Lane Cove Council v Ross (No 3)

[2012] NSWLEC 171

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Ross (No 3) [2012] NSWLEC 171
Hearing dates:	24 July 2012
Decision date:	24 July 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See [17].
Catchwords:	INTERLOCUTORY ORDERS - building works in breach of development consent - interim injunction previously granted - no appearance by respondent - application to extend injunction heard on ex parte basis -application granted and consequential orders made.
Cases Cited:	Lane Cove Council v Ross [2012] NSWLEC 153 Lane Cove Council v Ross (No 2) [2012] NSWLEC 160
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Mr Raymond Ross (Respondent)
Representation:	Mr S N Griffiths (Solicitor) (Applicant) No Appearance (Respondent) Pikes Verekers Lawyers (Applicant) No Appearance (Respondent)
File Number(s):	40628 of 2012

Ex tempore Judgment

Mr Ross Engages in Unlawful Building Works

1. The background to these proceedings is set out both in Lane Cove Councilv Ross (No 2) [2012] NSWLEC 160 and Lane Cove Council v Ross [2012] NSWLEC 153. It is relied upon for the purpose of this judgment.

1. On 12 July 2011, in Lane Cove Council (No 2), the Court, upon the continuation of the applicant's undertaking, made an order restraining the respondent from carrying out any building work on the second floor level of the premises located at and know as 8 Bayview Street, Northwood, New South Wales, until 4.00 pm 24 July 2012.

1. An additional order was made by the Court that any application for an extension of the injunction was to be heard at 10.00 am on 24 July 2012.

Ex Parte Proceedings

1. When the matter was before the Court on 12 July 2012, Mr Ross was present. However, when the matter came before the Court today, Mr Ross failed to appear. Mr Griffiths, who appeared for the council, indicated to the Court that council officers had, as recently as yesterday, been in contact with Mr Ross and had reminded Mr Ross of today's Court appearance. Notwithstanding Mr Ross' knowledge of today's hearing, he did not appear and the matter proceeded without him on an ex parte basis.

1. The Court had initially understood that today's hearing would be the final hearing of the summons. Instead, the council sought a further extension of the temporary injunction. It was not ready to have the matter finally determined today. The council also sought a date for the final hearing of the summons.

1. On the basis that Mr Ross was not present, and in light of the misunderstanding as to the purpose of today's hearing, the Court was willing to accede to the council's request. This was the most prudent course in all the circumstances.

The Injunction is Extended

1. The council relied on the affidavit material it read on the last occasion (on 12 July 2012, before me) and on the affidavit material it read when the matter was before Craig J on 6 July 2012, to provide the evidentiary basis for contending that the injunction should be extended until the final hearing of the summons.

1. As a matter of fairness to Mr Ross, the Court had regard to his affidavit sworn 12 July 2012 in determining whether it was appropriate to extend the interim injunction.

1. In response to Mr Ross' affidavit, the council had prepared and relied upon an affidavit of Mr Adrian Moore sworn 16 July 2012.

1. Mr Moore's latest affidavit states that, first, there is no record of any application to the council by Mr Ross notifying the council of the building changes or seeking approval for those changes, contrary to the claim made by Mr Ross in his affidavit, other than that notified by H & D Studio Design after the proceedings had been commenced.

1. Second, Mr Moore states that he has inspected the council files for any record of attempts made by Mr Ross to set up meetings with council officers to discuss the building works, and can locate none.

1. Third, Mr Moore addresses and refutes some of the technical arguments made by Mr Ross in his affidavit concerning the rear awning and the lightweight continuous awnings.

1. Fourth, Mr Moore provides information concerning the unapproved concrete slab constructed on the second floor. In particular, Mr Moore gives evidence of the consequences of the construction of the slab in terms of the impact on the amenity of the neighbours and the streetscape.

1. Fifth, Mr Moore notes that it appears from the second floor plan annexed to Mr Ross' affidavit that the second floor balcony is to be smaller than that which was approved by the council and will generally permit closer access to, and surveillance of, the neighbour's property to the south.

1. Finally, Mr Moore notes that the existing partly completed brickwork suggests that the six metre open balcony design along the southern boundary is to be replaced by a brick wall to the full height of the second storey wall. Again, this is not what was approved by the council.

1. On the basis of all of the evidence before the Court to date, and notwithstanding the contents of Mr Ross' affidavit sworn 12 July 2012, I am satisfied that it is appropriate that the Court extend the injunction granted on the last occasion.

Orders

1. The formal orders of the Court are:

(1) the summons is set down for final hearing before Pepper J at 10.00 am on 1 August 2012;

(2) the respondent is to file and serve any evidence upon which he seeks to rely at the final hearing of the summons by no later than 10.00 am 27 July 2012.

(3) the applicant is to file and serve any evidence in response by no later than 4.00 pm 30 July 2012;

(4) upon continuation of the applicant's undertaking, order 3 of the orders made on 12 July 2012 by Pepper 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 4.00 pm 1 August 2012."

(5) the costs of today are reserved;

(6) the applicant is to notify the respondent of today's orders; and

1. (7)   liberty to restore on two business days' notice.

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