Land and Environment Court of New South Wales CITATION : Cook v Hofer [1989] NSWLEC 173 APPLICANT Cook PARTIES : RESPONDENT Hofer FILE NUMBER(S) : 40073 of 1989 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1919 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 03/30/1989 APPLICANT LEGAL REPRESENTATIVES: Mr. O'Brien JUDGMENT: Bignold J.: Earlier today I heard an urgent application for an interlocutory injunction to restrain the owner of property No. 17 Military Road, Watsons Bay "from removing the tree adjacent to the stone steps on 17 Military Road, Watsons Bay or (from) doing any other work which will undermine the stone steps on 17 Military Road, Watsons Bay". At the conclusion of the hearing I indicated to the parties that I proposed to adjourn the matter until later in the day in order that the Woollahra Municipal Council be given the opportunity to appear in the proceedings. I took this decision because the matter in issue appeared to me to be a matter that was governed by the Council's statutory functions under the Environmental Planning and Assessment Act 1979 and the Local Government Act 1919 and because it was unclear to me on the sketchy evidence presented, whether the building approval granted by the Council to the Respondent for the construction of a dwelling-house on the adjoining property No. 11 Military Road, also owned by the Respondent, sanctioned, either expressly or by implication the matter in dispute between the parties which immediately concerns site excavation works being undertaken for the approved dwelling-house. In order to preserve the situation during the short adjournment I granted an interim injunction. When the hearing was resumed later in the day Mr. O'Brien Solicitor for the Applicant gave additional affidavit evidence which established that he had written to the Council's Chief Building Inspector by facsimile earlier today advising of the nature of proceedings before the Court and notifying the Council that I had directed that Council be invited to consider whether it should participate in the hearing. Mr. O'Brien stated that at 3.15pm today (shortly before returning to Court) he spoke on the telephone to the Council's Chief Building Inspector and was advised that the latter was drafting a letter confirming that a development application was required before the steps could be demolished or changed and that "the Council was taking action in relation to the trees on the subject land". The matter in dispute though only of recent origins has generated quite a history, and in my opinion, the present application is to be understood against the background of that history. On 22nd March, 1989 I granted an exparte injunction on the application of the Applicant restraining the Respondent her servants and agents from carrying out excavations on the approved building site. I did so on the basis of the facts revealed in Mr. O'Brien's affidavit sworn the same day, although not without serious reservations that the cause of action asserted by the Applicant really was based upon his proprietary rights in a right-of-way (which includes the aforesaid steps) and accordingly this Court lacked the requisite jurisdiction. In granting the exparte injunction I adjourned the hearing to later that day to give the Respondent an opportunity to dispute any entitlement of the Applicant to interlocutory relief and to consider whether the injunction should be continued or dissolved. Later that day Mr. O'Brien informed my Associate that he was in the Supreme Court seeking relief from that Court in relation to the same matter and that he would not be further proceeding in this Court. Accordingly I instantly dissolved the injunction. On the same day Mr. Justice Bryson in the Supreme Court granted interlocutory relief including an injunction restraining the Respondent her servants and agents from removing or otherwise interfering with the aforesaid steps. Yesterday His Honour, after a further hearing, dissolved that interlocutory injunction. Today the Applicant claimed in this Court the aforesaid interlocutory relief. The Respondent was represented by its Solicitor who had been informed by Mr. O'Brien of the latter's intention to seek such an injunction from this Court. The basis for the present relief claimed is founded on the provisions of clause 19 of Woollahra Local Environmental Plan No. 27 which impose conservation controls on buildings and relics located in designated conservation areas. It is conceded that the Respondent's aforesaid properties are located in such a conservation area. The evidence relied upon by the Applicant to support its case is found in a report prepared for the Respondent by a Chartered Builder who carried out an inspection of the steps at No. 17 Military Road on 20th March, 1989. His written report includes the following:- "The external steps leading from the street level to the upper floor level of 17 Military Road, were inspected. It is understood that a right of way exists in the path of these steps. The steps appear to be concrete, or cement rendered brick, on filling between sandstone walls of random sized blocks. The flight consists of 16 risers. The southern wall to the flight of steps is bulging badly, by approximately 500-600mm, probably caused by the pressure of filling behind the wall, and under the steps. The bulging has caused the steps to sink to an out of level position. The site immediately adjacent to the flight of steps is being excavated. The excavation includes the removal of a tree some 10 metres high and having a 350mm diameter trunk, which is growing against the southern wall of the steps. Whilst the steps appear sound when walked on, it is considered that removal of the tree will result in the step wall becoming unstable, in that the bulging may cause it to collapse. Under such conditions, the steps could be considered dangerous." The Respondent relied upon certain paragraphs of her affidavit sworn and read in the aforesaid Supreme Court proceedings. It is apparent that she desires to proceed with the construction of the approved dwelling-house on property No. 11 and that she will suffer some financial damage if the construction process is delayed. The evidence though sketchy, indicates that the Council is fully apprised of the respective claims and interests of the parties to the present proceedings. I can only interpret the Council's lack of appearance in today's proceedings as indicating a lack of interest therein. Upon established principles for the granting or withholding of interlocutory injunctive relief I am of the opinion that such relief should, in all the circumstances of the present case, be denied. Although there can be no doubt of the Applicant's standing under s.123 of the Environmental Planning and Assessment Act 1979 to remedy a breach or the Act I nonetheless take account of the fact, as is powerfully attested by the litigation in this Court and the Supreme Court in the past 10 days, that the Applicant is really seeking to protect his interests in the aforesaid steps. To the extent that that interest is founded upon proprietary rights I also take account of the fact that the Supreme Court has now declined to protect by injunction that interest (no doubt leaving to damages any remedy to which that the Applicant can ultimately in that Court establish his entitlement). Though in the present proceedings the Applicant seeks to vindicate a public right in the enforcement of planning laws the peculiar benefit to him of success in such proceedings cannot be ignored, and is a factor relevant to the Court's discretion, a factor that is in my opinion, considerably strengthened in favour of the Respondent, by the lack of interest of the Council to participate in the proceedings. A further important factor is the relative strengths of the Applicant's and the Respondent's cases. I am not satisfied that the Applicant has demonstrated a clear or even arguable case of breach or apprehended breach of the Act. As his case has been presented it is that the removal of the tree (adjoining the steps), being an act which is not itself proscribed by relevant planning law, will involve an infringement of the prohibition against demolition of the steps contained in cl.19(a) of the aforesaid local environmental plan. Even applying to the construction of cl.19(a) the wide definition of "demolition" and recognising the general legal proposition that one cannot do indirectly what one is forbidden directly from doing I do not think the Applicant has established a case (even an arguable case) of breach of the Act. If I am wrong in this conclusion and it can fairly be said that the Applicant has presented at least an arguable case on a serious question to be tried I would, nonetheless, on discretionary grounds, decline the relief sought. The factors relevant to discretion are those I have already mentioned, namely the attempted vindication of the Applicant's private interest and the lack of interest in the proceedings by the Council, together with the fact that apparently the Council is "taking action in relation to the trees on the subject land" (paragraph 4 of Mr. O'Brien's affidavit sworn today). I should note here that the prohibition on demolition contained in cl.19(a) is not absolute. Demolition may be undertaken with the consent of the Council. On the question of the balance of convenience there was little material put to me. However on balance I consider that the Respondent, though protected by the indemnity offerred by the Applicant, would suffer more inconvenience in the delay necessarily sufferred in her attempt to implement the building approval to build the approved dwelling-house. It was for the foregoing reasons that I ordered that the interlocutory injunction granted earlier today be dissolved. Exhibits may be returned. The question of costs is reserved with liberty to apply on 3 days notice. 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.