Council of the City of Sydney v Galanis [2012] NSWLEC 263

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Sydney v Galanis [2012] NSWLEC 263 Hearing dates: 29 October 2012 Decision date: 29 October 2012 Jurisdiction: Class 4 Before: Pain J Decision: See par 20 - 21 below Catchwords: CIVIL ENFORCEMENT - ex parte hearing - failure to comply with s 121B order under the Environmental Planning and Assessment Act 1979 - public safety risk - declaration and orders made - costs awarded Legislation Cited: Environmental Planning and Assessment Act 1979 s 121, s 121B, s 121ZJ Cases Cited: Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333 Council of the City of Sydney v JV Selection Holding Pty Ltd [2012] NSWLEC 230 Idoport Pty Limited v National Australia Bank Limited NSWSC [2007] NSWSC 23 Category: Principal judgment Parties: Council of the City of Sydney (Applicant) Michael Galanis (Respondent) Representation: Mr A Hawkes (solicitor) (Applicant) No appearance (Respondent) City of Sydney Council, Legal and Governance Department (Applicant) File Number(s): 40802 of 2012

EX TEMPORE Judgment 1Before me is an amended summons filed in Court on 7 September 2012 in which the Council of the City of Sydney (the Council) seeks declaratory relief, namely that the Respondent Mr Galanis has failed to comply with the terms of an order dated 9 May 2012 concerning premises at 405 Riley Street, Surry Hills. The order was served on him by the Council pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (the EPA Act). I have already determined the application should proceed ex parte. 2In support of the declaration and consequential orders requiring work to be done there is evidence provided through the affidavit of Mr Kerr dated 28 September 2012. Mr Kerr is a building surveyor with the Council and he identifies the nature of his duties which includes considering whether particular buildings in the Council's area have building hazards. He has read the Expert Witness Code of Conduct in providing his evidence and is aware of its contents. He attests in his affidavit to the inspection of the relevant premises and his forming the view that an order was necessary given the nature of the parapet façade the subject of the order. He attests to the giving of the Notice of Intention to Give an Order as required by the EPA Act on 12 April 2011. He attests to the order being sent to the Mr Galanis on 9 May 2012. He attests to the fact that there was no appeal made against the order. 3Mr Kerr also attests to the fact that on 23 May 2012 the Mr Galanis came to the Sydney Town Hall and met with Mr Kerr and another and indicated he did intend to carry out the works. However on a later date in June Mr Galanis advised Mr Kerr that he was not intending to do the work. 4Mr Kerr has conducted a number of inspections which confirm that the decorative parapet façade, the subject of the order, does pose a risk to the public given the possibility of it falling onto the public street below and that the work has not been carried out. He carried out inspections on 2 July 2012, 11 July 2012 and 6 August 2012. Mr Galanis did go again to the Sydney Town Hall on 26 September 2012 when he was told that the matter was in Court and there was a mention pending on 5 October 2012. He was asked then if he intended to carry out the work. He at that stage said that he did but he was unwilling to sign consent orders. Mr Kerr further attests that to date no work has been carried out at the premises and that he is concerned the situation is dangerous given that occupants of neighbouring properties and pedestrians are at risk if the parapet façade falls onto the street in the event that these orders are not complied with. 5The affidavit of Mr Hawkes, solicitor for the Council, dated 24 October 2012 was also relied on. In particular he sets out the documents which have been sent to Mr Galanis and identifies the terms of the orders and declarations which the Council is seeking today, which are more extensive than those identified in the original summons. He also provides the schedule of time spent and costs by the Council's legal representatives for which recovery of costs is also sought today. 6It is very clear from the evidence, particularly of Mr Kerr, that the order in question has not been complied with and that there is a public safety risk posed as a result. It is therefore appropriate that I make the declaration sought in Court today by Mr Hawkes that the "Respondent has failed to comply with the terms of an Order issued pursuant to items 4(a)-(b) of the Table to s 121B of the Environmental Planning and Assessment Act 1979 ("the Act") dated 9 May 2012 ("the Section 121B Order") relating to premises at 405 Riley Street, Surry Hills ("the Premises")". 7Turning to the consequential orders and whether these should be made, it is important that the work be undertaken given the public safety risk posed by the work not having been undertaken. In the orders handed up this morning the first order sought is that the Respondent undertake the work specified in the s 121B order dated 9 May 2012. I consider it is appropriate to make the order requiring that specific work itemised in (a) to (d) be carried out within 60 days from the date of this Court order, which is today. 8The Council also wants the opportunity to enter onto the premises and undertake the work if it is not undertaken by Mr Galanis. Order 2 therefore states, "The Applicant by its nominated officers, contractors and agents shall be entitled to enter the premises between the hours of 7AM and 6PM Monday to Friday from the date first entered under these Orders and the Applicant shall be entitled to enter the subject Premises until the Order is complied with to the Applicant's satisfaction." In the circumstances it is appropriate for that order to be made. 9It is also appropriate to make order 3 which would read, "If the works specified in Order No 1 have not been completed in their totality within 60 days of the date of these Orders then the Applicant is ordered pursuant to s 121ZJ(11) of the Act, to execute its functions under s 121ZJ by carrying out the work which is required to be carried out by the Section 121B Order." 10I will make both those orders in order to give effect to the orders in the event that Mr Galanis is not able to undertake the work or chooses not to. 11The Council also seeks an order that the Respondent is to pay its associated costs and expenses of carrying out these orders pursuant to s 121ZJ of the Act. Under order 5 the Council is to give the local Police three days' written notice of its intention to enter the premises in accordance with these orders for the purpose of carrying out the works. 12Order 6 specifies "The Respondent, by himself and by his servants and agents, is restrained from doing any act which might interfere with or impede the entry by the Applicant [being the Council], its servants, contractors and agents, on the premises and then remaining on the premises pursuant to these orders and which might interfere with or impede compliance with these orders". 13Given the necessity of having the s 121B order complied with and the more than adequate opportunity Mr Galanis has had to comply with it, it is appropriate that I make all those consequential orders. 14The further matter relates to costs. In particular the Council wishes me to make a fixed costs order and to that end provided written submissions which helpfully set out the relevant principles as to when it is appropriate to consider a specific costs order. In particular I am referred to the principles identified by Einstein J in Idoport Pty Limited v National Australia Bank Limited NSWSC [2007] NSWSC 23 at [9]. I will not read them out but they are itemised very appropriately in the Council's written submissions at par 4(i) to (vii) and I adopt these for the purpose of this ex tempore judgment. 15I accept that the amount of any gross sum to be awarded should reflect a view of the successful party's costs by reference to the pleadings and complexities of the issues raised in the pleadings, any interlocutory processes and any necessary preparation for final hearing. To that end I note that Mr Hawkes has provided a list of time spent and costs by the council's solicitors. 16I also note that the work has clearly been done for the purpose of this matter and accords with a chronology provided by Mr Hawkes at folio 2 attached to his submissions which identifies by reference to the evidence before me what happened when. That is reflected in the schedule of costs provided which identifies the nature of the solicitor's work undertaken in this matter. 17Where a solicitor is working as in-house counsel or a solicitor in a government body there are numerous cases where it has been recognised that it is appropriate that costs be awarded. In Mr Hawkes' submissions he refers particularly to Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333 at [17], in particular the decision of Davies AJ and I refer also to [21] in that regard. I am aware that numerous orders of this kind have been made in this Court, most recently by Sheahan J in Council of the City of Sydney v JV Selection Holding Pty Ltd [2012] NSWLEC 230. 18It appears to me based on what is before me that the amount sought by the Council does represent a fair and reasonable amount for the work required to bring this matter before the Court. It is appropriate in the interests of saving further costs and expenses that I make that order. I also order the Respondent to pay the Council's costs fixed by the Court at $5,747.70. 19A further order is sought in relation to the payment of the Council's costs and expenses of carrying out the orders. Order 8 says, "The Applicant has liberty to re-list the matter on 48 hours' notice, including for the Court to consider specifying in due course the amount in Order No 4". I consider it is appropriate to make that order also.