Randwick City Council v Link Construction (NSW) Pty Ltd
[2010] NSWLEC 86
•28 May 2010
Land and Environment Court
of New South Wales
CITATION: Randwick City Council v Link Construction (NSW) Pty Ltd [2010] NSWLEC 86 PARTIES: APPLICANT
RESPONDENT
Randwick City Council
Link Construction (NSW) Pty LtdFILE NUMBER(S): 40375 of 2010 CORAM: Craig J KEY ISSUES: CIVIL ENFORCEMENT :- breach of s 76A Environmental Planning and Assessment Act 1979 - carrying out building work in breach of conditions of consent - continuous course of conduct in breach of the conditions of consent - respondent knowingly breached conditions of consent - respondent restrained from carrying out work in breach of conditions of consent. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 28 May 2010 EX TEMPORE JUDGMENT DATE: 28 May 2010 LEGAL REPRESENTATIVES: APPLICANT
H Irish (Barrister)
SOLICITOR
Shaw Reynolds Bowen & GerathyRESPONDENT
J Palmer, G Green of Pikes Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
CRAIG J
28 MAY 2010
EX TEMPORE JUDGMENT10/40375 RANDWICK CITY COUNCIL v LINK CONSTRUCTION (NSW) PTY LTD
1 HIS HONOUR: By a summons filed in this Court on 17 May 2010, Randwick Council (the Council) seeks both interlocutory and final relief directed to the carrying out of building activities on the site known as 438-448 Anzac Parade, Kingsford. It is claimed that the respondent is carrying out building work on that site in breach of conditions 46 and 50 of development consent DA 543/2008 which was granted on 21 October 2008. That determination and grant of consent operated from 3 November 2008. In light of the breaches alleged, if proved, there would be a breach of s 76A of the Environmental Planning and Assessment Act 1979.
2 The matter came before me initially on 26 May 2010 as an application for interlocutory relief. At that time an undertaking was proffered on behalf of the respondent, effectively indicating that it would not carry out work in breach of the relevant conditions of development consent which limited the hours of operation during which building work could be undertaken. The matter has come before me today on a final hearing basis.
3 Mr Green, who appeared on behalf of the respondent, has candidly acknowledged on behalf of his client that it has carried out building work in breach of the development consent. However, he submits that I should not make orders precisely in accordance with those which the Council seeks. Rather he asks that I make orders which accommodate the exigencies of carrying out building work on a large project by allowing hours of operation in certain circumstances to extend beyond those identified in the development consent.
4 The relevant condition contained in the development consent is condition 46. It provides as follows:
- “46. Except with written approval of Council’s Manager of Health, Building & Regulatory Services, all building, demolition and associated site works (including site deliveries) must only be carried out between the hours of 7.00am to 5.00pm on Monday to Friday inclusive and (except as detailed below) between 8.00am to 5.00pm on Saturdays.
- All building, demolition and associated site works are strictly prohibited on Sundays, Public Holidays and also on Saturdays adjacent to a Public Holiday.
- In addition, the use of any rock excavation machinery or any mechanical pile drivers or the like is restricted to the hours of 8.00am to 5.00pm (maximum) on Monday to Friday only, to minimise the noise levels during construction and loss of amenity to nearby residents.”
5 Condition 46 is preceded within the terms of the development consent by the following statement:
- “The following conditions are applied to ensure that the development satisfies relevant standards of construction and to maintain adequate levels of health, safety and amenity during construction.”
6 It is fair to say that condition 46, which as it happens is repeated in condition 50, are conditions specifically directed to the carrying out of construction of this development.
7 The development itself comprises the demolition of structures on the site at 438 - 448 Anzac Parade, Kingsford, and the construction in their place of an eight-level, mixed use development comprising four ground level retail tenancies, a restaurant and eleven retail commercial tenancies at first floor together with seventy-four residential units and basement car parking.
8 The evidence led before me discloses that since 8 January 2010 a number of breaches of condition 46 have occurred. Initially some eight penalty notices were issued by the Council to the respondent in which penalties were claimed for breach of hours during which building work was able to be carried out. During February, March, April and May various officers of the Council have, in addition, observed work being carried out on site outside of the hours of operation prescribed by condition 46. In general, although not exclusively, those works have seemed to have been directed to the carrying out of concrete pours after hours usually later in the day beyond the limitation of 5pm. That is the time by which work is to have concluded on weekdays, Monday to Friday. There is evidence of an occurrence of building work, not comprising a concrete pour, taking place on a Sunday.
9 I am satisfied on the basis of this evidence that there has been a continuous course of conduct which has involved the breach of condition 46 of the development consent. It seems that until these proceedings were commenced on 17 May 2010, the respondent was content to carry out building work in contravention of condition 46, apparently accepting either penalty notices or such criticism as the Council might heap upon it for so doing. Its explanation is that it did not have control over concrete pours and the exigencies which surround that kind of construction work, with the result that it was essential that it continue with work, notwithstanding that so to do involved a breach.
10 While I am not unmindful of the exigencies that can occur during the course of construction work, particularly major construction of the kind which would be involved in giving effect to this development consent, it seems to me that there has been adequate opportunity for the respondent to recognise the problem that confronted it in conforming with the hours of operation. The opportunity to recognise the difficulty and seek to remedy it has existed, on a strict view, since the date of grant of the development consent in October 2008. Certainly, it has, at a practical level, had that opportunity following its commencement of construction which I am told occurred in November 2009. Even if it was required to commence work before the true effect of the limitations imposed by condition 46 was appreciated, the issue of penalty notices commencing in January of this year ought to have brought home to it a recognition that it needed to address the limitation that condition 46 imposed. It seems it was not until the commencement of these proceedings that it recognised the importance of compliance. Only today has it lodged an application with the Council pursuant to s 96 of the Environmental Planning and Assessment Act, seeking to modify condition 46.
11 These proceedings do not provide an appropriate vehicle to consider whether any changes should be made to requirements for hours of building work as those requirements are expressed in condition 46. It is a condition which has been an operative condition of consent since October 2008. Subject to one matter dealing with the offer made by the respondent to modify its work practice, I do not intend to make an order that does other than substantially reflect the present requirements of condition 46. If, upon determination of the application for modification under s 96, either the Council or an appeal to it, the Court determines that there should be some qualification to the limitation of hours, of the kind which the respondent contemplates, that would be the time from which change can be made.
12 I am satisfied that it is appropriate to make orders to restrain the respondent from carrying out work in breach of condition 46. I am not disposed to make a declaration as I do not see it serving any utility in the context of this case. The Council has sought such a declaration but the purpose which it would serve is not made apparent to me. Civil enforcement of the provisions of the Environmental Planning andAssessment Act will not, so it seems to me, generally enliven the need for the making of a declaration. The position may be different in the case of challenge made consequential upon judicial review proceedings.
13 The orders that I make are therefore as follows:
- 1. Order that the Respondent by itself, its servants and its agents be restrained from carrying out building work, demolition or site works on land known as 438 – 448 Anzac Parade, Kingsford outside the hours of 7 am – 5 pm Monday – Friday inclusive and between 8 am – 5 pm Saturdays or using any rock excavation machinery or any mechanical pile drivers or the like outside the hours of 8 am – 5 pm Monday – Friday inclusive, except with written approval of the Applicant’s Manager of Health, Building and Regulatory Services, contrary to Condition 46 of DA/543/2008 granted on 21 October 2008 for demolition of the existing buildings and erection of a new mixed use development in its place.
2. Order that the Respondent pay the Applicant’s costs, agreed in the sum of $13,200.
- 4. Liberty reserved to either party to apply on 2 day’s notice one to the other.
- (i) That the Respondent will, pending any modification to Condition 46, commence any concrete pour between 7 am – 9 am.
(ii) That it will in context of any such concrete pour, ensure that the volume to be poured does not exceed 180 cubic metres.
(iii) That if the Applicant considers the terms of Order 1 to have been breached, it will not seek to enforce that Order or bring contempt proceedings in respect of any such alleged breach without first seeking an explanation from the Respondent as to why works took place in apparent breach of Order 1 or Conditions 46 and 50 of the Development Consent.
- (iv) In considering any such explanation the Council will take into account the extent of prior notification, if any, of the intention to act in breach and whether there were public interest reasons, such as work place or public safety considerations, that are claimed to justify such a breach.
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