Land and Environment Court of New South Wales CITATION : Kosciusko Alpine Club Limited v National Parks and Wildlife Service [1988] NSWLEC 122 APPLICANT Kosciusko Alpine Club Limited FIRST RESPONDENT National Parks and Wildlife Service PARTIES : SECOND RESPONDENT Coroboree Lodge Pty. Ltd FILE NUMBER(S) : 40054 of 1988 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 21/03/1988, 22/04/1988 DATE OF JUDGMENT: 06/01/1988 LEGAL REPRESENTATIVES: JUDGMENT: Bignold J.: This is an amended Notice of Motion in which the 2nd Respondent seeks a partial release from an undertaking it gave to the Court on 22nd April, 1988 when class 4 proceedings were concluded in this Court. In those proceedings the Applicant sought declarations and injunctions in respect of an approval granted by the 1st Respondent to the 2nd Respondent for the construction of a Ski Lodge building complex on land being lot 198 Deposited Plan 44461 situate at Perisher Valley in the Kosciusko National Park. On 21st March, 1988 after a contested hearing His Honour Hemmings J. granted an interlocutory injunction restraining the erection of buildings on the said land. At that date building work on the aforesaid lodge building had been undertaken and was in course of construction. Footings had been constructed and the steel frame of the proposed building had been partially constructed. The final hearing of the class 4 application came before His Honour on 19th, 20th, 21st and 22nd April, 1988. On 22nd April, 1988 in the course of the hearing it was conceded by the Respondents that as a consequence of there being no effective delegation the approval granted by the 1st Respondent for the ski lodge building complex was invalid. After an adjournment the parties handed up to His Honour short minutes and His Honour made the orders set out in Appendix "A" annexed hereto. It appears that before His Honour made the aforesaid orders there was some discussion in Court as to what should happen to the partly erected structure on the subject land. The discussion apparently involved the question of the public safety of the structure and the building site. It appears that His Honour indicated that he expected the parties might be able to reach agreement on what works might be necessary. However he reserved liberty to bring the matter before him as a matter of urgency if the parties could not reach agreement. (Unfortunately there is no transcript of the proceedings before His Honour). On 24th May, 1988 the Architect acting for the 2nd Respondent submitted details of structural works to the Applicant and the 1st Respondent in order to obtain an engineer's structural adequacy certificate and to make the structure safe for winter 1988. The Applicant's Architect responded on 25th May, 1988 advising that he considered the proposed work "constituted a continuation of the construction against the orders of the Court". He also advised that the Applicant regarded the steel structures as a safety hazard for skiers during the coming winter season and advised that it had asked the 1st Respondent to require the dismantling of the structure and its removal from the site. On 27th May, 1988 the 1st Respondent wrote to the 2nd Respondent's Architect requiring specified works to be completed on site prior to 6th June, 1988. The present Notice of Motion (which was filed yesterday and notice of which was given to the Applicant the day earlier) is brought before me urgently because of the onset of the winter season and the consequent difficulty of undertaking any building work. Unfortunately His Honour Hemmings J. is on leave and was not available to determine the Notice of Motion. The Notice of Motion seeks a partial release from the aforesaid Undertaking to enable the 2nd Respondent to undertake the works specified by the 1st Respondent in its aforesaid letter of 27th May, 1988. Although it is conceded that many of the works so required by the 1st Respondent to be undertaken do not fall within the scope of the undertaking the 2nd Respondent (with the support of the 1st Respondent) has very sensibly sought a release of the Undertaking to enable it to undertake all the works required by the 1st Respondent. It is common ground among all the parties that the steel structure in its present state constitutes a public danger by reason of its instability and (although this matter is indispute) by reason of its mere existence. The 2nd Respondent (supported by the 1st Respondent) claims that the public danger will be eliminated and the status quo so far as the ultimate fate of the proposed ski lodge building will be maintained if the Court releases the 2nd Respondent from its undertaking to enable it to execute the works required by the 1st Respondent. I am satisfied that those works are all exclusively directed to the question of rendering the structure and the building site safe. The Applicant opposes the Motion on 2 grounds. Firstly it claims that public safety is best secured by the dismantling of the steel structure and its removal from the site. In this respect it relies on evidence of a building contractor that such works could be immediately undertaken at an estimated cost of some $12,000. It also relies upon the opinions of its architect Mr. Sheldon, a Director of the Applicant, that the proposed temporary safety fence may not, under severe snow conditions, constitute a satisfactory barrier to unsuspecting skiers and may also operate to camouflage the steel structure and thereby create a risk of injury. Although there is little evidence on this question I am prepared to infer that the requirements of the 1st Respondent which is statutorily vested with the care, control and management of the National Park have been formulated with the safety of the public clearly in mind and that the requirements will adequately address the safety needs of the public. I would expect the 1st Respondent to responsibly monitor the effectiveness of the safety fences as part of its on going care, control and management function. If additional safety precautions are called for I have no doubt that the 1st Respondent will take appropriate and responsible action to secure public safety. The second ground for the Applicant's opposition is based upon the history of this litigation (and in particular His Honour Hemmings J's decisions to grant interlocutory relief (21st March, 1988) and to refuse to vary it (31st March, 1988)) and the proposition that the Court should not be seen to be sanctioning by a 'back-door' method the carrying out of work which is illegal. I am unable to accept this submission. I find the nature of the works to the existing structure to be very minor works indeed, involving principally the bolting of some existing steel members of the building frame and the temporary bracing of some of those elements. I do not think it can realistically be claimed that these minor works constitute a continuation of the building work. They are simply designed to render structurally safe the partial structures which now exist and are, in some respects, unsafe. I do not consider that the carrying out of the works as required by the 1st Respondent will have the effect of fettering or prejudicing the proper exercise of discretion by the 1st Respondent in respect of any fresh application for approval of the ski lodge building complex. The possibility of such approval being granted is doubtless the reason for the 2nd Respondent desiring to maintain the status quo in relation to the existing partial structure. That status quo, would not, in my opinion be materially affected by the carrying out of the required safety works. Nor do I accept the proposition that the Court by partially releasing the 2nd Respondent from its undertaking will, either, in effect or in appearance be sanctioning illegal building works. In my opinion the works so sanctioned, would be no more than a responsible, ancillary and necessary response to the consequences of the Orders made by His Honour on 22nd April, 1988 concluding the class 4 proceedings. Those consequences, it will be recalled, included a partial structure the construction of which was abruptly terminated by the granting of the interlocutory injunction on 21st March, 1988. Those Orders did not extend to the granting of mandatory relief in respect of the existing partial structure. Even assuming that the question of the fate of that structure was left open by the Court's order reserving liberty to apply, I must say that, in my opinion, it would have been more appropriate for the Applicant to have sought the Court to deal with that question on that occasion. I say this because, though it is open to the Applicant on the hearing of this Motion to suggest that public safety is best achieved by the total dismantling and removal of the partial structure, I am not in these proceedings considering any question of mandatory relief sought by the Applicant. Although the parties have proceeded on the assumption (ex abundantia cautela) that the safety fences required by the 1st Respondent to be erected on the subject site fall within the terms of the Undertaking my own view is that the undertaking (read in the context of the particular declarations made and the litigation generally) does not extend to the proposed safety fences. (I was informed that the impugned approval did not apply to such fences). Notwithstanding my own views I am content to adopt the parties' common approach. Without finally deciding the question I am not prepared to accept the Applicant's submission that the temporary safety fences would be illegal structures. As at present advised I would accept the submission advanced by Counsel for the 1st Respondent that the requirements of the 1st Respondent to make the structure and building site safe derive from and are authorized by the statutory powers of care, control and management vested in the 1st Respondent. Moreover having regard to the temporary nature and limited purpose of the safety fences I would not, as at present advised, be prepared to accept the Applicant's argument that construction of such structures would be "likely to significantly affect the environment" within the meaning of that phrase in Part V of the Environmental Planning and Assessment Act 1979. For the foregoing reasons I reject the Applicant's opposition to the relief sought in the amended Notice of Motion and I order that the 2nd Respondent be released from its undertaking given to the Court on 22nd April, 1988 but only so as to enable it to execute the works being items 1 to 11 (inclusive) specified by the National Parks and Wildlife Service in its letter dated 27th May, 1988 to Phil McMaster, Architects, (a copy thereof is annexed hereto marked "B"). 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.