affirmed 12 July 2012, namely:

"PO Box 944, Lane Cove NSW 2066"; AND

(b)   email at the following address:

[email protected];

(7)   the respondent is to file and serve any evidence in response by 20 July 2012;

(8)   costs of today are reserved; and

(9)   liberty to apply on two (2) business days' notice.

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Decision last updated: 08 August 2012