Land and Environment Court of New South Wales CITATION : Henderson v Hickling (No 2) [2010] NSWLEC 214 FIRST APPLICANT Barry Henderson SECOND APPLICANT Heather Henderson PARTIES : FIRST RESPONDENT Martin Hickling SECOND RESPONDENT Jane Hickling FILE NUMBER(S) : 40840 of 2010 CORAM: Pepper J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- application to temporarily halt construction of fence and removal of hedge - serious question to be tried - balance of convenience favoured granting relief - interlocutory injunction granted CASES CITED: Henderson v Hickling [2010] NSWLEC 213 DATES OF HEARING: 15 October 2010 EX TEMPORE JUDGMENT DATE : 15 October 2010 APPLICANTS Mr G McKee (solicitor) SOLICITORS McKee Solicitors LEGAL REPRESENTATIVES: RESPONDENTS Mr S Kondilios (solicitor) SOLICITORS Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 15 October 2010 40840 of 2010 Barry & Heather Henderson v Martin & Jane Hickling (No 2) EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: I refer to the ex tempore judgment delivered by me earlier today (Henderson v Hickling [2010] NSWLEC 213 or "the first Henderson decision) and the legal principles and authorities referred to therein. 2 The parties appeared before me again at 3.00 pm. The purpose of the appearance was for Mr and Mrs Henderson to seek an extension of the interim ex parte injunction granted by me earlier in the day until midday Monday, 18 October 2010. This is to allow Mr and Mrs Henderson sufficient time to obtain evidence so that an application for more permanent relief can be made. 3 On this occasion, Mr and Mrs Hickling appeared and were represented. Contentions of the Parties 4 Mr McKee, the solicitor appearing for Mr and Mrs Henderson, submitted that the plans - which he has now seen for the first time - forming part of the development approval were ambiguous insofar as they did not appear to approve the construction of, first, a lapped and capped paling fence in the particular area where the lilly pilli hedge exists, and second, approval to remove the hedge in order for the fence to be built. 5 Notwithstanding that the plans had noted on them the words "EXIST 1800H L & C PALING 9.18 FENCE" in close proximity to where the lilly pilli hedge currently exists, Mr McKee submitted that these words were in fact depicted on the plan at a location different to the location of the proposed new fence and hedge removal the subject of the current dispute. 6 Moreover, what was not apparent from the plans was whether approval had been given for a lapped and capped paling fence rather than the replacement of the existing chain mail fence. 7 Mr McKee further stated that the development proposal notified to Mr and Mrs Henderson did not identify the change to the nature of the fence, and therefore, Mr and Mrs Henderson did not object to this aspect of the proposed development at the time. Now that they are aware of it, they do. 8 Mr McKee does not have any of the notification documentation available to put before the Court. It is this particular material which he wishes to be given the opportunity of obtaining thereby necessitating the extension of the injunction. 9 In response, Mr and Mrs Hickling submit that the plans the subject of the development consent granted by the council clearly indicate that a new lapped and capped paling fence is to be built where the hedge is located. A fence of this nature is necessary because it is a pool fence which must comply with specified construction standards. A chain mail fence, which can easily be climbed by children, is non-compliant in this regard. Further, Mr and Mrs Hickling submit that a fence of this nature will provide privacy to them while they use their pool area. 10 Mr and Mrs Hickling also submit that because of the cascading nature of the construction works in progress, until the issue of the construction of the fence and removal of the hedge is resolved other aspects of the construction work cannot proceed. Accordingly, they resist any extension of the injunction. Consideration 11 In the first Henderson decision I set out the legal principles to be applied for a successful grant of an interlocutory injunction (at [6]). In short, there must be, first, a serious question to be tried, and second, the balance of convenience must favour the grant of the interlocutory injunction. 12 Absent adequate evidence from Mr and Mrs Henderson that they were not properly notified of the change in the nature of the fence or that the hedge would be removed, it is difficult for me to ascertain whether or not this itself gives rise to a serious question to be tried. Mr McKee states that he had not, until the matter came before the Court today, seen any of the plans the subject of the development approval. Mr McKee states that therefore further time is required in order to gather the necessary evidence to support his client's contentions and to take instructions on the material that he has only now been furnished with. 13 I am prepared to give Mr and Mrs Henderson the benefit of any doubt and the further time they require. It follows that I accept that the alleged absence of approval to construct the fence and to remove the lilly pilli hedge, the alleged ambiguity on the plans as to the location and nature of the fence and the alleged failure to notify Mr and Mrs Henderson of the change in the nature of the new fence, all give rise to serious questions to be tried. 14 I also find that the balance of convenience favours the granting of the interim relief. I do so because, first, as Mr and Mrs Hickling have properly conceded, damages in this instant are an adequate remedy for any loss caused to them by the further cessation of the construction works and Mr and Mrs Henderson have continued to give the usual undertaking as to damages. Second, Mr Henderson has again agreed to provide the usual undertaking with respect to damages. Third, the lilly pilli hedge, Mr McKee informs the Court, is mature in nature. Once the hedge is removed it cannot easily be replaced. Fourth, the extension sought is brief, namely, until midday Monday, 18 October 2010. Again, Mr and Mrs Hickling readily concede that whilst some construction works would be undertaken on Saturday, none will be undertaken on Sunday, and thus, any disruption they will suffer will be relatively brief. 15 Therefore, having satisfied myself that there is a serious question to be tried and that the balance of convenience favours a brief continuation of the injunction, I am prepared to extend it in the manner sought. Orders 16 Accordingly, the Court makes the following orders: (1) the interim injunction granted in the first Henderson decision is extended to 12.00 pm, 18 October 2010; (2) the applicants are to file and serve a summons and notice of motion, together with any affidavit material upon which they may seek to rely by 10.00 am, 18 October 2010; and (3) the costs of today are reserved. ********** 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.