Lane Cove Council v Ross [2012] NSWLEC 153

Land and Environment Court New South Wales

Medium Neutral Citation: Lane Cove Council v Ross [2012] NSWLEC 153 Hearing dates: 6 July 2012 Decision date: 06 July 2012 Jurisdiction: Class 4 Before: Craig J Decision: Orders as set out at [13] Catchwords: INTERLOCUTORY ORDERS - building work in breach of development consent - substituted service of application - prima facie case of breach - undertaking as to damages given - interlocutory injunction granted Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Interlocutory applications Parties: Lane Cove Council (Applicant) Raymond Ross (Respondent) Representation: COUNSEL S Griffiths (Solicitor) (Applicant) No appearance (Respondent) SOLICITORS Pikes & Verekers Lawyers (Applicant) No appearance (Respondent) File Number(s): 40628 of 2012

ex tempore Judgment 1By a summons filed on 28 June 2012, Lane Cove Council commenced proceedings in this Court in which it sought declarations and orders, the effect of which are directed to building work carried out on premises known as 8 Bayview Street, Northwood (the premises). That work is said to have been carried out in contravention of a development consent. The Council seeks to restrain further work that does not comply with that consent. 2The Council also seeks interlocutory relief to restrain, until further order, the carrying out of building work to the second floor of those premises. The building work on that floor, according to the evidence presently available, reflects the work that is readily identified as being in breach of the relevant development consent. 3The consent in question was granted by the Council on 2 April 2008. It authorised alterations and additions to the premises. It was a consent granted to Mr R Ross, the named respondent in these proceedings. That consent required that any work carried out in accordance with its terms "be strictly in accordance with drawings numbers 1 to 9 (inclusive) dated 27 February 2008 by Cheap - A - Plans." The reference to "Cheap" seems to be a reference to the drafter of the plans. 4I have been provided with a copy of the plans identified in that consent, together with some sketches superimposed on those plans, indicating the extent to which building work has been carried out that does not appear to accord with those plans. In particular, the evidence suggests that, at the second floor level, the building slab has been extended beyond that shown for it on the plans and that there is located on that slab either partially constructed walls or a number of pallets of bricks indicating that the work carried out and to be carried out will not accord with the approved plans. 5Some indication of the location of the intended brickwork is demonstrated by lines located on the slab on which bricks are standing, suggesting that they are the location of walls to be constructed. In short, neither the slab nor the brickwork lines appear to accord with the approved plans for the premises. 6When the matter came before the Court today, the respondent, Mr Ross did not appear. The evidence before me indicates that personal service of the Council's summons and supporting affidavit has not been effected in accordance with the rules. That is unfortunate. However, the evidence does reveal that there has been communication in the last two weeks between the Council, its solicitors and Mr Ross. In correspondence, Mr Ross has indicated a post office box number to which correspondence could be addressed. Letters addressed to that post office box number have not been answered, albeit that letters were written to him informing him of these proceedings and providing copies of both the summons and supporting material. In earlier correspondence with the Council, Mr Ross had provided an email address through which communication with him was successful. Documents have been sent to that email address also advising of the current proceedings and attaching copies of the Court's process and supporting affidavits. 7Most recently, namely on 4 July 2012, a Mr Dharmawan came to the Council's offices, advising that he was from an organisation known as H & D Studio Design and indicating that he had been engaged by Mr Ross in relation to 8 Bayview Street, Northwood. In a conversation that Mr Dharmawan had with a Council officer, the former was reported to have said that not only had he been engaged by Mr Ross, but that Mr Ross had a summons from the Council and wished to understand the Council's requirements for making a s 96 modification application. That evidence suggests to me that Mr Ross is likely to be aware of these proceedings or at least that there is now a mechanism by which he can be made aware of the proceedings. 8The evidence to which I have earlier referred in relation to the work being undertaken in respect of the premises suggests that the carrying out of further unlawful building work is likely. The evidence before me also suggests that if work is carried out in the manner in which it is anticipated to be done, then not only will it fail to accord with the development consent but that the unlawful work, if that is what it ultimately proves to be, will have an impact upon adjoining properties. That was not an impact assessed when development consent was granted. 9It is that circumstance, coupled with the apparent breach of the law by carrying out the building work in disconformity with the plans, that identifies to me the need to grant interlocutory relief. Clearly, that interlocutory relief needs to be restricted in time so as to ensure that Mr Ross has the opportunity to present a case to the Court, justifying what it is that is being done at the premises. I therefore propose to make an interlocutory order restraining further work. 10The question that must also be addressed is the means by which the terms of this order can be brought to his attention. It would appear that the efforts made thus far to bring these proceedings to the attention of Mr Ross have been successful, at least indirectly, although it seems that Mr Ross is not readily to be found in order to effect personal service. 11The Council's solicitors have suggested a means by which both the originating process, the supporting affidavits and a copy of these orders should come to the attention of Mr Ross. In substance, they suggest that all relevant documents be drawn to his attention by the following means. First, the provision of all documents in a clear plastic envelope should be attached to the premises in some prominent location. Second, they suggest that documents be posted to the post office box number which Mr Ross had given in correspondence with the Council and its solicitors. Third, they propose that all documents, including these orders, be sent to the email address that had been used previously and successfully in communicating with Mr Ross. Those means of bringing these orders and the originating process to the attention of Mr Ross would seem to be appropriate. 12On the material before me a prima facie case for a breach of the law, namely s 76A of the Environmental Planning and Assessment Act 1979, is made out. The balance of convenience, a matter relevant to be considered when contemplating the grant of interlocutory relief, would also seem to favour the grant of relief. In this regard I record that the Council, through its solicitor, has offered to the Court the usual undertaking as to damages for the purpose of obtaining the interlocutory order that it seeks. 13For these reasons I make the following orders: 1.Upon the applicant by its solicitor, giving the usual undertaking as to damages the respondent by himself, his servants and agents is ordered to refrain from laying any bricks or otherwise carrying out any building work at the second floor level of the premises located at and known as 8 Bayview Street, Northwood until further order. 2.A sealed copy of the summons, the affidavit of Adrian Llewellyn Moore sworn 28 June 2012 and a sealed copy of these orders must be placed in a clear plastic envelope and affixed to a prominent position at the front of the dwelling at the premises at 8 Bayview Street, Northwood. 3.A sealed copy of these orders must be posted by ordinary pre-paid post addressed to the respondent at PO Box 944 Lane Cove NSW 2066. 4.A copy of these orders as sealed must be emailed to the respondent at the address rossconsulting@optusnet.com.au. 5.The summons, affidavit and these orders are taken to have been served on the respondent upon compliance with orders 2, 3 and 4 being proved. 6.Liberty to apply on 2 business days' notice. 7.Stand over the proceedings to the Duty Judge at 10:00am on Thursday 12 July 2012.