McNeill v Avalon Surf Life Saving Club

[2013] NSWLEC 72

Land and Environment Court

New South Wales

Medium Neutral Citation:

McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 72

Hearing dates:

27 May 2013

Decision date:

28 May 2013

Jurisdiction:

Class 4

Before:

Sheahan J

Decision:

(1)This application for interlocutory relief is dismissed.

(2)As the application merely re-agitated the primary arguments disposed of in matter No 40349 on 17 May 2013, Mr McNeill is ordered to pay the defendants' costs of the hearing on 27 May, on a party-party basis, as agreed or assessed.

(3)Exhibit P1 before me is retained.

(4) The substantive proceedings are to be associated with matter No 40349 of 2013, and listed with it before the List Judge for case management on 31 May 2013.

Catchwords:

INJUNCTIONS - second attempt to obtain an interlocutory injunction to prevent ongoing building works - still no serious issue to be tried - undertaking as to damages - balance of convenience does not favour grant of injunction - costs of the second interlocutory hearing

Legislation Cited:

Environmental Planning & Assessment Act 1979
Uniform Civil Procedure Rules 2005

Cases Cited:

Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; 161 CLR 148
Liverpool Plains Shire Council v Vella [2013] NSWLEC 54
McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 69
Silkstone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Category:

Interlocutory applications

Parties:

Mr J McNeill (Applicant)
Avalon Surf Life Saving Club (First Respondent)
Pittwater Council (Second Respondent)

Representation:

Mr J McNeill (in person)
Ms C Hopton (Club President - First Respondent)
Ms D Townsend (Solicitor - Second Respondent)
King & Wood Mallesons (Second Respondent)

File Number(s):

40373 of 2013

Judgment

Introduction

1. These are fresh proceedings (13/40373) brought by Mr McNeill against Avalon Surf Life Saving Club and Pittwater Council, seeking to stop the current reconstruction works on the club house at Avalon Beach.

1. Earlier proceedings (13/40349) to shut down the project were commenced by him on 15 May 2013, and came before Pain J on 16 and 17 May 2013, on the question of interlocutory relief.

1. Her Honour:

(1) declined to grant an interlocutory injunction,

(2) published her reasons on 17 May ([2013] NSWLEC 69),

(3) reserved the question of costs, and

(4) stood the matter over for case management on Friday 31 May 2013.

1. The project received development consent ("DC") from Council on 20 June 2011, for "substantial" alterations and additions (Tite affidavit, par 4, and Exhibits A and 1 before Pain J), and must comply with the construction certificate plans (in Munn's affidavit before Pain J). The consent was publicly notified on 24 June 2011. It envisages a significant change to the existing building, but not its demolition.

1. Mr McNeill's central complaint is that demolition works are involved, rather than alterations to the historic fabric of the building, and those works have occurred to the detriment of an "iconic landmark" in an "unspoilt paradise".

1. He lodged no appeal against Pain J's decision, but these later proceedings were filed on 24 May 2013. Her Honour directed, in Chambers on that day, that they come before me, as Duty Judge, yesterday, on the question of whether to grant an interlocutory injunction.

1. While the relief claimed in the summons filed to commence 40349 on 15 May 2013 sought only one order, viz: "Stop the demolition of the Avalon Beach Surf Life Saving Club - Barrenjoey Road Avalon Beach NSW 2107", the summons before me now in 40373, as amended, by consent, claims the following relief:

1. 'Stop the demolition of the Avalon Surf Club Building'.

2. Reverse the Council decision to change the Avalon Beach Management Plan (Feb 18).

3. Cease works effective immediately and have an inquiry into why a wall shown on the plan as part of the existing building to remain in place as part of the new building was demolished on day one of these current works.

1. Because of the very unsatisfactory way in which Mr McNeill marshalled and prosecuted his claims, I had no alternative but to reserve my decision overnight, as the parties agreed I should have regard to all the evidence placed before Pain J, as well as that placed before me yesterday.

1. Mr McNeill filed in these proceedings an affidavit on 24 May 2013 ("the first affidavit") which repeated much of what he had deposed in his affidavit of 15 May, in the earlier matter.

1. I adjourned the hearing to 11.30am, and then to 2.30pm, yesterday, to enable the plaintiff to file and serve the material upon which he sought to rely to re-litigate his ongoing concerns in these fresh proceedings. He filed and served a further affidavit ("the second affidavit"), which referred to various items as "attached", but there were none, and a further delay resulted. Some of those attachments were not before Pain J, but added little to what was before Her Honour.

1. The new material in both affidavits is not in proper form, but the court has extended much latitude to Mr McNeill in making his submissions.

1. He was not required for cross-examination on his sworn evidence, but with no relevant expertise, Mr McNeill has expressed opinions for which he shows no foundation and produces no corroboration. His factual assertions are largely based on hearsay and conjecture.

1. There is, among his materials, a photograph of the result of an admitted building mistake or mishap, but the Council has demonstrated (Exhibit P1) that neither respondent sought to breach the DC, and that both took speedy action to rectify the problem, and keep the builder to the terms of the DC, including the "propping" of walls to be retained (Munn, Annexure 'E').

Consideration

1. The principles to be applied by the court are found in the classic statements of Mason ACJ in Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; 161 CLR 148, especially at 153-5, and in the NSW Court of Appeal judgments in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, and Silkstone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317, at 320-5. Those principles are universally applied, and in this court see, firstly, Preston J's analysis in Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1, and then their recent application in Liverpool Plains Shire Council v Vella [2013] NSWLEC 54.

1. Put shortly, I need to be satisfied, by new evidence, of a breach which is likely to continue if the court does not intervene.

1. The "new" material now before the court does not advance Mr McNeill's case against the Club and the Council beyond what was argued before Pain J. As Ms Townsend submitted at the end of the hearing, there is, before me, "little different".

1. Her Honour analysed what was before her, and concluded that there was no serious issue to be tried. I have reviewed all that material, as well as what is now before me, and I have reached the same conclusion. I see no utility in revisiting or repeating Her Honour's remarks.

1. Amendments to a Plan of Management for Avalon Beach (Exhibit 'B' before Pain J), and a development application dated 7 May 2013 for a restaurant to be included on the top storey of the building currently under construction, are not of direct relevance to any alleged or threatened breach of the Environmental Planning & Assessment Act 1979 in the work currently underway.

1. As Pain J has already found (at [20]), an application made by Mr McNeill to the Heritage Office, due to be considered on 5 June, is also not relevant. Council is satisfied that the club house has no historic significance, and any listing of it now cannot override the rights granted by a DC which cannot now be challenged (s 101).

1. Like Her Honour, I, therefore, see no need to address the question of "balance of convenience" (Uniform Civil Procedure Rules 2005, r 25.8), but will do so for the sake of thoroughness.

1. In this respect, the only change in "balance of convenience" considerations since the earlier hearing (see Pain J at [7]-[8]) is that Mr McNeill was, eventually and with equivocation, prepared to give an undertaking as to damages.

1. However, the court doubts that he appreciates the significance of doing so, and there was no evidence tendered as to the value of it.

1. In any event, his dogged persistence in his challenges does not outweigh his delay in taking action (Pain J at [21]), which he has unconvincingly sought to explain.

1. In summary, the so-called new evidence does not establish any breach of the DC, and the application for interlocutory relief must be refused.

Conclusion & Orders

1. Accordingly, the orders of the court are:

(1)   This application for interlocutory relief is dismissed.

(2)   As the application merely re-agitated the primary arguments disposed of in matter No 40349 on 17 May 2013, Mr McNeill is ordered to pay the defendants' costs of the hearing on 27 May, on a party-party basis, as agreed or assessed.

(3)   Exhibit P1 before me is retained.

(4)   The substantive proceedings are to be associated with matter No 40349 of 2013, and listed with it before the List Judge for case management on 31 May 2013.