Parramatta City Council v M E and B D Pty Limited (No 2) [2012] NSWLEC 74

Land and Environment Court New South Wales

Medium Neutral Citation: Parramatta City Council v M E and B D Pty Limited (No 2) [2012] NSWLEC 74 Hearing dates: 12 March 2012 Decision date: 12 March 2012 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [18] Catchwords: CIVIL ENFORCEMENT - failure to comply with s 121B order to remove unauthorised awning - breaches of statute established - remedies for breaches - deferment of remedial orders until receivers and managers were given opportunity to be heard - receivers and managers retired from acting - no discretionary grounds for refusing orders - order for removal of awning Legislation Cited: Environmental Planning and Assessment Act 1979 s 121B Cases Cited: Parramatta City Council v M E and B D Pty Limited [2012] NSWLEC 47 Category: Consequential orders Parties: Parramatta City Council (Applicant) M E and B D Pty Limited (Respondent) Representation: Mr Ian Hemmings (Barrister) (Applicant) Mr John Dagher (Respondent in person) Storey & Gough (Applicant) File Number(s): 40582 of 2011

EX TEMPORE Judgment 1On 17 February 2012, I found that the respondent company had breached the Environmental Planning and Assessment Act 1979 ("EPA Act") by first, failing to comply with an order under s 121B of the EPA Act requiring the removal of an illegally erected awning at 65 Kleins Road, Northmead and, secondly, erecting and using the awning without development consent: see Parramatta City Council v M E and B D Pty Limited [2012] NSWLEC 47. 2I deferred determining the appropriate orders to be made to remedy and restrain the breaches to allow an opportunity for the receivers and managers who had been appointed to the company and Mr Dagher, the sole director of the company, to be heard as to the relief that should be granted. The matter was adjourned to 13 March 2012 to allow the receivers and managers and Mr Dagher to advise the Court of the role they wish to play and the evidence they wish to call on the question of relief. This date was subsequently changed to today, 12 March 2012. 3In relation to the receivers and managers, by letter emailed on 9 March 2012 to the Court, and provided to the parties today, the solicitors for the receivers and managers advised that the receivers and managers had retired from acting and no longer had any role in relation to the company or its assets including the premises at Northmead. The receivers and managers therefore had no role to play in the proceedings and did not wish to be heard as to the relief that should be granted to remedy and restrain the company's breaches of the EPA Act. 4Neither Parramatta City Council nor Mr Dagher sought for the receivers and managers to be involved in the proceedings. 5In relation to Mr Dagher, he advised the Council and the Court that he would be prepared to remove the awning once he was able to re-enter the premises. He would not, therefore, be filing evidence opposing the Court ordering that the company remove the awning. 6Mr Dagher informed the Court that he had telephoned the former receivers and managers who had advised him that they would meet with him in the middle of this week, at which time he would sign certain papers and be provided with keys to be able to re-enter the premises. Mr Dagher said that once he is able to re-enter the premises, he would be able to remove his personal plant and equipment from underneath the awning and store it at a friend's rural property until he is able to recommence his business elsewhere. Mr Dagher said he would then arrange for the awning to be demolished. Mr Dagher said he would need a month from the time he was able to reenter the premises to undertake this work. 7In my view, it is appropriate for the Court to make an order that the company remove the unauthorised awning. There are no discretionary grounds for refusing such relief. 8I do not consider the delay in the Council seeking orders for the removal of the awning is a sufficient reason in the circumstances of this case to decline relief. It is true that the awning has been in place for at least 10 years. The original awning was erected around 1992 to 1995, but was rebuilt, altered or extended in 2002 to 2003. At neither time, however, was the structural safety of the awning checked. No development consent was obtained authorising the original erection or the rebuilding, alteration or extension. Subsequently, in 2005, a development consent was granted which had the potential to authorise the ongoing use of the rebuilt awning, but this consent was not taken up. The development consent required the company to obtain a building certificate for the rebuilt awning. The company applied for a building certificate. The Council requested information verifying the structural safety of the awning before it could issue a building certificate. The company never provided this information. The Council therefore refused the building certificate. 9Hence, although the rebuilt awning has been in existence for a considerable period of time, there is no evidence that it is structurally safe. 10The Council read affidavit evidence from Mr McDermott, a senior building surveyor with the Council, that the awning does not comply with a number of DeemedtoSatisfy provisions of the Building Code of Australia ("BCA") concerned with fire resistance. These BCA requirements are designed to minimise the spread of fire from adjoining properties to the awning over the auto electrical and mechanical repair business, and consequential damage to property and harm to persons. 11In addition, Mr McDermott said that the Council has not received any information to enable it to be satisfied that the awning complies with the BCA requirements concerning structural safety, including the referenced Australian Standards AS1170:2007 "Structural Design Actions" and AS3600:2001 "Concrete Structures". Compliance with these Australian Standards would indicate that the awning achieves the minimum acceptable standards of design and installation. Conversely, failure to satisfy these standards might result in failure of the structure leading to damage to property and harm to persons. 12Mr Dagher said he had requested an engineer to apply for a building certificate for the awning. However, he said that the engineer informed him that, after discussions with two council officers, he did not consider the Council would grant a building certificate and that therefore there was no point in incurring the cost of design and documentation necessary for making an application for a building certificate. Hence, Mr Dagher was not able to provide evidence addressing the Council's concerns as to the fire resistance and structural safety of the awning. In these circumstances, the awning should be removed. 13As I have noted, Mr Dagher did not in the end oppose this course of action. He simply asked for sufficient time to remove the awning. A period of six weeks from the date of the order should be sufficient to allow Mr Dagher to reenter the premises, remove his personal plant and equipment and arrange for the removal of the awning. If unforeseen circumstances occur which delay the taking of this action, the company can apply, pursuant to liberty granted by court order, to extend the time for compliance. 14The final question to be resolved is that of the costs of the proceedings. These proceedings are in Class 4 of the Court's jurisdiction where the usual costs order is that the unsuccessful party pay the successful party's costs. Here, the Council has been successful in establishing breaches of the EPA Act and obtaining the relief it sought in the summons of an order for the removal of the unauthorised awning. It ordinarily should be entitled to its costs. 15Mr Dagher submitted that the reason he did not comply with the s 121B order was that the company had been in financial difficulties, which were compounded once the signage at the premises advertising the business had been removed in compliance with the s 121B order. Mr Dagher said he was unable financially to comply. Furthermore, once receivers and managers were appointed to the company, Mr Dagher was effectively locked out of the premises and was unable to remove the awning. 16These circumstances explain why the company was delayed in complying, or unable to comply, with the s 121B order and the order sought in the summons. However, they do not provide sufficient grounds for departing from the usual order as to costs. 17The quantum of the costs can be negotiated and possibly agreed with the Council, having regard to the company's financial position. The appropriate order is that the company pay the Council's costs as agreed or, failing agreement, as assessed.