Hooper v Port Stephens Council [2009] NSWLEC 234

Land and Environment Court of New South Wales

CITATION : Hooper v Port Stephens Council [2009] NSWLEC 234

APPLICANT Stephen Hooper PARTIES : RESPONDENT Port Stephens Council

FILE NUMBER(S) : 40991 of 2009

CORAM: Pepper J

KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- no serious question to be tried - balance of convenience against granting of injunction

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Port Stephens Local Environmental Plan 2000 Port Stephens Council Development Control Plan 2007

CASES CITED: Tegra (NSW) Pty Limited v Gundagai Shire Council [2007] NSWLEC 806

DATES OF HEARING: 18 December 2009

EX TEMPORE JUDGMENT DATE : 18 December 2009

APPLICANT Mr Stephen Hooper (in person) SOLICITORS LEGAL REPRESENTATIVES: N/A

RESPONDENT N/A

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

18 December 2009

40991 of 2009 Stephen Hooper v Port Stephens Council

EX TEMPORE JUDGMENT

Introduction 1 HER HONOUR: Before me is an ex parte application brought by Mr Stephen James Hooper who requests the following relief from the Court: 1. That Port Stephens Council stay the issue of a construction certificate to development approval granted 15/12/09 for 25 Gloncester Street, Nelson Bay, until the current development application can be reviewed by the Land and Environment Court. 2 In support of the application Mr Hooper relies on an affidavit sworn by him on 16 December 2009. The affidavit attaches various documents including: an advice from Port Stephens Council ("the council") concerning the development application in respect of a property located at 25 Gloucester Street, Nelson Bay, described as lot 2 DP 758370 ("the Property"); a letter of objection to the application; a supplementary report from the council in respect of the application and Mr Hooper's response to that report. 3 Also attached were brief extracts of the Port Stephens Local Environmental Plan 2000 ("the LEP") and an extract from the Port Stephens Council Development Control Plan 2007 ("the DCP"), together with a planning certificate issued by the council to the proponent, Mr Hallett, on 22 August 2008. 4 The development concerns the building of a three-storey house and the demolition of the existing dwelling on the Property. The development application was approved by the council on 15 December 2009. 5 Mr Hooper is partially affected by the development insofar as he will lose some of his ocean view. However, Mr Hooper says that he is bringing the application for injunctive relief primarily on behalf of his neighbour who, Mr Hooper says, will lose most of his ocean view and on behalf of the community in order to preserve the existing character of the residential location and, in particular, the amenity of the street. Finally, Mr Hooper states that he is bringing the application in order to protect the environment generally from the development. The Application is Ex Parte 6 While the proceedings are ex parte to the extent that only Mr Hooper appears before me today, the council has nevertheless been informed of the application and is aware that it is proceeding today. Its failure to appear may in part be explained by the short notice given of the application, the location of the council and the lack of suitable available legal representation given that it is the last day of the 2009 law term. 7 Mr Hallett, who Mr Hooper informs the Court is the owner of the Property upon which the development is to be erected has not, however, been notified of today's application. This is a significant matter to which I will return. 8 The application as it is currently framed does not clearly state whether or not the injunctive relief is sought permanently or temporarily. In any event, I am not inclined to grant either a permanent or temporary injunction. This is because the criteria necessary for the relief to be granted have not been met. Principles for Grant of Injunctive Relief 9 The grant of an interlocutory injunction depends on an applicant showing that there is a serious question to be tried and that the balance of convenience favours its grant. Serious Question to be Tried 10 Turning to the first limb, a serious question to be tried is an essential condition to obtaining interlocutory injunctive relief. Mr Hooper must identify the legal (which may include statutory) or equitable rights which are to be determined at a future trial and in respect of which final relief will ultimately be sought. The Court does not have jurisdiction to grant interlocutory relief where there is no legal, statutory or equitable rights that are determined (Tegra (NSW) Pty Limited v Gundagai Shire Council [2007] NSWLEC 806 at [7]). Mr Hooper has not, in my view, established that there is a serious question to be tried in relation to any alleged statutory breaches in the grant by the council of the development consent the subject of the application. 11 Mr Hooper relies on three possible legal grounds as a challenge to the granting of the development consent. Because no summons was filed along with the application for injunctive relief, these grounds were developed orally by Mr Hooper. 12 First, Mr Hooper submits that the council has breached cl 16.1 and 2(b) of the LEP. Clause 16.1 states: The residential "A" Zone is characterised by one and two storey houses and dual occupancy housing. Townhouses, flats and units up to two storeys may occur throughout the zone. Dwellings may also be erected on small lots in specially designated subdivision. Small scale commercial activity is compatible with a residential neighbourhood and a variety of community uses may also be present in the zone. 13 Clause 16.2 states (emphasis added): 16.2 Objectives of the zone