Over Our Dead Body Society Inc. v Byron Bay Community Association. Inc

[2001] NSWLEC 211

Reported Decision: 117 LGERA 233

Land and Environment Court

of New South Wales

CITATION:	Over Our Dead Body Society Inc. v Byron Bay Community Association. Inc. [2001] NSWLEC 211
PARTIES:	APPLICANT: Over Our Dead Body Society Inc. RESPONDENT: Byron Bay Community Association Inc.
FILE NUMBER(S):	40088 of 2001
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- Application to dissolve interim injunction - Proceedings not yet finally determined - Application adjourned until final orders are made.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 81A(2)
CASES CITED:
DATES OF HEARING:	20 August 2001
EX TEMPORE JUDGMENT DATE :	08/20/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr T S Hale, SC SOLICITORS Beesly and Hughes RESPONDENT: Mr D Wilson, Barrister SOLICITORS Stone and Partners

JUDGMENT:

IN THE LAND AND

Matter No. 40088 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

20 August 2001

OVER OUR DEAD BODY SOCIETY INCORPORATED.

Applicant

v

BYRON BAY COMMUNITY ASSOCIATION INCORPORATED

Respondent

JUDGMENT ON APPLICATION BY RESPONDENT FOR DISSOLUTION OF INTERIM INJUNCTION GRANTED ON 18 MAY 2001 BY SHEAHAN J.

Bignold J:

1. On 8 June 2001, I delivered judgment in a matter that had been argued a few days earlier in which the single issue for adjudication presented to the Court was whether demolition work carried out by or on behalf of the Respondent to parts of an existing building known as the Byron Community Centre situate at the corner of Johnson Street and Fletcher Lane, Byron Bay had been carried out in breach of the Environmental Planning and Assessment Act 1979, s 81A(2) (EP&A Act), which forbids the carrying out of the erection of a building in accordance with the development consent until a construction certificate for the building work has been issued.

2. The background to the proceedings, the subject of that judgment, is traversed in the earlier part of my judgment. Relevantly, the proceedings were commenced by the Applicant on 18 May 2001 seeking a declaration that the demolition work had been undertaken in breach of development consent and seeking orders that the Respondent be restrained from undertaking any demolition or building work whatsoever.

3. On that day, the Applicant obtained an ex parte interim injunction restraining the Respondent from carrying out any demolition or building work whatsoever pending further order.

4. In granting that relief, Sheahan J accepted the Applicant’s usual undertaking as to damages. A few days later on 22 May 2001, his Honour continued the interim injunction and ordered the final hearing be expedited.

5. Those were the circumstances in which the matter came before me for hearing on 5 June 2001.

6. In my judgment delivered on 8 June 2001, I concluded that there had been a relevant infringement of the EP&A Act, s 81A (see par 59).

7. I went on to say in par 60 that that holding was sufficient to uphold the Applicant’s claim for declaratory relief in its amended form.

8. In par 61, I ordered that the question of the final form of relief be reserved, as was the question of costs, with liberty to restore on five days notice.

9. The parties have not returned the matter to the Court to deal with the reserved question of final form of relief and the question of costs. However, the Respondent has filed a Motion seeking the dissolution of the interim injunction granted by Sheahan J on 18 May 2001 as continued by his Honour on 22 May 2001.

10. In support of that Motion, the Respondent relies on a number of affidavits which have been filed in the proceedings, regrettably some of them have not formally been served upon the Applicant’s Solicitor (although an affidavit in draft form by one of the deponents was served before today’s hearing).

11. In any event, on the hearing of the Motion today, the Applicant has urged that the Court not deal with the issue of the final form of relief to be granted in the proceedings and that it not entertain the relief claimed in the Notice of Motion until it deals finally with the proceedings.

12. The Respondent’s Counsel has proffered a draft form of order in the proceedings which provides for the granting of appropriate declaratory relief but no substantive relief other than the declarations, and it has been submitted on behalf of the Respondent that in the circumstances, there should be no order as to costs.

13. Senior Counsel for the Applicant, in opposing the relief sought as being essentially premature (inasmuch as the Court has not yet been called upon to adjudicate upon the reserved question of the final form of relief) has drawn attention to a number of matters arising on the face of the Respondent’s affidavits.

14. In particular, Senior Counsel for the Applicant has submitted that the Court would not, independently of finally determining the proceedings, discharge the interim injunction in circumstances where it is far from clear that the Respondent has a present ability and capacity to undertake the approved alterations and additions to the existing building.

15. The thrust of this submission is that unless the Court were so satisfied of the Respondent’s capacity to set about the carrying out of the approved project, the Applicant’s case for substantive relief in respect of the found breach of the planning law would provide, coupled with that fact, a sound or plausible basis for the seeking of substantive relief, for example, the restoration or reinstatement of some of the partly demolished building.

16. In that respect, I note that when the matter was last before Sheahan J on 22 May 2001, it appears to have been the fact that the materials demolished were being stored by the Respondent’s builder so that on the face of it, there would be some capacity for restoration or reinstatement, if such be required in any final relief granted in the proceedings.

17. However, Senior Counsel for the Applicant fairly contemplated a different outcome to the question of final relief if the Court were ultimately satisfied of the Respondent’s present capacity and willingness to proceed with the approved development but added the rider that the Applicant should be given the opportunity to examine the question of the validity of the construction certificate (which has been issued since my earlier judgment in the proceedings) and more particularly, to form a view as to how, in fact and in law, the issue of that certificate impacts (if at all) upon the issues raised in the present case.

18. Counsel for the Respondent has opposed the suggestion that fell from the Applicant’s Senior Counsel, that the matter should be stood over for a week or two to enable all outstanding issues in the case to be resolved.

19. I note in one of the certificates issued by the Council as a concomitant of the construction certificate, that it is anticipated that the Respondent will be desirous of commencing to build the project on 30 September 2001.

20. In the circumstances, I am satisfied that it would be overall, a fair and reasonable approach, to give the parties an opportunity to consider their respective positions so that I can deal finally with the case.

21. In short, I am satisfied that the Applicant should have an opportunity to consider its position, and in that respect what I propose to do in the directions that I am about to give, does not seem to me to visit any unfairness or prejudice on the Respondent, who obviously having obtained in recent times the construction certificate from the Council is desirous of being able to proceed with the approved project. It obviously cannot do so whilst the interim injunction remains in place.

22. Accordingly, the question of the final resolution of the proceedings, calls for urgent consideration and the directions I give will be directed to that end.

23. In the circumstances, I propose to adjourn the hearing of the Motion until Friday 31 August at 9.30 am. I will also direct the Applicant by Motion filed by 28 August 2001 to claim whatever final relief in the proceedings it is seeking.

24. By 27 August 2001, I direct the Respondent to file all affidavit material upon which it relies both in respect of the adjourned Motion to dissolve the interim injunction and in relation to the outstanding question to be dealt with on Friday 31 August 2001 as to the final relief to be given in the proceedings, including the question of costs.

25. The direction is also given to the Applicant that if it, by Motion filed the following day (which will give it a chance to examine the evidence presented by the Respondent the day before), files a Notice of Motion claiming substantive relief other than declaratory relief in the proceedings, its evidence in support of that Motion should also be filed by the close of business on Tuesday 28 August 2001.

26. For the foregoing reasons, the matter is adjourned for final hearing on Friday 31 August 2001 with the directions for preparation both in respect of the current Notice of Motion before the Court and any Notice of Motion which the Applicant wishes to bring to the Court, with liberty to restore in case there is a change in circumstances on two days notice.