South Sydney City Council v Multiplex Constructions NSW Pty Limited

[1999] NSWLEC 165

Land and Environment Court

of New South Wales

CITATION:

South Sydney City Council v Multiplex Constructions NSW Pty Limited [1999] NSWLEC 165

PARTIES

APPLICANT
South Sydney City Council

RESPONDENT
Multiplex Constructions NSW Pty Limited

NUMBER:

40086 of 1999

CORAM:

Cowdroy AJ

KEY ISSUES:

Development :- Conditions - interlocutory relief sought - undertaking provided by respondent ensuring compliance with hours of operation - notification to subcontractors - potential liability of subcontractors for aiding and abetting a breach of the undertaking - injunctive relief suspended in respect of other issues concerning the implementation of the development consent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

05/04/1999; 05/05/1999

EX TEMPORE JUDGMENT DATE:

05/05/1999

LEGAL REPRESENTATIVES:

APPLICANT
Ms E Rankin (Solicitor)

SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr T Hale (Barrister)

SOLICITORS
Minter Ellison

JUDGMENT:

Relief claimed

1. In this matter, by further amended application filed on 3 May 1999, the applicant (“the council”) seeks interlocutory relief against the respondent arising out of a construction currently being undertaken at land known as 96 to 110 Bayswater Road, Rushcutters Bay.

2. The relief claimed seeks essentially for specific orders, namely an order that the respondent comply with the hours provided by the building approval; secondly, that unloading and loading of vehicles be carried out only in accordance with condition 65 of the building approval number Q98-00206; thirdly, that all loading and unloading take place within the confines of the site at all times; finally, that the respondent, its servants, agents, employees, contractors and subcontractors, and invitees be restrained from carrying out building work on the premises so as to obstruct the public way by building materials, or in any way whatever without written approval of the applicant.

3. In support of the claim for relief affidavits have been filed from residents in the close vicinity of the building site, and also from Mr Rolf representing the council. In summary, the evidence of those witnesses discloses various difficulties experienced in relation to the current operations at the site, and the fact that those difficulties have extended over several months. Mr Muldoon, the project manager of the respondent has provided two affidavits in which he has outlined on the interlocutory application his investigations and his efforts to ensure compliance with the requirements of the building approval.

4. In each case I find the council has established a prima facie case, that is a case sufficient to justify interlocutory relief. Authorities have stated the requirements for the granting of such relief such as the judgments of the High Court in the State of Queensland v Australian Telecommunications Commission (1985) 59 ALJR 562, and in the following year in Castlemaine Tooheys Limited v State of South Australia (1986) 161 CLR 148 particularly where the Chief Justice recited the principles at p153. This is not a case where irreparable injury will be suffered, but it is a case where a disturbance which is not capable of rectification in terms of money is to be considered. I am satisfied at the prima facie stage of the case that the council has made out a claim for relief in relation to each of the clauses, or paragraphs of its further amended application. Having said that, it is apparent from the evidence that the matter of critical concern to the residents is the operation of the site outside the approved building hours.

The Undertaking

5. The respondent has now offered to the court an undertaking that it will not carry out building work approved by building application Q96-00587, granted on 23 August 1997, and by building approval Q98-00206, granted on 21 May 1998, outside the hours specified in condition 15 of BA Q98-00206. Until further order I regard that undertaking as one which should be accepted by the court. It indicates that the respondent is mindful of its obligations and gives recognition of the necessity to ensure that it and its subcontractors will not breach the terms of the building consent. The relief does not extend to other parties such as invitees, but for present purposes it is to be hoped the undertaking will satisfy the concerns of the residents. Their disturbance is quite plainly made out in their statements. I should add that Mr Muldoon for Multiplex has, as he has said, done all that he can do to ensure compliance. On 16 April and 23 April 1999 he issued notices to the subcontractors requiring observance of the conditions. Mr Muldoon will be in a position to inform the subcontractors that the undertaking is to operate as a court order. A breach by any one of them could constitute a contempt of court. If so the subcontractors themselves may be liable to the charge that they have aided and abetted a breach of the undertaking and render them liable to damages. In this event, orders could even restrain them from attending the site again.

Matters requiring practical negotiation

6. I turn now to the other issues in respect of which relief has been claimed. Condition 65 of building approval number Q98-00206, granted on 21 May 1998, provided by condition 65 thereof that all deliveries to the site and all excavation material shall be removed from the site via Bayswater Road only. Whilst that condition may have been appropriate in the early stages of the development, it is now nearing it is completion, and the evidence provided by Mr Rolf yesterday in cross-examination was to the effect that he agreed with the question put to him by counsel for the respondent that it would be highly dangerous if that condition were enforced due to the nature of the heavily trafficked area of Bayswater Road.

7. In these circumstances the court at this stage will make no order in relation to paragraph two. There has been a high level of co-operation between the council and Mr Muldoon representing Multiplex and for this reason the court will stand over the claim for relief set out in paragraph two of the further amended application in the hope that some resolution may be reached.

8. The order sought in paragraph three of the further amended application sought to restrain the respondent from loading or unloading other than within the confines of the site. This is also a matter which poses severe practical difficulties for the respondent. I regard the application for that type of relief as being in the same category as that concerning the deliveries to the site referred to in the prayer for relief in paragraph two.

9. Order four seeks relief in respect of obstruction to a public way by building materials or otherwise. This is again a matter which although a prima facie case has been made out, the court will make no order at this stage. It is to be hoped that some workable resolution can be made between the parties.

10. I have been impressed by Mr Rolf of the council in the manner in which attempts have been made to deal with practical issues which inevitably arise on a building project of this size. I am also impressed by the fact that Mr Muldoon has done all that he physically can do in the hope of addressing the problems. For that purpose I propose to note that the relief claimed in paragraphs two, three and four are to be adjourned for a period of seven days to allow some resolution.

11. The affidavits in support of the council's case refer to other matters of inconvenience which has been suffered by the residents. Some of those matters refer to noise, dust and general disturbance, which do not of themselves necessarily breach any of the conditions for which relief has been sought. However the specific matters referred to in paragraphs one, two, three and four of the further amended application are specific matters in respect of which attention is required.

Orders

12. The orders of the court are as follows:

1. The court adjourns this hearing for a period of seven days upon the court accepting the undertaking provided by the respondent concerning the hours of operation of the building site.

2. That undertaking is to continue until further order.

3. I grant leave to the council to re-list the matter immediately in the event that there is any perceived breach of the undertaking provided to the court.

4. I also grant the same leave to the respondent in the event that there is any proven obstruction of a kind referred to in paragraph four of the further amended application.

5. Otherwise general liberty to apply is given to each party.

6. The matter will be re-listed again at 9.30 am on 12 May 1999. At that time in the event that the negotiations concerning the requirements of the council, as set out in paragraphs two, three and four of its further amended application, have not been resolved the court will continue to hear the claim for interlocutory relief in respect of those matters.

7. The court directs that any affidavits to be relied upon by the council be provided to the respondent by Tuesday 11 May at 11am. If the respondent wishes to adduce evidence that evidence is to be provided to the applicant by 5pm on Tuesday 11th. That will effectively permit the parties three clear working days after today to confer to see whether some resolution can be met.

8. The question of costs of this application will be reserved until 12 May.

9. The exhibits will remain with the papers pending the further hearing.