Willoughby City Council v Sahade - [2000] NSWLEC 38

Land and Environment Court

of New South Wales

CITATION: Willoughby City Council v Sahade and Ors [2000] NSWLEC 38

PARTIES:
APPLICANT
Willoughby City Council
RESPONDENTS
Sahade and Ors

FILE NUMBER(S): 40016 of 2000

CORAM: Pearlman J

KEY ISSUES: Interlocutory Relief :- serious question - balance of convenience - costs

LEGISLATION CITED: Willoughby Local Environmental Plan 1995

CASES CITED:

DATES OF HEARING: 02/02/2000

EX TEMPORE
JUDGMENT DATE : 02/02/2000

LEGAL REPRESENTATIVES:

APPLICANT
Ms S A Duggan (Barrister)
SOLICITORS
Mallesons Stephen Jaques
FIRST RESPONDENT
Mr M V Sahade (Barrister)
SOLICITORS
Comino Prassas
SECOND RESPONDENT
Mr M V Sahade (Barrister)
SOLICITORS
Comino Prassas
THIRD RESPONDENT
Mr M V Sahade (Barrister)
SOLICITORS
Comino Prassas

JUDGMENT:

IN THE LAND AND

40010 of 2000

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 2 February 2000

WILLOUGHBY CITY COUNCIL

Applicant

ANTHONY SAHADE

First Respondent

CRYSTAL CAR WASH CAFE PTY LTD

Second Respondent

KINGSFORD CAR WASH PTY LTD

Third Respondent

JUDGMENT

1. On 31 January 1999, Cowdroy J granted an interlocutory injunction in favour of the applicant, Willoughby City Council (“the council”) in these proceedings and ordered that the proceedings be stood over till today. Today the council seeks a continuation of the order that Cowdroy J made, subject to one qualification to which I will later refer, and in addition, the granting of further interlocutory orders.

2. Those orders that are now sought, including the order made by Cowdroy J, are as follows:

(1) An order, pending further or other orders, that the respondents, their servants or agents be restrained from carrying out landfilling and earthworks (the “Earthworks”) on lots 3 and 4 in deposited plan 3372, known as 315 Victoria Avenue, Chatswood (the “Property”).

(2) An order, pending further or other orders, that the respondents, their servants or agents be restrained from carrying out alterations and additions to the existing building on the property (the “Alteration Works”).

(3) An order that the respondents, their servants or agents immediately place hay bales and geotech fabric along the full length of each boundary of the Property, and immediately cover, from top to bottom, the full length of the perimeter fence on each boundary of the Property in hessian cloth in order to ensure that no dust, sediment or soil or other similar material escapes from the Property as a result of the Earthworks having been carried out.

(4) An order that the respondents obtain and submit to the council a certificate by a certified practising structural engineer certifying:

(a) structural adequacy of the existing building to bear the load of the slab placed on that building;

(b) the adequacy and appropriateness of the design of the slab to ensure it is structurally adequate, and

(c) the adequacy of the keying-in of the slab to the existing building;

such certificate to be provided to the council within 7 days of the date of this order.

Until such time as the certificate is provided to the council, the respondents shall within 24 hours of the date of this order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 38
Decision Date: 02/02/2000

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over by Pearlman J considered an application by Willoughby City Council against Sahade and others. The council sought an interlocutory injunction to restrain the respondents from carrying out certain works on a property located at 315 Victoria Avenue, Chatswood. The primary legal issues revolved around whether there was a serious question to be tried, the balance of convenience, and costs.

The court held that there was a serious case to be tried, as the respondents had undertaken activities on the property which required development consent, and they had not obtained it. The court found that the balance of convenience lay in favour of the council due to concerns about public safety, the risk of contamination, and the need to uphold the law. Although the respondents argued that there was a financial prejudice due to the delay in their proposed activities, the court did not find this to be a sufficient factor to outweigh the other considerations. The court decided to grant the interlocutory injunctions sought by the council, subject to certain modifications and the reservation of costs.

The formal orders made by the court included restraining the respondents from carrying out landfilling, earthworks, or any building works on the property. The court also required the respondents to take certain steps to mitigate the risk of contamination and to obtain a structural engineer's certificate. The court granted liberty to the parties to apply for further orders as the case unfolded and stood the proceedings over to a later date. The costs of the application for interlocutory relief and the hearing were reserved.

Orders