Profilio v Lodestar Holdings Pty Ltd [2010] NSWLEC 236

Land and Environment Court of New South Wales

CITATION : Profilio v Lodestar Holdings Pty Ltd [2010] NSWLEC 236

APPLICANT Robert Profilio

FIRST RESPONDENT Lodestar Holdings Pty Ltd PARTIES : SECOND RESPONDENT Eoin Michael O'Neill

THIRD RESPONDENT Randwick City Council

FILE NUMBER(S) : 40919 of 2010

CORAM: Craig J

KEY ISSUES: PRACTICE AND PROCEDURE :- expedition of proceedings

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 17 November 2010

EX TEMPORE JUDGMENT DATE : 17 November 2010

APPLICANT N M Eastman (Barrister) SOLICITORS D G Briggs & Associates

FIRST AND SECOND RESPONDENT LEGAL REPRESENTATIVES: P R Clay (Barrister) SOLICITORS Back Schwartz Vaughan

THIRD RESPONDENT T A Hunt (Solicitor) SOLICITORS Shaw Reynolds Bowen & Gerathy

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

CRAIG J

17 November 2010

40919 of 2010 PROFILIO v LODESTAR HOLDINGS PTY LTD

EX TEMPORE JUDGMENT 1 HIS HONOUR: By summons filed on 12 November 2010, Robert Profilio seeks declaratory and injunctive relief, alleging breaches of the Environmental Planning and Assessment Act 1979 (the Act). The principal breaches are said to have been caused by the first respondent, Lodestar Holdings Pty Ltd (Lodestar), but a director of that company, Mr Eoin Michael O'Neill, has been joined as a second respondent for the purpose of seeking an order against him of a mandatory nature. Randwick Council has also been joined because it is claimed that a complying development certificate issued by the Council is invalid. 2 At the time of filing his summons, Mr Profilio also filed a notice of motion seeking interlocutory relief in the form of a mandatory injunction directed to the first and second respondents. It is that notice of motion that was listed before me today. 3 When the matter was called for hearing, the parties indicated that to avoid an interlocutory hearing, they proposed that the matter be expedited. They handed to the Court draft short minutes of order proposing the hearing of the matter extending into the first week of the forthcoming law vacation. I indicated that I was not prepared, in the circumstances, to fix the matter for that week but was prepared to indicate, subject to availability, that the matter may be heard during the last week of term. It has now been ascertained that the available dates to the Court for hearing in the last week of term are three days commencing on 14 December 2010. 4 In effect, I have determined that the hearing of the matter be expedited. I should briefly state why that has been done. 5 Mr Profilio is one of the registered proprietors of land known as 295 Alison Road, Coogee (Number 295). Lodestar is the registered proprietor of land at 297 Alison Road, Coogee (Number 297). The land in this locality falls generally from west to east, with the consequence that the ground level at Number 295 is higher than that at Number 297. 6 Significant building works have been undertaken at Number 297. Those works have been described in the evidence thus far filed on behalf of Mr Profilio as "bulk earthworks," which include excavation extending to the common boundary with Number 295. In an endeavour to retain the land and soil on Number 295, consequent upon that excavation, a retaining wall comprising second hand hardwood railway sleepers has been constructed. This retaining wall ranges in height from 400 mm at the rear to a height of about 1400 mm along the remainder of its length. Vertical posts intended to provide stability for the wall are located at approximately 1200 mm centres, with those posts imbedded to a depth of between 650 mm and 800 mm in holes that are filled with pre-mixed low strength concrete. A treated pine fence, measuring between 1.8 and 2.1 metres in height above the ground level at Number 295, is attached to the vertical posts of the hardwood sleeper retaining wall. 7 Since completion of the retaining wall and fence, Mr Profilio says that some subsidence of the ground on Number 295 has occurred. As a consequence he has sought structural engineering advice. The affidavit evidence obtained by Mr Profilio to date from three structural engineers is to the effect that the retaining wall that has been constructed is structurally unsound and is unable to withstand the loads imposed upon it by the retained soil, particularly when account is taken of the affect of the fence erected above it. 8 According to the summary of that evidence contained in a submission by Mr Eastman, who appeared on behalf of Mr Profilio, the engineering evidence indicates that failure of the wall is almost inevitable but no time can be indicated as to when that failure might occur. In short, it could occur tomorrow or in a number of years. The possibility of the wall collapsing and the consequence which would befall the two properties in question as well as any persons who might be present should collapse occur seem to me to justify the expedition of this matter for hearing. 9 While Mr Profilio has acted with a degree of alacrity in commencing these proceedings, it is not presently clear why it is that the proceedings were not sooner commenced. Nonetheless, it has been amply demonstrated that the danger of collapse of the wall is present and that danger needs to be addressed. Whether the wall has been erected in breach of the Act and whether it suffers the structural problems for it that are claimed by Mr Profilio, requires prompt adjudication by the Court. In the event that breach is found, orders (if any) must be formulated with a view to remedying the breach. Accordingly, I propose to order that the hearing of the proceedings be expedited. 10 The parties have brought in short minutes of directions and orders that they seek for the purpose of having the matter fixed for hearing. The terms of those short minutes are agreed among the parties and identify the steps necessary to be taken, and the time within which those steps are to be taken, in order to ensure that the matter is properly prepared for a hearing to commence on 14 December next. Clearly enough, if judgment in the matter is required promptly, it will be necessary for the parties strictly to adhere to the time table fixed by those directions. Only if that is done and the hearing is conducted efficiently will the opportunity be afforded to the judge hearing the matter possibly to give judgment soon after the hearing concludes. 11 The orders I make therefore are these: 1. Expedition granted. 2. Orders and directions in accordance with the short minutes of order signed by the parties, initialled by me and placed with the papers.