Council of the City of Sydney v Lamb [2012] NSWLEC 175

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Sydney v Lamb [2012] NSWLEC 175 Hearing dates: 25 July 2012 Decision date: 25 July 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Injunction to restrain demolition of local heritage item wall until 3 pm next day. Proceedings listed for hearing at 2.30 pm next day. Directions as to filing and service of process and affidavits. Catchwords: INJUNCTIONS - whether urgent interlocutory injunction should be granted to restrain respondents from demolishing a local heritage item wall. Legislation Cited: Environmental Planning and Assessment Act 1979 s 121B Sydney Local Environmental Plan 2005 Schedule 9 Cases Cited: International Finance Co Ltd v NSW Crime Commission [2009] HCA 49, 240 CLR 319 Category: Interlocutory applications Parties: Council of the City of Sydney (Applicant) Graham Trevor Lamb (First Respondent) Sydney Combined Building and Maintenance Services Pty Ltd (Second Respondent) Representation: COUNSEL: Mr A Hawkes, solicitor (Applicant) Mr G Lamb, in person (First Respondent) N/A (Second Respondent) SOLICITORS: Council of the City of Sydney (Applicant) N/A (Respondents) File Number(s): 40758/12

EX TEMPORE Judgment 1This evening I am hearing an application by the Council of the City of Sydney for an urgent interlocutory injunction to restrain the respondents from demolishing or altering a sandstone retaining wall at 95 Pyrmont Street, Pyrmont. The respondents are Graham Trevor Lamb and his contractor Sydney Combined Building and Maintenance Services Pty Ltd. 2Short notice has been given to the first respondent Mr Lamb who is present. I am informed by the Council that it left a text message on the phone of a person associated with the second respondent informing him of the hearing this evening, but otherwise it has not so far been possible to give notice of the proceedings to the second respondent. 3Because of the urgency of the matter, it has been brought before the Court this evening without an originating process having yet been filed or affidavits prepared and I have been prepared to receive factual information from the bar table from the Council's legal representative and Mr Lamb. I have been handed a draft summons and points of claim as well as proposed draft interlocutory orders. 4The Council claims that the sandstone retaining wall is an item of local heritage in Schedule 9 of the Sydney Local Environmental Plan 2005; demolition or removal of the sandstone wall is permissible with consent but no relevant consent has been obtained; demolition or removal of parts of the sandstone wall are being undertaken by the second respondent under the direction of Mr Lamb; today there was served on Mr Lamb an order pursuant to item 19(a) in the Table of s 121B of the Environmental Planning and Assessment Act 1979 dated 25 July 2012 requiring immediate cessation of the unlawful works; but the unlawful works have continued. 5It is in those circumstances that the matter comes before the Court urgently this evening. 6As I have indicated, the injunction that is being sought is ex parte against the second respondent and is on very short notice to Mr Lamb because of the urgency of the matter. 7Equitable practice in relation to interlocutory injunctions was described in International Finance Co Ltd v NSW Crime Commission [2009] HCA 49, 240 CLR 319 at [149] - [150] per Heydon J as follows (omitting most citations): 149. There is a general rule of practice that no injunction will be granted ex parte unless it takes one of two forms. One form of injunction is that granted for a very short period within which notice is given to the defendant of its existence, so that the defendant may oppose any extension of it beyond that very short period. The second form of injunction is that granted until further order, but with liberty for the defendant to make a speedy application for it to be set aside. The former type of order is usually regarded as the more desirable. But our equitable practice knows nothing of an ex parte injunction granted until trial without liberty to apply for speedy dissolution. 150. Another instructive aspect of equitable practice is afforded in relation to the question of whether an ex parte injunction should be granted at all. It was summarised thus by Lord Hoffmann, delivering the opinion of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd: Although the matter is in the end one for the discretion of the judge, audi [alteram] partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act...Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none. 8I am satisfied that there is an arguable cause of action and that the balance of convenience favours the grant of an injunction for a very short period until 3 pm tomorrow within which notice is given to the second respondent of its existence and the first respondent has further opportunity to consider the matter. The respondents may, of course, oppose any extension of the injunction beyond that very short period if they wish to do so. The proceedings will be listed before me at 2.30 pm tomorrow. I will direct the Council within that time to file and serve an originating summons, points of claim and affidavits. 9The orders of the Court are in accordance with the document entitled "Orders" dated 25 July 2012, which I sign and place with the papers. 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: 26 July 2012