South Sydney City Council v Multiplex Constructions (NSW) Pty Ltd

[1999] NSWLEC 145

Land and Environment Court

of New South Wales

CITATION:

South Sydney City Council v Multiplex Constructions (NSW) Pty Ltd [1999] NSWLEC 145

PARTIES

APPLICANT:
South Sydney City Council

RESPONDENT:
Multiplex Constructions (NSW) Pty Ltd

NUMBER:

40086 of 1999

CORAM:

Talbot J

KEY ISSUES:

Interlocutory Relief :-

LEGISLATION CITED:

DATES OF HEARING:

05/12/1999; 05/13/1999

EX TEMPORE JUDGMENT DATE:

05/13/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Ms E Ranken (Solicitor)

SOLICITORS:
Pike Pike and Fenwick

RESPONDENT:
Mr T Hale (Barrister)

SOLICITORS:
Minter Ellison

JUDGMENT:
IN THE LAND AND Matter No. 40086 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 13 May 1999

South Sydney City Council
Applicant

v
Multiplex Constructions Pty Ltd

Respondent

EX TEMPORE REASONS FOR JUDGMENT


1. HIS HONOUR: One of the reasons I propose making an order in this case is because there is a serious question to be tried. There have been concessions made that at least condition 65 is a condition that cannot be complied with.

2. Obviously questions of discretion may apply. However those issues will not be ventilated until such time as an application for modification has been dealt with on its merits. I have no means of predetermining the application for modification of existing consents. The council may impose conditions which are totally and completely different and in no way reflect what has been proposed by the council and adapted to a very large extent by the respondent for the purposes of the plan of management.

3. I cannot foreshadow the way in which the Court would deal with the matter ultimately if the council refuses to grant modification. However it is clear that the only time final relief will be forthcoming is after the modification application has been dealt with.

4. What we are dealing herewith is a situation where the amenity of the residents of the area immediately adjacent to Clement Place is being very seriously disturbed by the use of that street. I accept that to a considerable extent the disturbance is caused by the use of cranes which, arguably, is authorised by the consents and has the further blessing of the council in the form of permits issued from time to time under the Traffic Act. However there are other aspects of the plan of management which lend legal approval to the use of Clement Place for purposes beyond occupation by cranes from time to time. To the Court's mind these are matters that need to be addressed at this stage of interlocutory relief for the purposes of, as far as practicable, preventing any injury to members of the public in respect of their amenity and even physically.

5. On the balance of convenience I am satisfied that the appropriate way for the Court to proceed is to make an order in the form I have outlined so that there can be no misunderstanding between now and when a final determination is made that the plan of management is one that the respondent must have regard to and adhere to.

6. The only reason I am making the order is I believe that it facilitates a definition of the relationship between the council and the respondent, and indirectly the residents, so that between now and a final hearing the construction of stage 2 in particular and the completion of stage 1 of the development can continue. Otherwise it would be impracticable if the conditions of consent were to remain as the control.

7. The plan of management generally has the approval of the council except in respect of one major matter and possibly also in respect of some minor matters in so far as they relate to the extent to which the respondent should use its best endeavours to comply. I have already indicated that I am not prepared to require an indemnity in the form set out in the draft plan of management.

8. I do not consider the indemnity to be within the proper province of the dispute before the Court. Indeed it may even be beyond what is authorised by the Environmental Planning and Assessment Act or the Local Government Act. I do not need to finally decide that question. I am simply saying that I am not satisfied an indemnity should be provided.

9. I appreciate that the respondent has responded to the council's suggestion in regard to a plan of management. It is unfortunate the parties were not able to reach final agreement without the Court being required to make an order. That was not to be.

10. I do not believe that the respondent does not intend to comply with the terms of the plan of management. However I am not prepared to allow for the plan of management to proceed merely in the form of an unacceptable undertaking to the council. That is neither a satisfactory nor enforceable way of proceeding.

11. In order to overcome the Court's doubts in that respect and for that reason I propose to make a formal order in the terms of the minute of order which I—

12. HALE: I'm sorry, I thought the basis was that we've offered the undertaking to the Court.


HIS HONOUR: Oh, have you? I didn't hear that. You haven't done that. You doing it? I accept it.

HALE: I'm sorry, yes, upon the undertaking - I'm sorry, that's how I started yesterday and I thought I'd said it a couple of times.

HIS HONOUR: Well I've never got to that point.

HALE: I said in the event--

HIS HONOUR: Articulate it now for the record, Mr Hale, so I understand what you're doing.

HALE: What our position is--

HIS HONOUR: Having heard what I've had to say, you--

HALE: Rather than having an order imposed upon us--

HIS HONOUR: You give the undertaking to the Court--

HALE: We give the undertaking to the Court--

HIS HONOUR: On the basis that the council gives the usual undertaking as to damages.

HALE: As to damages.

HIS HONOUR: As the undertaking to the Court is given in the form that I initial and place with the papers.

HALE: Correct.

HIS HONOUR: Hand it to Mr Hale so that it's checked.

HALE: Sorry, I thought I'd made it--

HIS HONOUR: No, I don't think we'd got to that point. Certainly not on my understanding and by the look on Ms Ranken's face she didn't think so either.

RANKEN: No.

HALE: Yes, I thought when I began yesterday I'd said that's what we'd do rather than--

HIS HONOUR: Well you didn't say it today to remind me.

HALE: No.

HIS HONOUR: Anyway I accept your undertaking.

RANKEN: Your Honour, I know it's sort of seen differently but I didn't actually get an opportunity for submissions in reply and there was just one comment there that you made about belatedly, the council belatedly responding and I was going to in submissions in reply point out that at that meeting we didn't get given anything, we got a proposal afterwards.

HIS HONOUR: Well the reason you didn't get a reply was that I was going to make an order in your favour.

RANKEN: Yes. I mean it doesn't matter, but yes.

HIS HONOUR: Well look, I've said throughout I think that point's been dealt with throughout the argument and--

RANKEN: Yes. I just thought that it might have been seen as implied criticism of council belatedly getting back to them which I wanted--

HIS HONOUR: Well I was going to give you an order so it couldn't have been too bad.

RANKEN: Yeah, okay.

HALE: We offer that on--

HIS HONOUR: Undertaking in that form?

HALE: Yes, an undertaking.

HIS HONOUR: Undertake that the respondent by itself rather than an order that - undertake that--

HALE: Perhaps until further order?

HIS HONOUR: Yes, undertake until further order that--

HALE: Yes, and that of course is offered upon the council offering the usual undertaking as to damages.

HIS HONOUR: Yes, yes, upon the applicant giving the usual undertaking as to damages, the respondent undertakes until further order that it by itself - and then the rest reads--

HALE: Yes.

HIS HONOUR: Yes, I accept that. I note the undertaking in relation to damages. The question of costs is reserved because I've got to come back at 2.00 pm and do another matter. If you want to argue about costs you can argue about it some other time.

HALE: I'm sorry your Honour didn't - when I used the word "enforced" undertaking I thought that that was the shorthand for--

HIS HONOUR: Yes, it may have been my fault that I didn't pick it up. I'm comforted by the fact that Ms Ranken who has paid close attention throughout this hearing didn't pick it up either and I thought when I made the clear offer to you, you rejected it.

HALE: I thought I'd accepted it.

HIS HONOUR: Well when I started giving some reasons just to make the record straight it must have become clear to you that I hadn't understood that. Anyway, it's over.

HALE: Yes.

RANKEN: Your Honour, I thought I should return those exhibits that weren't--

HIS HONOUR: Which? In the other matter?

RANKEN: They're the ones that weren't re-tendered.

HIS HONOUR: Yes, I returned them a moment ago.

RANKEN: Oh, returned them? Oh, I thought you said they wanted--

HIS HONOUR: No.

RANKEN: Sorry, your Honour, I misunderstood.

HIS HONOUR: No, no, and the exhibits tendered today are returned. Costs reserved.