Land and Environment Court New South Wales Medium Neutral Citation: McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 69 Hearing dates: 16, 17 May 2013 Decision date: 17 May 2013 Jurisdiction: Class 4 Before: Pain J Decision: 1. Interlocutory injunction application refused. 2. Costs reserved. 3. Matter stood over before list judge for case management on 31 May 2013. Catchwords: INJUNCTIONS - interlocutory injunction sought to prevent demolition of clubhouse - no serious question to be tried - balance of convenience does not favour grant of injunction Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A, s 101, s 123 Cases Cited: Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 Liverpool Plains Shire Council v Vella [2013] NSWLEC 54 Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127 Category: Interlocutory applications Parties: Mr J McNeill (Applicant) Avalon Surf Life Saving Club (First Respondent) Pittwater Council (Second Respondent) Representation: Mr J McNeill (in person) Ms C Hopton (club president - First Respondent) Ms D Townsend (solicitor) (Second Respondent) King & Wood Mallesons (Second Respondent) File Number(s): 40349 of 2013 EX TEMPORE Judgment 1Mr McNeill has commenced, by summons, Class 4 proceedings filed in this Court on 15 May 2013. The matter was heard briefly yesterday before me and I stood it over to today for further hearing. The matter before me today is Mr McNeill's application for an interlocutory injunction in the terms of the summons which seeks to stop the demolition of the Avalon Beach Surf Life Saving Club (the clubhouse) in Barrenjoey Road, Avalon Beach. Pittwater Council (the Council) granted consent for development of the clubhouse in DA 693/10 on 20 June 2011. Mr McNeill represented himself. Ms Hopton, the club president appeared on behalf of the club. The Council was represented by its solicitor, Ms Townsend. 2The exhibits tendered by Mr McNeill are exhibit A, which included a single page showing pictures of the old and proposed clubhouses, notice of determination of development consent of DA 693/10 and an email from Ms Hanna of the Heritage Branch of the Office of Environment and Heritage, to Mr McNeill stating his nomination of the clubhouse would be submitted to the Heritage Council meeting on 5 June 2012; exhibit B, a copy of the Avalon Beach Draft Plan of Management (December 2012); exhibit C, extracts from Pittwater Development Control Plan Number 21; and exhibit D, a DA referrals and notification checklist of the Council dated 30 November 2010. 3The Council tendered exhibit 1, the development consent plans which run with consent DA 693/10; exhibit 2, an email chain of correspondence between Mr Munn Council officer and Mr O'Neill; exhibit 3, Council meeting minutes for a meeting held on 3 December 2012 at which the Council discussed to whom to award the building renovation contract, and at which Mr McNeill told the Court he was present. 4In addition, the Council filed in Court with leave and read three affidavits. The first affidavit is that of Mr Munn sworn 17 May 2013. Mr Munn is Manager Reserves, Recreation and Building Services at the Council. He sets out the processes followed by the Council in relation to the receipt and approval of DA 693/10 and refers to the requirement for notification of that DA. Annexure A to his affidavit identifies in the Council records that there was provision of notification signs displayed on site. He also attests at par 6 to 9 to the consequences to the Council of stopping works, and identifies the potential financial cost to the Council if an order stopping work is made today. He also attaches the construction certificate plans and the development consent plans. Mr Munn states that there is another proposal in relation to the same site to include a restaurant on the upper level of the clubhouse, which is pending before the Council. 5The affidavit of Ms Monique Tite, Council officer, of 17 May 2013 attests to conversations she had with Ms Hanna on 13 May 2013. She was rung by Ms Hanna to advise that the department had received an interim heritage order request in relation to the clubhouse. She also attests to a conversation later that day informing Ms Hanna about the receipt of a DA for the clubhouse and also to a conversation on 16 May 2013 where Ms Hanna expressed the view that that there was nothing of historical or heritage significance about the clubhouse, and advised that the matter is likely to be considered by the State Heritage Committee. I note that it is intended to be determined by that committee on 5 June 2013, according to the email from Ms Hanna to Mr McNeill, part of exhibit A. 6The affidavit of Ms Christine Hopton, president of the surf club, of 17 May 2013 was read. She attests that DA 693/10 was lodged with the Council in November 2010. Ms Hopton attests that she observed signs erected at both the main entrance to the clubhouse and around the swimming pool in the course of the processing of that DA, and that these signs were there for around six months. She identifies that the DA was approved by the Council on 9 June 2011 and that the Keystone Projects Group was engaged after a lengthy tender process to carry out the works. One of the reasons that company was chosen was because it could undertake to do the work within six months. 7The site is now a construction site and she attests that it is not possible to go onto the premises. Ms Hopton attests to the considerable disruption to the work of the surf club if there is disruption to the building program, which it is hoped will be completed in late September 2013. This would allow the beach patrol season to commence from the new clubhouse and allow the club to respond appropriately to emergency situations. She advises the surf club is currently operating out of shipping containers set up whilst the project proceeds and says there are great practical difficulties in operating in that way. She advises that Surf Life Saving New South Wales provides qualified paid lifeguards throughout the beach patrol season and their ability to carry out their work may be seriously compromised if they do not have adequate facilities by the time the season starts. 8Ms Hopton attests to the nature of the programs provided by the club which need the clubhouse to be in place in order for those to be run, such as an extensive nippers program and other community uses of the building. She states the surf club is a not for profit organisation, is largely self-funded and currently has no income as the clubhouse is not able to be hired out. There would be a financial burden on the club if there is delay in relation to completion of the works. 9Turning to the bases for the application by Mr McNeill, Mr McNeill provided an affidavit dated 15 May 2013 which sets out grounds he wishes to rely on in this application for an interlocutory injunction, essentially to restrain the building work which he says includes demolition of the clubhouse. In summary the major point appears to be that he wishes an interlocutory order be made on the basis that the surf club's plans are to demolish the existing clubhouse but the DA for the development consent 693/10 states that it is for alterations and additions to the existing clubhouse, café and water harvesting tanks. Mr McNeill considers that the work that is being carried out is demolition, not alterations. He also raises the point that no DA signs were posted on the site as part of the advertising process. He has made an application for listing of the building on the State Heritage Register and this is to be determined on 5 June 2013. 10He also sought to raise issues related to the Avalon Beach Draft Plan of Management, but as I am unable to understand how that relates in any way to his application today, I am putting that matter to one side as no legal issue has been identified in relation to it. 11Mr McNeill submitted that the public interest of the loss of an iconic building through demolition rather than renovation suggests that the order should be made. His affidavit also raises additional matters related to car parking and building footprint, but I consider these are largely merit matters and they can play no role in consideration of the matter today. 12In relation to the requirements that Mr McNeill must satisfy in an application for an interlocutory injunction, he needs to identify a legal or non-merit issue as these are civil enforcement proceedings and I need to determine whether or not there is a serious question to be tried in relation to that issue. If there is such an issue I have then to determine whether the balance of convenience favours the grant of the interlocutory injunction and that generally includes consideration of whether an undertaking as to damages ought be required. 13There are numerous cases in the Court where these well known principles have been identified, recently Liverpool Plains Shire Council v Vella [2013] NSWLEC 54, and Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127. I do not need to spend further time on those authorities at the moment, but note that I was also referred to the seminal authority of Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 by Ms Townsend for the Council, and I was particularly taken to pages 154 and 155. 14Mr McNeill's case appears to be that the surf club is breaching conditions of the development consent in relation to the work currently being undertaken at the clubhouse, and he maintains that what is occurring is demolition not renovation. I understand, although it has not been specifically identified, that the basis for his application is a failure to comply with the development consent conditions and this gives rise to a potential breach of s 76A of the Environmental Planning and Assessment Act 1979 (the EPA Act). Mr McNeill comes to the Court pursuant to s 123 of the EPA Act to restrain that breach. A relevant issue having been identified in this matter, I must now consider whether there is a serious question to be tried. 15It will become clear that I adopt and accept Ms Townsend's submissions and consequently I do not consider there is a serious question to be tried. There is simply no evidence before me that there is any breach of the development consent which has otherwise been granted by the Council to the surf club to undertake the work as identified in the written conditions and the development consent plans for DA 693/10. Mr McNeill has asserted from the bar table that in his view there is demolition occurring. That is not good enough to establish any breach of those conditions. 16Ms Townsend, in her submissions, went through in some detail the development consent plans (exhibit 1) identifying that parts of the building are to remain and some parts are to be altered including demolition of identified walls. As Ms Townsend submitted, it is a renovation and it would be surprising if the building did not look different afterwards. While Mr McNeill relied on the photographs on the first page of exhibit A, showing the old clubhouse and the proposed new clubhouse, there is no doubt there will be a different building after the renovations have been completed. The fact that there is a difference does not support a finding that there is to be total demolition and does not give rise to any suggestion that the development consent conditions are not being complied with. 17I further note, as Ms Townsend advised, that there was a s 101 notice given by the Council on 24 June 2011, and at this stage any challenge to the development consent conditions for that consent is out of time as s 101 limits the challenge in this Court to three months. 18In relation to the allegation of failure to erect adequate signage or any signage, the affidavit of Ms Hopton at par 2 attests to her seeing signs at two locations over a six month period in the course of the DA process. Mr Munn's affidavit at par 4 also refers to a record from the Council, annexure A, which identifies that there was signage notification of the proposed development. In the absence of any evidence from Mr McNeill, apart from submissions from the bar table that he says there was no signage, I accept that evidence and consider there was signage in accordance with Council's notification policy. I find that there is no serious question to be tried. 19It is strictly unnecessary, therefore, that I consider the balance of convenience. In the interest of thoroughness I will refer to some of the matters to which Ms Townsend referred in relation to this aspect of the matter. In relation to the impacts of such an order identified in the Council's affidavits, in the terms of Ms Hopton's affidavit in particular, I consider any delay would substantially impact the surf club's operations. That impact would not only be on the club itself but on the public more broadly in terms of the provision of adequate and safe life saving measures. It is important that these be in place for the commencement of the beach patrol season in September this year. I also note there would be financial implications for the club, which is non-profit and receives no income during the renovation of the building. I also note the Council would be financially out of pocket if there were much delay in the building works proceeding. 20In relation to heritage significance, there is simply no evidence before me, apart from Mr McNeill telling me that in his view there is significant heritage potential in the clubhouse, to suggest any likelihood of success in the State Heritage listing application that he has made. The evidence of conversations with Ms Hanna referred to by Ms Tite suggests it is unlikely that the application will be successful. I do not consider that heritage significance is a relevant consideration. 21Another relevant factor is also raised by Ms Townsend and that is the delay in commencing these proceedings. Mr McNeill tells me quite candidly he was present at the Council meeting on 3 December 2012. He has brought these proceedings with no notice to the Council whatsoever, as I understand it, before serving them with the summons. Mr McNeill has told me from the bar table he told a councillor personally a couple of weeks ago, but there seems to be no formal written notice otherwise to the Council. There has been no opportunity for the Council to discuss any of the issues raised by him before the matter was commenced in Court. I consider there was delay in commencing these proceedings. No undertaking as to damages has been proffered by Mr McNeill. The balance of convenience does not favour the making of an interlocutory injunction. 22I do not make the interlocutory injunction sought by Mr McNeill and his application is refused. Orders 23The Court makes the following orders: 1. Interlocutory injunction application refused. 2. Costs reserved. 3. Matter stood over before list judge for case management on 31 May 2013. 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: 24 May 2013