Marrickville Council v Cleary

[2014] NSWLEC 203

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marrickville Council v Cleary [2014] NSWLEC 203
Hearing dates:	29 July 2014
Decision date:	29 July 2014
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See paragraph 11
Catchwords:	Interlocutory relief – balance of convenience favours restraining use of premises as residential accommodation – order made
Category:	Procedural and other rulings
Parties:	Marrickville Council (Applicant) Cleary, Mark Stephen (First Respondent) Mark Cleary and Associates Pty Ltd (Second Respondent) Zhang, Shu Min (Third Respondent) Gee, Edward (Fourth Respondent)
Representation:	Counsel: Ms J Hewitt (solicitor) (Applicant) Mr M Cleary (in person) (First and Second Respondents) No appearance (Third and Fourth Respondents) Solicitors: HWL Ebsworth Lawyers (Applicant)
File Number(s):	40541 of 2014

EX TEMPORE Judgment

1. I have before me an interlocutory application by Marrickville Council (the Council) in a notice of motion filed in court on 25 July 2014. Various orders are sought in relation to premises at 31 Princes Highway, St Peters (the premises). Essentially what is sought now is the immediate restraint of the use of the premises for the purpose of residential accommodation by the First Respondent, Mr Cleary. I made orders last Friday giving leave to file a summons in court and in relation to the notice of motion that was being pressed immediately by the Council and also further orders in relation to the service of documents. I stood over until today the application by the Council for interlocutory relief.

2. Last Friday Mr Cleary attended and was represented on very short notice by a barrister. At that stage he had only been notified of the proceedings by email at about 6 o'clock the night before. That was one of the reasons I stood the matter over until today.

3. The Council read two affidavits in support of its application for an interlocutory order. An affidavit of Mr Mark Cottom, Council officer, sworn 25 July 2014 attests to the effect of the Marrickville Local Environmental Plan (LEP). The relevant zoning for 31 Princes Highway St Peters is zone B6, enterprise corridor. It is clear from that affidavit that residential use of the premises is prohibited, as was made clear by a reference to the relevant plan in the LEP and the land use tables for that zone.

4. A further affidavit relied on was sworn by Michael Simmons dated 24 July 2014 who took into account the expert witness code of conduct at the time of swearing the affidavit. He is the Council's fire safety officer, and he sets out his responsibilities in relation to fire safety in the Council’s local government area. His particular history in relation to these premises is set out at par 9 to 16 of that affidavit, including of several inspections undertaken by him of the premises.

5. He expresses concern in that affidavit about the fire hazard arising from the current state of the premises, set out in his affidavit at par 23 to 29. I note further that he has had discussions with the agent of the owner, the Third Respondent Mr Shu Min Zhang, as set out in the affidavit at par 33 to 38.

6. Most importantly for the purposes of this injunction application, he observes at par 38 that he came to the conclusion the ground floor of the premises did not have prudent or adequate fire safety measures in place. He was also concerned about the storage of flammable material on the ground floor. He has also expressed concern about the state of the second floor where Mr Cleary and others reside. That evidence supports the Council's case that there is an imminent fire risk at these premises.

7. I have been provided today with two further affidavits by the Council, which are essentially affidavits of service. One sworn by Mr Cottom dated 28 July 2014 and an affidavit of Ms Lauren Smith dated 29 July 2014 confirm that the First, Second and Third Respondents have been served with the court documents.

8. The matter was stood over from Friday largely to allow Mr Cleary the opportunity to consider his position. Mr Cleary is clearly aware of the proceedings as he was here last Friday, and has appeared today representing himself. The Third Respondent, Mr Xiou Min Zhang, has also been served both directly to his post office box and also to his agent, but has not appeared today.

9. Mr Cleary has provided an affidavit to the Court sworn 29 July 2014 and has told the Court that he has been living at the premises for 11 years. He has also taken steps to obtain alternative residential accommodation which is available from 14 August 2014.

10. Given that this is an interlocutory injunction application, I have to weigh up whether there is a serious question to be tried. There clearly is given the affidavit of Mr Michael Simmons dated 24 July 2014 expressing his concern based on his expertise about the unsatisfactory nature of the fire risk at the premises. The question really is whether on the balance of convenience I should require Mr Cleary to vacate the premises as his residence today as the Council continues to press, or allow him to remain there for a further 16 days until 14 August 2014. I am mindful of the matters referred to by Mr Cleary in his affidavit in relation to fire risk and measures he has taken to mitigate these. In these circumstances, I will allow him to remain at the premises until 14 August 2014.

11. I will make the order as sought by the Council in prayer 1 of the orders handed up today, but will suspend the operation of that order until 14 August 2014.

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Decision last updated: 20 February 2015