Land and Environment Court of New South Wales CITATION : BAULKHAM HILLS SHIRE COUNCIL v. ZOLTAN VARGA [1998] NSWLEC 146 (26 May 1998) [1998] NSWLEC 28 PARTIES : BAULKHAM HILLS SHIRE COUNCIL v. ZOLTAN VARGA [1998] NSWLEC 146 (26 May 1998) FILE NUMBER(S) : 40328 of 1997 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Local Government Act 1993: s124; 672-4 CASES CITED: DATES OF HEARING: 26 May 1998 DATE OF JUDGMENT: 05/26/1998 Mr B Preston, Barrister LEGAL REPRESENTATIVES: Mr A Ali, Agent JUDGMENT: In these class 4 proceedings the Council seeks declaratory and mandatory injunctive relief in respect of a partly constructed dwelling house on premises known as 24 Telford Road, Castle Hill, owned by the Respondent. There is a long history (including considerable litigation) between the parties involving various aspects of the partly constructed building on the subject premises, development consent and building approval having been originally granted to a structure in 1992. However by September 1994 when the adjoining neighbour raised complaint to the Council claiming that the building in course of construction did not comply with the approval, that is the building approval or the development consent, following investigations by the Council work on the project essentially came to an end on or about that time and so that state of affairs has continued for these past (nearly) four years. Although that is the present condition and immediate past condition of the subject land and the partly constructed building, in the intervening period there has been a welter of applications to the Council and appeals to this Court in respect of that structure and in respect of applications made by the Respondent to obtain further or modified approvals and consents. They have all hitherto failed. The matter came to a head in August 1995 when the Council issued a notice requiring the demolition of the partly built structure pursuant to section 124 the Local Government Act 1993. An appeal was taken against that decision to this Court. Ultimately on 24 December 1996 the Court dismissed the appeal and upheld the Council's order. A stay of some six months was granted for compliance with the order anticipating that other things might occur but in the event they did not and the order became effective after the expiry of that stay in the middle of last year. It is common ground that since the order was given by the Council in 1995 and confirmed by the Court at the end of 1996, no demolition work has been undertaken and that position is maintained today. However one further and significant development (or potentially significant development) is the lodgment with the Council on 27 November last year of a further development application prepared by Mr Ali, an architect retained by the Respondent. That development application has not yet been appraised by the Council because the Council has sought further information in support of the application and Mr Ali who appeared today on behalf of the Respondent as his authorised agent, has informed the Court that the additional material sought by the Council in its letter of 13 January 1998 (to enable the Council to properly appraise the current development application) should be lodged with the Council within the next fourteen days. It is in recognition of that fact together with the capacity of the current development application to yield a favourable result to the Respondent, which in turn would lead to the salvage of a significant part of the partly built structure being incorporated in any such approved structure, that the Council today has indicated its assent to any mandatory order granted as claimed being suspended for a reasonable period of time to enable that incomplete process to be completed. At this stage, and given the significant past history of this development of the subject site, the Council is not in a position to indicate the likely fate of the present development application, but it adopts a fair and open minded approach at least recognising the possibility that the present process might give rise to an approval along the lines I have foreshadowed. This certainly is Mr Ali's aspiration on behalf of the Respondent, and he has indicated a quiet confidence that the proposal that he has put to the Council (and will complete with the filing of the additional material in the next fortnight) is a fair result and is one upon which he believes a positive outcome in favour of his client is a distinct possibility. In truth, as was candidly put by Counsel for the Council, the Council's current proceedings in the Court are an understandable attempt to bring some finality to what has been a sustained and sorry saga for at least the past four or five years by effectively converting the administrative order given under section 124 of the Local Government Act 1993 by the Council initially (and confirmed by the Court in the proceedings I have mentioned) into a judicial order carrying the far greater and effective consequences for enforcement in the case of disobedience than does the Local Government Act in prescribing the consequences of non compliance with the administrative order. The claim that the Council now makes for declaration and mandatory order fall within the Court's jurisdiction conferred by sections 672 to 674 (incl.) of the Local Government Act 1993 and I am satisfied in the circumstances of this case that the Court ought exercise its statutory discretion in favour of the Council by granting the relief claimed. However as I earlier mentioned the relief so granted should be subject to a stay or a suspension of the mandatory order for a period of three months from today to enable the Respondent (through Mr Ali) to complete his submission on the pending development application for the subject site and give the Council adequate opportunity to appraise and determine that application. Liberty to apply will be reserved to each party on three day's notice. The purpose of granting such liberty is twofold, recognising the two possible outcomes of the present process with the pending development application. Firstly in the event of a decision refusing consent the Council may avail itself of the liberty if it considers the three month stay is too long a period for compliance (although I would be surprised if such view were formed given the long history of the matter). Secondly the Respondent may avail himself of the liberty if the result is favourable with the pending development application either in the sense that development consent is granted, in which case it would be appropriate for any mandatory order for demolition to be modified or indeed revoked, (whatever is appropriate, depending upon the circumstances of how much the partly erected structure is to be incorporated in the approved new structure) or in the event of that process not having been completed within the three months time, if the prospects for a favourable outcome for the Respondent are on the cards then again it would be possible for the parties or the Respondent in particular to approach the Court pursuant to the liberty to seek a more extended stay. The Council having been successful in the proceedings ought receive an order for costs in the conventional manner. Accordingly for all the forgoing reasons I make the following orders: 1. A declaration is made in accordance with paragraph 1 of the class 4 application. 2. A mandatory order in accordance with the order claimed in paragraph 2 of the class 4 application noting that the required demolition be undertaken within 28 days. 3. An order that the Respondent pay the Council's costs of the proceedings in the sum agreed or failing agreement as assessed. 4. Suspend the mandatory order made in Order 2 for a period of three months from today's date. 5. Grant liberty to each party to restore on three day's notice. 6. Exhibits remain on the Court papers. ----------OoO-------------- I HEREBY CERTIFY THAT THIS AND THE PRECEDING 5 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD. Associate 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.