Land and Environment Court New South Wales Medium Neutral Citation: Sydney City Council v Samadi [2011] NSWLEC 241 Hearing dates: 9 December 2011 Decision date: 09 December 2011 Jurisdiction: Class 4 Before: Preston CJ Decision: See orders at [19] Catchwords: INTERLOCUTORY APPLICATION - injunction to restrain demolition of fire-damaged heritage buildings - threatened demolition without consent - threatened breach of statute - interim injunction granted Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A(1) Category: Interlocutory applications Parties: The Council of the City of Sydney (Applicant) Mr Nasser Samadi (Respondent) Representation: Ms A Pearman, Barrister (Applicant) No appearance for Respondent Paul Kapetas, Principal Lawyer, Council of the City of Sydney No appearance for Respondent File Number(s): 41164 of 2011 Judgment 1The Council of the City of Sydney ("the Council") has moved the Court ex parte for an interim injunction to restrain Mr Nasser Samadi from demolishing certain buildings at 533 and 535 Elizabeth Street, Surry Hills. The Council filed in Court a summons commencing Class 4 proceedings seeking a final order that Mr Samadi be restrained from undertaking any demolition works at 533 and 535 Elizabeth Street, Surry Hills until further order of the Court. 2The Council's action is based on an apprehended or threatened breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") in that the respondent threatens to carry out demolition of the buildings at 533 and 535 Elizabeth Street, Surry Hills without first obtaining development consent. The Council has moved ex parte, but not without notifying the respondent and his solicitors. There has been communication between the Council's solicitors and the respondent's solicitors by email over the last day and more recently telephone communications advising that the Council intended to move the Court for an interlocutory injunction restraining the respondent from demolishing the buildings. The respondent and the respondent's solicitors have declined to appear at the hearing of the application for interlocutory relief. 3The buildings in question are located in the Cleveland Gardens Conservation Area (Area CA13) listed under Schedule 2A of South Sydney Local Environmental Plan 1998 ("the LEP") and also within the Elizabeth Street Heritage Streetscape Area (Area HS5) under Schedule 2B of the LEP. 4Clause 23A(1)(a) of the LEP provides that: "(1) A person must not: (a) demolish or alter a building or work within a heritage conservation area or heritage streetscape area, or ... (g) make structural changes to the interior of a building or work within any such area, except with the consent of the consent authority." 5A person who demolishes, alters or makes structural changes to a building or work, contrary to cl 23A(1), commits a breach of s 76A(1) of the EPA Act. 6The Council is concerned that Mr Samadi, who is the owner of the buildings, proposes to demolish the buildings without first obtaining development consent. 7On the morning of Thursday 8 December 2011, fire damaged the two buildings. 8On 9 December 2011, the solicitors for the respondent sought for the Council to issue an order under s 121B of the EPA Act requiring Mr Samadi to demolish the buildings. The respondent's solicitors stated that a structural engineer had inspected the fire damaged buildings and advised that the foundation had been completely destroyed by the fire and had no structural integrity and that the remaining building elements could collapse at any time and are so unstable that they may even fall in a strong wind. The respondent's solicitors stated that the respondent was aware that the demolition of the remaining building elements may constitute development and it may be an offence to carry out such work unless they are the subject of an order or consent from the Council. In those circumstances, the respondent's solicitors sought for the Council to issue an order under s 121B requiring demolition of the buildings. 9The Council has not issued such an order. 10Later that day, the Council's solicitors notified the respondent's solicitors that they intended to seek an urgent injunction to prevent the respondent from demolishing the buildings unless the respondent gave an undertaking not to demolish the buildings. 11The respondent's solicitors replied to the Council, in an email at 6.45pm today, advising that, although they were of the view that demolition of the buildings without an appropriate order or consent may constitute an offence, the respondent nevertheless declined to give an undertaking that he will take no action in relation to the demolition of the remaining elements of the buildings unless the Council itself provided an undertaking that the Council would indemnify the respondent for any loss, damage or injury that results from the uncontrolled collapse of the remaining building elements. Since the Council was not prepared to give that indemnity, the respondent declined to give the undertaking not to demolish the remaining building elements. 12The Council's solicitor spoke this evening to the respondent who continues to express concern as to the structural integrity of the building as stated in the letter of 9 December 2011. The Council submits that this adds to the concern that the respondent may determine to take action to demolish the buildings. 13In these circumstances, the Council submits that there is an apprehension or threat that the respondent may go ahead and demolish the buildings without an order or development consent. 14I find that there is a serious question to be tried that there is an apprehended or threatened breach by the respondent of s 76A(1) of the EPA Act by reason of the apprehension or threat that the respondent might demolish the buildings which are located in a heritage conservation area and heritage streetscape area, contrary to cl 23A(1) of the LEP. 15The balance of convenience favours granting an interim injunction. The buildings are in a heritage conservation area and heritage streetscape area. Their demolition without prior consent would be an actual breach of the LEP and the EPA Act and undermine the objects of the LEP and the Act, and also impoverish the heritage values of those areas. 16The Council called oral evidence from Mr Gilmour, the Manager of Building Compliance at the Council and a qualified engineer. Mr Gilmour visited the buildings this afternoon about 3.25pm. In summary, his opinion is that the fire damage to the buildings has not affected materially the masonry structure of the buildings or the roofs and the buildings pose no immediate danger to life or property in the vicinity if they are not demolished. 17The Council gives the usual undertaking for damages. 18For these reasons, I propose to grant an interim injunction to 5.00pm on Monday 12 December 2011 and list the matter for a hearing before the Duty Judge at 10.00am as to whether to grant an interlocutory injunction. The respondent will have the opportunity to be heard at this hearing. 19The Court orders, on the applicant giving the usual undertaking for damages: 1.The respondent, its servants, agents and contractors, are restrained from demolishing or altering the buildings or works, or making structural changes to the interior of the buildings or works, at 533 and 535 Elizabeth Street, Surry Hills, until 5.00pm on 12 December 2011. 2.The matter is listed before the Duty Judge at 10.00am on 12 December 2011 for the application for an interlocutory injunction to continue to restrain the respondent from such demolition, alteration or structural change to the buildings and works at 533 and 535 Elizabeth Street, Surry Hills. 3.The applicant is to serve a copy of these orders on the respondent by email to the respondent's solicitors and notify the respondent's solicitors by telephone of the orders made by 12.00am on 9 December 2011. 4.The question of costs is 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. Decision last updated: 13 December 2011