Land and Environment Court New South Wales Medium Neutral Citation: Hoxton Park Residents Action Group v Liverpool City Council (No 4) [2012] NSWLEC 67 Hearing dates: 29 March 2012 Decision date: 29 March 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Temporary stay granted of injunction restraining works to permit certain works to be carried out: see paragraph 13. Catchwords: INJUNCTION:- application for temporary stay of injunction restraining works consequential upon declaration that development consent is invalid, in order to permit certain works to be carried out said to be necessary to make buildings waterproof, structurally secure and secure against unauthorised entry. Legislation Cited: Uniform Civil Procedure Rules 2005 Pt 31 Div 2 Subdiv 5, r 31.52 Cases Cited: Hoxton Park Residents Action Group v Liverpool City Council (No 3) [2012] NSWLEC 43 Category: Principal judgment Parties: Hoxton Park Residents Action Group (Applicant) Australian Federation of Islamic Councils Inc (Second Respondent) Malek Fahd Islamic School Ltd (Third Respondent) Representation: COUNSEL: Mr J Ayling SC (Applicant) Mr L T Livingston (Second and Third Respondents) SOLICITORS: Penklis Lawyers (Applicant) Goldrick Farrell Mullan (Second and Third Respondents) File Number(s): 40178/10 EX TEMPORE Judgment 1Last Friday I published my judgment in this matter in which I made orders declaring that a development consent for a school and road was invalid, injuncting further works unless and until further development consent was granted, injuncting use as a school unless and until further development consent was granted, and staying the latter injunction for one year which would give the proponent an opportunity to lodge a new development application: Hoxton Park Residents Action Group v Liverpool City Council (No 3) [2012] NSWLEC 43. The proponent immediately applied for a stay of the works injunction for a period to enable the partly constructed buildings to be made watertight and secure. In order to give the applicant an opportunity to consider and obtain advice in relation to that application, I stood over the stay application to yesterday. I also granted a stay of the works injunction until and including yesterday. 2Yesterday, the proponent indicated that it was seeking a stay of the works injunction for a month in order to carry out works that it contended were necessary. They were, first, waterproofing works; secondly, works to make the building secure against unauthorised entry; and thirdly, works to make the building structurally secure. 3I proposed, and the parties agreed, that I should make an order for a court-appointed expert to report overnight to the Court on those three matters pursuant to Part 31 Division 2 Subdivision 5 of the Uniform Civil Procedure Rules 2005. I appointed Mr Phillip Martin, an experienced civil and structural engineer, as the court-appointed expert. Ancillary directions included a direction that Mr Martin lodge his report by noon today and that the application for a further stay of the works injunction be listed before me at 2 pm today. I also extended the stay of the works injunction until and including today. Rule 31.52 prohibits a party, except by leave of the Court, from adducing evidence of any expert on any issue arising in the proceedings if a court-appointed expert has been appointed in relation to that issue. In the result, the expert evidence is confined to the evidence of Mr Martin. 4Mr Martin has inspected the partly constructed building, furnished a report and been cross-examined. 5First, in relation to the waterproofing issue, Mr Martin concluded that the buildings do not need to be made waterproof or watertight if work is suspended for up to 12 months as little or no damage would occur except for the exposed roof insulation and the fire-rated plasterboard placed around the steel columns, which need protection from the weather. He said that the steelwork itself has only a nominal corrosion protection and rusting of the steelwork can be expected to commence in time with exposure to the elements. The elements of the building fabric which will deteriorate in the short term if left exposed to the weather are the roof insulation and plasterboard wrapping to the steel columns. The roof sheeting is complete and an insulation blanket has been placed beneath the roof sheeting. The insulation is exposed and not covered at some of the outside edges. The insulation will deteriorate in the short term if it is left exposed to the rain and wind. The exposed edges of the roofing need to be covered by completing the trim around the roof and completion of the erection of the gutters to contain the runoff of rain from the roof. The fire rating of the first floor steel columns has commenced with the columns being wrapped in fire-rated plasterboard. The plasterboard will deteriorate in the short term if it becomes wet. The plasterboard needs to be protected from the elements by wrapping in plastic and sealing the joints and edges of the plastic. 6Mr Martin was asked in cross-examination to accept that if certain other works were carried out (derived from paragraph 6 of an affidavit of the proponent's expert which was not itself read), they would effect waterproofing of the building. He agreed but did not deviate from his opinion that waterproofing was unnecessary provided the suspension of the works was for not more than 12 months. He accepted that in its present condition stormwater will not be effectively captured and discharged away from the building, but did not accept that that would create a real risk of damage to the ground floor slab system. 7I accept Mr Martin's view as to the above matters. I will, however, grant liberty to apply in the event that risks eventuate which he did not contemplate. 8Secondly, Mr Martin concluded that the building itself does not need to be secured as the fit-out of the interior has just commenced; however the perimeter needs to be secured to prevent unauthorised entry and security lighting should be installed. He said that air-conditioning fans that have been installed in the ceiling of the ground floor should be removed or protected to prevent theft. In cross-examination, he accepted that some of the works put to him in cross-examination (referred to at [6] above) could secure the building against unauthorised entry. However, in his view that is unnecessary because the elements in place are, as he put it, robust so as not to be easily damaged without some force. 9What most influences me to conclude that those further works are not necessary to secure the building against unauthorised entry is that the parties' agreed instructions provided to Mr Martin yesterday note that there are a range of security measures already in place. There is a perimeter chain-wire fence around the site on two sides, a metal Colorbond fence on one side and a palisade fence on one side. There are two sets of gates - one is chain-wire, the other is palisade. The gates are locked at approximately 4 pm each afternoon and re-opened in time for the commencement of works at approximately 7am. There is one school security guard on site from the time the school closes at approximately 3.30 pm until the site re-opens at approximately 7 am. The school security guard is at the moment based in the demountable buildings which are enclosed by a fence and he stays within this fenced area. However, these demountable buildings are in very close proximity to the buildings under construction and it seems to me that it would require little adaptation for that security guard's duties to extend to the security of the partly constructed buildings. The parties' agreed instructions to Mr Martin also record the lighting proximate to the buildings. Subject to the comments that I have made about adaptation of the security guard's duties, it seems to me that it is unnecessary to carry out further works proposed by the proponent to secure against unauthorised entry. 10Thirdly, Mr Martin concluded that the building is structurally secure in its present state. The proponent proposes wall bracing to the upper floor. In Mr Martin's view that is not necessary. He indicated that he was influenced in that conclusion by the fact that there is no provision in the design for temporary bracing before the roof is erected. 11I have concluded that I should authorise bracing to the walls of the upper storey shown on the plans. I am told that it is shown on the plans. In reaching that conclusion, I have taken into account, and tried to balance, the following matters. First, Mr Martin agreed that such bracing would eliminate such risk as there was. Secondly, he conceded that it was open to a structural engineer to reasonably hold a different view as to the extent of the risk of structural collapse absent such bracing. Thirdly, he disclosed that, under normal circumstances, before expressing a conclusion he would have undertaken manual checks to satisfy himself that the structure was not in danger of collapse without the bracing. It was the fact that he had to report in an extraordinarily limited timeframe that precluded him from carrying out the manual checks on this occasion. Fourthly, he acknowledged that if any risk of structural collapse were to eventuate because of the absence of the bracing, then that would pose a serious risk to public safety. Finally, he acknowledged that if such a risk of structural collapse were to eventuate, it would be extremely costly to fix and, doing the best he could when confronted with the question on the spot, he ventured that it may be of the order of $170,000. The applicant submits that if that risk and cost were to eventuate, they would be of the proponent's own making in the sense that it made a commercial risk to proceed at a time when it knew that the development consent was under challenge and even after the Court of Appeal had found that the development consent was invalid. Of course, the question of whether any relief should be granted still remained to be determined. There is some force in the applicant's submission. However, I do not consider it to be dispositive when all the factors are put into the mix. Weighing the various considerations, I have decided that the wall bracing to which I have referred should be authorised. 12Having discussed my conclusions with counsel, they have conferred and proposed orders in short minutes, which I consider to be acceptable. In addition, the applicant and the proponent respectively seek an order that the other pay the costs of the proponent's stay application. That application sought an indulgence, it was not made until after I had delivered judgment, and the stay to be granted is more limited than was sought. On balance, I consider that the proponent (the second and third respondents) should pay the applicant's costs of that application. 13The orders of the Court are as follows: 1.Order 2 made on 23 March 2012 is stayed until 5 pm on 19 April 2012 but solely for the purpose of allowing the second and third respondents to carry out the following work on the incomplete building on the site: (a)completion of the trim around the roof together with any additional works including brickwork as may be certified by Philip Martin as strictly necessary so as to prevent the exposure of the insulation blanket at the outside edges of the roofing as described in the Court expert's report exhibit "A" at paragraph 28; (b)completion of the erection of the gutters together with any additional works including brickwork as may be certified by Philip Martin as strictly necessary to contain the runoff of rain from the roof as described in the Court expert's report exhibit "A" at paragraph 28; (c)the wrapping of the fire-rated plasterboard with plastic and the sealing of the joints and edges of the plastic as described in the Court expert's report exhibit "A" at paragraph 29; (d)the removal of air-conditioning fan units erected in the ceiling of the ground floor; and (e)the installation of any bracing elements to the walls of the upper storey if shown on the current plans, including drawing No AZO1E by PMDL Architecture & Design, dated February 2011. 2.Liberty to apply on 48 hours' notice. 3.The second and third respondents are to pay the applicant's costs of their application for a stay of Order 2 made on 23 March 2012. 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: 03 April 2012