> Land and Environment Court of New South Wales CITATION : Pittwater Council v Walters & Anor [2003] NSWLEC 97 APPLICANT Pittwater Council FIRST RESPONDENT PARTIES : Robert Isaac Walters SECOND RESPONDENT The Palm Beach Wine Co Pty Limited (ACN 087 313 308) FILE NUMBER(S) : 40626 of 2002 CORAM: Pain J KEY ISSUES: Interlocutory Relief :- whether Respondents should be released from undertakings - whether material change in circumstance such as to justify release from undertakings LEGISLATION CITED: Supreme Court Act 1970 s 66 CASES CITED: DATES OF HEARING: 04/10/2002 EX TEMPORE JUDGMENT DATE : 10/04/2002 APPLICANT Ms D Townsend (solicitor) SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENTS Ms A Pearman (barrister) SOLICITORS Clinch Neville Long JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40626 of 2002 Pain J 4 October 2002 PITTWATER COUNCIL Applicant v ROBERT ISAAC WALTERS First Respondent THE PALM BEACH WINE CO PTY LIMITED (ACN 087 313 308) Second Respondent Judgment on Notice of Motion 1. The Respondents have brought a Notice of Motion seeking orders that: 1. The first and second respondents be released from the undertakings of 9 September 2002. 2. Such further or other orders as the court may deem fit upon the grounds set forth in the affidavit of Robert Isaac Walters sworn on 4 October 2002. 2. The terms of the undertaking given on 9 September 2002 are as follows: The Respondent undertakes, without admission, [sic - that it] (a) Will seek an inspection and advice from Trevor Howse & Associates as to the works, if any, that may be required to make the rear section comply with the Fire Safety Provisions of the BCA and provide that report within 21 days. (b) Carry out such works as recommended by Trevor Howse & Associates provided the Council approves those works. (c) Until the works of fire safety recommended by Trevor Howse & Associates and approved by the Council have been carried out the Respondent further undertakes not to allow the Public to have access to the front section of the building marked on Exhibit "A" to the Application herein. (d) To indemnify the Council for any injury suffered by any person as a consequence of the non-compliance of the stairs to Iluka Rd with the requirements of the BCA. 3. I have considered the matter in that short adjournment and it seems to me that I should not make an order either suspending, or varying, the undertaking. 4. Under s 66 of the Supreme Court Act 1970, which applies in this Court, it is usually necessary for an Applicant to show some material change in circumstance in order to justify the release of an undertaking. 5. It was put to me that there has been such a material change in relation to the Respondent, but it does not appear to me that that is the case. It is certainly the case on the evidence of the Respondent (the Applicant on this motion), that the undertaking has been complied with to the extent that the report has been prepared by Trevor Howse and Associates, and relevant work has apparently been undertaken. But it is also the case that the Council has not approved that work as the undertaking clearly contemplated. 6. I also note this is an interlocutory matter, and I am unable to assess whether the scope of the undertaking given by the Respondent, namely the need for Council approval, is warranted or not, although there was a suggestion from Ms Pearman that may be an issue. I am in the position that I have to take the undertaking at its face value. 7. Given the nature of the issues between the parties relating to fire safety and in relation to a building which is accessed by the public, I do not think it appropriate that I vary the undertaking in the absence of Council approval. Given the timing of the report of Trevor Howse and Associates to the Council I do not think it can be said the Council is particularly delayed in responding. 8. I note the Respondent is continuing to trade from the rear of the premises, albeit in less than ideal circumstances. 9. I am not prepared to grant the application to the Respondent. I am prepared to make an order in relation to whether the Council should respond by a certain date in relation to the Trevor Howse and Associates report. Would you wish such an order to be made? PEARMAN: Yes, your Honour. HER HONOUR: And do you have a proposal as to a date? PEARMAN: We'd like Council to respond as soon as possible, your Honour, so perhaps Tuesday 4pm. TOWNSEND: Your Honour, I was going to suggest 5pm Tuesday. HER HONOUR: Ms Townsend, you said 5pm, I think, earlier. Ms Pearman, I think I'll make it 5pm Tuesday 8 October then. PEARMAN: Your Honour, just to point out to the Court that the Applicant on the motion here has not been trading this week. HER HONOUR: I understood what you told me was that there was access to the public available. PEARMAN: There had been access to the public available until a door was closed off, that work was done this week, and as a result of that the Applicant on the motion has not been trading this week. HER HONOUR: That's not going to vary my order. I must say I understood the public could still get in to the back door, albeit not ideal, and they have to go down a passage that eventually led to the shop. That's not the case? PEARMAN: It hasn't been the case to date. I mean there is a sign on the front of the shop stating that the shop is closed for the time being, and it was the Applicant's hope that any decision today would allow the Applicant to trade from the front of the building. HER HONOUR: That's not going to vary my order. But that's, I'm afraid, just not my understanding from earlier submissions as to what the position in relation to trading is. I'm not going to vary the undertaking based on that advice. I am ordering that the Council provide a written response. What sort of terms do you want? TOWNSEND: I'm happy to do that, your Honour. HER HONOUR: A written response in relation to the Trevor Howse and Associates report by 5 pm on 8 October. Orders 10. The Court orders that: 1. The Respondent's Notice of Motion is dismissed. 2. The Applicant is to provide a written response in relation to the Trevor Howse & Associates' report to the Respondent by 5 pm on 8 October 2002. 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.