> Land and Environment Court of New South Wales CITATION : Sutherland Shire Council v Signorelli Investments Pty Limited and Others [2003] NSWLEC 132 APPLICANT Sutherland Shire Council FIRST RESPONDENT Signorelli Investments Pty Limited PARTIES : SECOND RESPONDENT Monte Cristo Lounge Pty Limited THIRD RESPONDENT Paul John Signorelli FILE NUMBER(S) : 40122 of 1999; 41049 of 2002 CORAM: Talbot J KEY ISSUES: Costs :- apportionment Orders :- refusal to make non-specific order LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 138 CASES CITED: Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275; Waters v PC Henderson (Aust) Pty Limited (Kirby, Mahoney and Priestly JJA, NSWCA, 6 July 1994, unreported) DATES OF HEARING: 27/05/2003 DATE OF JUDGMENT: 05/30/2003 APPLICANT Mr J A Cole (Solicitor) SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENTS Mr T M Thawley (Barrister) SOLICITORS The Law Firm of Solari JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40122 of 1999 41049 of 2002 Talbot J 30 May 2003 Sutherland Shire Council Applicant v Signorelli Investments Pty Limited First Respondent Monte Cristo Lounge Pty Limited Second Respondent Paul John Signorelli Third Respondent Judgment Introduction 1 Following judgment on 3 March 2003, Sutherland Shire Council ("the council") submitted Draft Minutes of Order to the Court on 14 March 2003. There being no resolution between the parties by 9 May 2003 the council filed a notice of motion on that day seeking an order that the respondents be required to submit draft orders or a response to the draft orders prepared by the council. When the notice of motion was returned before me on 19 May 2003, I handed the parties a copy of orders that the Court proposed and adjourned the hearing to 27 May 2003 to allow the parties time to consider their position. On 27 May 2003 I heard submissions in respect of the form of final orders and costs. 2 With minor amendments to the orders proposed by the Court on 19 May 2003 and after argument about their effect, there is now an agreement in principle between the parties that the Court makes the orders generally in that form. 3 Nevertheless Mr Cole, on behalf of the council, has argued that further orders be made as follows:- (1) restraining the respondents from undertaking any building work contrary to the Court's orders or "as approved under any valid consent or being exempt or complying development" ; (2) requiring the respondents to submit to the council a certificate from Renzo Tonin and Associates Pty Limited certifying that all works comply in all respects with the requirements of the specifications noted in the Renzo Tonin report dated 26 June 2002 ("the Tonin report"); (3) requiring the respondents to submit to the council a certificate by an accredited building surveyor in accordance with cl 138 of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation") that all work has been undertaken and completed in compliance with the orders made in matter No. 40122 of 1999 by consent on 22 August 2001 and as amended on 18 December 2001 and on 16 August 2002; (4) restraining the respondents from using the ground floor car park of the subject building for any function centre activities; (5) restraining the respondents from using the council's property for the purpose of waste and materials collection, product delivery or removal, loading or unloading for the commercial operation of the premises and any building works; and (6) restraining the respondents from using the council's property for the purpose of storage of materials and equipment associated with building works carried out on the premises. 4 The first suggested order is no more than an injunction to require the respondents to comply with existing Court Orders and the law in relation to the obtaining of development consent or any other consent required in respect of development or building work. Although, in the light of the history of the conduct of the respondents, the Court is sorely tempted to make an order emphasising what their general legal obligations are, nevertheless the prevailing desirable approach is for the Court not to make an order that is non-specific in its terms and does no more than state the legal obligations of the respondents in general terms (see Schindler Lifts Australia Pty Ltd v Debelok (1989) 89 ALR 275 at 318). 5 The reluctance of the Court to make such an order cannot be interpreted by the respondents as an indulgence by the Court. Their behaviour heretofore has been wanton in its disregard of their legal obligations. It leaves them exposed to the most extreme of sanctions if a re-occurrence of that sort of conduct is brought to the attention of the Court. The making of an order in the general terms suggested by the council would do nothing to further the position. Accordingly, I do not propose to make such an order. 6 With the object of introducing consistency into the certification process, I only propose to make an order with the same effect as cl 138 of the EPA Regulation but not pursuant to the clause. Firstly, the clause does not apply directly to the circumstances but it nonetheless provides a guideline for implementation of the order. Secondly, I am satisfied that an accredited person will be capable of applying the terms of the Tonin report and accompanying plans as well as the Court's general orders, whereas Dr Tonin, with all due respect to him, has a specific and limited expertise in relation to noise attenuation measures. 7 Suggested Orders No. 4, 5 and 6 set out above have not been the subject of sufficient evidence directed to relief in that form. The Court could foreseeably fall into the error of making orders which, on further examination, are found to be inappropriate. There has been peripheral evidence regarding the use of the council's property for various purposes, including car parking, outdoor entertainment, and access to the rear of Doltone House and the adjoining premises as well as the specific evidence in relation to landscaping. The Court is not able to determine from the evidence as it stands that the uses complained of should be the subject of an injunction. Once more, however, the respondents should not take heart from the last observation as, prima facie, the council is entitled to control the use of its own property quite beyond its general responsibility for administration of the law affecting the use and development of land in its area. By refusing to make the orders the Court is not thereby condoning conduct to the contrary. Costs 8 A reading of the judgment delivered by the Court on 3 March 2003 makes it clear, to even the most casual observer, that the council has been successful in many respects. In the Court's view, a fine toothcomb approach was justified in the circumstances. The Court's orders reflect that justification. 9 Mr Thawley's argument, on behalf of the respondents, that some of the matters complained of were found to be exempt development is correct. However, the extent of exempt development or other issues upon which the respondents were successful does not override the overwhelming number of issues upon which the Court found in favour of the council (Waters v P.C. Henderson (Aust) Pty Limited (Kirby, Mahoney and Priestly JJA, NSWCA, 6 July 1994, unreported)). 10 The fact that the council delayed for several weeks at the end of last year before seeking interlocutory relief and then sought relief on the basis of fire safety does not, in my view and in the circumstances, disentitle the council to an order for costs in respect of the interlocutory proceedings. 11 The circumstances are that although, following receipt of further advice, ultimately it may have been open for the council to form the view that a fire order in itself was not justified, interlocutory orders were made by consent on 24 December 2002. Furthermore, final orders are now made against the respondents in both proceedings. Moreover, the circumstances in November and December 2002 involved a flurry of activity by the respondents that the council perceived to be illegal. The council had a responsibility to intervene and take such action as it deemed apposite in order to regularise the situation. The fact that it may have initially taken a course that was not entirely appropriate, but nevertheless was directed to and in due course obtained the desired result, is irrelevant. 12 The Court is not prepared to make an order apportioning the costs payable by the respondents either in respect of the issues raised or in respect of the interlocutory proceedings. The council is, therefore, entitled to a costs order in its favour for all aspects of the proceedings. Declarations and Orders 13 The Court makes the following declarations:- (1) The respondents by themselves, their servants, agents or assigns have carried out development on the premises known as Doltone House No. 223 Belgrave Esplanade, Sylvania Waters ("the premises") without prior development consent of the applicant and otherwise than in accordance with the orders of this Honourable Court in matter No. 40122 of 1999. (2) The respondents by themselves, their servants, agents or assigns have carried out development on the premises known as No. 221 Belgrave Esplanade, Sylvania Waters ("the adjoining premises") without prior development consent of the applicant. 14 The Court makes the following orders:- (3) The Orders made on 22 August 2001 varied by further order dated 18 December 2001 and 16 August 2002 in matter No. 40122 of 1999 are further varied as follows:- (a) The respondents install a one hour fire rated door in, and complete the construction of, the western wall of the garbage area of the premises within three months from the date of these orders; and (b) The respondents install a roller door to provide access to a grease trap from the central car parking area. (4) The respondents remove glass swinging doors as presently installed adjacent to the southern entrance to the eastern carpark. (5) The respondents remove a 1.5 metre fire exit door, swinging door and the 600mm fixed side and centre glass panels adjacent to the doors at the northern entrance to the eastern carpark and replace with bi-fold or sliding doors strictly in accordance with the Tonin Report and orders made in matter No. 40122 of 1999 as varied by further order dated 18 December 2001 and 16 August 2002. (6) The respondents shall demolish and remove the following:- (a) The wall along the southern elevation of the ground floor, except the louvred metal wall across the rear of the garbage area and the wall adjacent to the freezer; (b) Glass swinging doors (approximately 2.5 metres wide with glass panels 600mm wide) in the southern entrance to the western carpark; (c) Glass window (approximately 3.3 metres wide) in the southern wall to the western carpark; (d) Roller door located approximately in the middle of the southern elevation of the ground floor; and (e) Garden beds located on the applicant's property outside the southern boundary of the premises. (7) The respondents construct Acoustic Access Doors to the dimensions detailed on Job No. 020389, Drawing No. A2 as specified in the Tonin Report in accordance with Order No. 2 of 16 August 2002 in matter No. 40122 of 1999 in the landscaped area on the first floor of the western side of the premises. (8) The respondents remove walls, glass infill panels and glass swinging doors constructed at the northern entrance to the western carpark and to replace these doors and structures strictly in compliance with Order No. 2 of 16 August 2002 in matter No. 40122 of 1999. (9) The respondents remove such of the wall on the western elevation of the first floor of the premises exceeding 600mm in height in strict compliance with the Tonin Report and orders made in matter No. 40122 of 1999 as varied on 18 December 2001 and 16 August 2002. (10) The respondents remove the glass swinging doors to the entry foyer on the eastern elevation of the ground floor of the premises and complete the wall in strict compliance with the Tonin Report and orders made in matter No. 40122 of 1999 as varied on 18 December 2001 and 16 August 2002. (11) The respondents remove the roller door located in the wall of the kitchen together with its associated track guides and support structure and close off the area with a solid wall in strict compliance with the Tonin Report and orders made in matter No. 40122 of 1999 as varied on 18 December 2001 and 16 August 2002. (12) Unless otherwise approved by the council, the respondents fully implement Plan 990246/1 Amendment A 12/10/01 prepared by Jones Nicholson Pty Ltd, in respect of the courtyard on the northeastern part of Lot 498 in DP 550299 in accordance with Order No. 1 made on 18 December 2001 in matter No. 40122 of 1999. (13) Unless otherwise approved by the council, the respondents remove the door in the eastern elevation of the ground floor that provides access to the freezer area and to replace it with aluminium framed glazed (10.38mm glazing) infill walls strictly in compliance with Order No. 1 made on 16 August 2002 in matter No. 40122 of 1999. 15 The Court further orders that:- (14) A. The respondents demolish the following:- (a) The brick wall constructed in a western direction from the northern façade of the premises linking to the adjoining premises; (b) The garage wall and doors at the southern boundary of the adjoining premises constructed adjacent to and as an extension of the southern wall of the ground floor area of the premises; and (c) The brick infill into the garage door of the adjoining premises on its northern façade be removed and the garage door and its associated support structure and mechanism be reinstated. B. That the respondents, their servants, agents and assigns be restrained from using, causing, suffering or permitting to be used the adjoining premises for the purposes of commercial premises and/or use associated with the function centre, including storage of shipping containers in the rear yard, without the prior development consent of the council. C. That Order No. 14A be deferred for a period of six months. (15) (a) Orders No. 5, 6 and 8 and any outstanding orders made on 22 August 2001 varied by orders dated 18 December 2001 and 16 August 2002 in matter No. 40122 of 1999 and as further varied by these orders (except orders 7, 9, 10, 11, 12 and 13 of these orders) are to be complied with within 90 days; and (b) Orders No. 4, 7, 9, 10, 11, 12 and 13 are to be complied with within 30 days. (16) Within 21 days of completion of the works required by these orders and the orders made in matter No. 40122 of 1999 the respondents shall lodge with the council a certificate by a person accredited by an accreditation body under s 109T of the Environmental Planning and Assessment Act 1979 certifying that all the works have been undertaken and completed in accordance with the following:- (a) these orders; (b) the report and plan referred to in order No. 2 made by the Court in matter No. 40122 of 1999 as subsequently varied; and (c) any other orders made in matter No. 40122 of 1999 on 22 August 2001 as varied by further orders dated 18 December 2001 and 16 August 2002 and as further varied by these orders. (17) The respective respondents pay the applicant's costs of the proceedings. (18) The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.