Land and Environment Court of New South Wales CITATION : Townson Property Corporation Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 222 PARTIES : Townson Property Corporation Pty Ltd (Appl) Woollahra Municipal Council (Resp) FILE NUMBER(S) : 41553 of 2003 CORAM: McClellan CJ Practice and Procedure :- Joinder Party who is beneficiary of a development consent INTERLOCUTORY RELIEF: KEY ISSUES: Injunction Preparatory work for the construction of a building Development application presently before Council No threat of unlawful construction LEGISLATION CITED: CASES CITED: Oshlack v Richmond River City Council (1998) 193 CLR 72 DATES OF HEARING: 23 April 2004 EX TEMPORE 04/23/2004 JUDGMENT DATE : H P Irish (Appl) PricewaterhouseCoopers Legal (Sol - Appl) LEGAL REPRESENTATIVES: Whitney (Resp) Michell Sillar (Sol - Resp) S Kondilios (Sol - Resp) Maddocks Lawyers (Sol - Resp) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 41553/03 McCLELLAN J FRIDAY 23 APRIL 2004 TOWNSON PROPERTY CORPORATION PTY LTD Applicant v WOOLLAHRA MUNICIPAL COUNCIL Respondent Judgment Introduction 1 HIS HONOUR: This matter comes before me this morning on the motion of the applicant. The motion seeks two orders. The first is that the owners of the property, the subject of the proceedings, be joined as a party pursuant to the relevant rule of the Court. The second prayer seeks an interlocutory order restraining further work being undertaken on the property. 2 The challenge at the heart of these proceedings is to the validity of a consent granted by Woollahra Municipal Council. When the proceedings were commenced, the applicant joined the Council but did not join the beneficiary of the consent. As was made plain by the High Court in Oshlack v Richmond River City Council (1998) 193 CLR 72, proceedings such as these cannot be properly constituted unless the party who is the beneficiary of the consent is joined. It is to that party which the Court will look in order to mount, if this is possible, arguments defending the validity of the consent. The Council is expected, having regard to what the majority said in the High Court, to play a less active role in the proceedings. 3 It is plain to me that these proceedings could not be properly constituted without the owners of the property and the beneficiaries of the consent being joined. Accordingly, I propose to make order 1. 4 However, the solicitor who appears for the owners tells me this morning that they have decided not to pursue the consent, the subject of the proceedings, but propose to lodge a new development application with the Council. That application is to be lodged within a matter of a short number of weeks and it is believed that the Council will be able to consider it within probably six weeks. 5 I should indicate that the application is, as I understand it, for a single dwelling house. I am also informed that, to date, preparatory work for the construction of a new building has been undertaken on the site. That work includes clearing and the preparation of kerbing and guttering and other facilities. Plainly, if the current intention to pursue a different form of development is pursued, it will be necessary for the owners to wait until consent has been granted before work by way of construction of a new building can be lawfully commenced on the site. There is no present threat to do otherwise. 6 In those circumstances I will not make order 2 in the notice of motion. However, if the applicant at a later point in time believes that, by reason of any activity by the owners, it is necessary to approach the Court for urgent relief, then of course a motion to that effect can be pursued. 7 For those reasons I make order 1 in the notice of motion. IRISH: Your Honour could I invite you to stand over order 2 rather than dismiss it today for the reasons you just expressed. HIS HONOUR: I make order 1 in the notice of motion and I make no other order and I will stand the matter over until Friday 18 June 2004 at 9.15 before me. KONDILIOS: And vacate 10 May your Honour? HIS HONOUR: And will vacate 10 May. IRISH: Your Honour I understand that you, on a previous occasion, gave directions to the council in relation to the finding of facts in their own council file about the height of the building, having regard to the amended points of claim now asserting that the development consent was ultra vires for the want of a SEPP 1 objection and I would request that the Court not relieve the council of that direction in the circumstances. HIS HONOUR: I don't remember it precisely, what did I say? KONDILIOS: Your Honour we're in breach of the height plan by a development standard by 20 centimetres, it is said and that is a basis upon which these proceedings are brought. On the last occasion-- HIS HONOUR: And you didn't put in a SEPP 1? KONDILIOS: Yes for 20 centimetres, it is said. So surveys might fix that and you directed that surveys be prepared and information be exchanged about that but given the course that we're taking now by your orders, compliance with those directions now is just redundant and will come at a cost for no reason, other than to comply with those orders. HIS HONOUR: Well you've got a concession on the transcript there Ms Irish. IRISH: Well except your Honour, I thought it was the Council which was directed to go on that fact finding tour, not Mr Kondilios. HIS HONOUR: Well maybe but there's not much point in going beyond that now is there. IRISH: I seek the costs of today's motion your Honour. HIS HONOUR: Yes I will reserve the costs of today's motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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