Land and Environment Court New South Wales Medium Neutral Citation: Walker v Siasat [2013] NSWLEC 123 Hearing dates: 29 July 2013 Decision date: 29 July 2013 Jurisdiction: Class 4 Before: Pepper J Decision: The Court orders: (1) that the first and second respondents, their servants and agents, are hereby restrained until further order of the Court from carrying out any building works or any other works on the land at 1 Seaview Street, Kiama, in reliance on development consent no 10.2012.222.1 granted on 17 December 2012, by the third respondent; (2) that the matter be listed before the Court on 13 August 2013 for mediation before a Commissioner; (3) that the costs of the notice of motion be reserved; (4) that the Court notes the undertaking as to damages given by the applicant; (5) that the directions hearing on 9 August 2013 before the Court be vacated; and (6) liberty to restore on 48 hours' notice. Catchwords: DECLARATIONS AND INJUNCTIONS: injunction to halt construction work on residential dwelling - construction alleged to impact on views of neighbour - whether a serious question to be tried - whether balance of convenience favours granting of injunction - injunction granted - mediation ordered. Legislation Cited: Kiama Development Control Plan 2012 Cases Cited: Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 Category: Interlocutory applications Parties: Mr Stephen Walker (Applicant) Mr Frederick Siasat (First Respondent) Ms Tennielle Siasat (Second Respondent) Kiama Municipal Council (Third Respondent) Representation: Mr T Cork (Solicitor) (Applicant) Mr M McMahon (Solicitor) (First and Second Respondents) N/A (Third Respondent) McPhee Kelshaw (Applicant) M E McMahon & Associates (First and Second Respondents) N/A (Third Respondent) File Number(s): 40225 of 2013 Ex Tempore Judgment Mr Walker Applies for Injunctive Relief to Protect His View 1This is a notice of motion filed on behalf of the applicant, Mr Stephen Walker, for injunctive relief in respect of a development occurring next door to a property he owns at 3 Seaview Street, Kiama, that is to say, a development being undertaken at 1 Seaview Street, Kiama. 2The development consists of a sizeable extension to a residential dwelling presently in the form of a wooden cottage. The construction is taking place pursuant to development consent no 10.2012.222.1 ("the consent") granted by the third respondent, Kiama Municipal Council ("the council"), to the first and second respondents, Mr Frederick and Mrs Tennielle Siasat ("the Siasats") on 17 December 2012. 3The injunctive relief is sought on the basis of allegations contained in an amended summons to the effect that the council has failed to consider certain mandatory relevant considerations with respect to the impact on Mr Walker's view occasioned by the development. 4In particular, Mr Walker alleges that, pursuant to the Kiama Development Control Plan 2012 ("the DCP"), the council was obliged, in granting development consent to the Siasats, to consider and assess the impact of the development on his views and has failed to do so. In the circumstances, Mr Walker therefore alleges that the consent granted by the council is invalid and ought to be declared as such. 5The council was not present at the hearing of the motion, the matter having been mentioned on its behalf by Mr Walker. Evidence of the Parties 6Mr Walker has relied on a number of affidavits in support of his application. First, two affidavits by his instructing solicitor, Mr Trevor Cork, sworn on 26 July 2013 and 19 April 2013. Second, an expert report of Mr Neil Kennan, consultant town planner, dated 8 July 2013, and, third, a bundle of materials comprising the council file relating to the consent granted in respect of the development. 7Relevantly, the expert evidence of Mr Kennan notes that in his opinion the impact of the proposed development on Mr Walker's view will be severe. 8The council's file showed that some consideration had been give to the amenity impact of the proposed development on Mr Walker's views, but, according to Mr Walker, this consideration was inadequate and marked by a failure to analyse the loss of views pursuant to the criteria contained in the DCP. 9The affidavits of Mr Cork, demonstrated that correspondence had passed between Mr Walker and the Siasats in an attempt to resolve the matter, but to no avail. 10Both Mr and Mrs Siasat filed affidavits suggesting, in the case of Mr Siasat, that trees that have since been removed would have impeded Mr Walker's view prior to the construction occurring in any event; and, in the case of Mrs Siasat, that a complying development certificate had been issued in respect of part of the development but that the construction was being undertaken by Mr Siasat as an owner/builder pursuant to the consent. 11Initially the application was opposed by the Siasats. However, at the conclusion of the evidence and upon it becoming clear that Mr Walker was prepared to give the usual undertaking as to damages, they withdrew their opposition to the application for injunctive relief. Interim Injunctive Relief is Appropriate 12This course was sensible given that there was, in the Court's opinion, a serious issue to be tried insofar as Mr Walker has an arguable case that the council failed to consider the mandatory matters it was obliged to take into account in assessing the impact of the development on his views under the DCP (Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [7]). 13Furthermore, in my view, the balance of convenience, on the material before the Court, favoured the granting of the injunctive relief (Tegra at [13] ff). Although damages and a demolition order may be an adequate remedy it is far preferable to maintain the status quo by enforcing a temporary halt to the development at this early stage. 14Therefore, on the basis of the evidence before me and noting the Siasats' consent to the granting of the interim relief sought, it was appropriate to grant the interlocutory injunction. Mediation 15Finally, the Court was of the view that, given that substantial costs were likely to be incurred by all parties in any final hearing of these proceedings, it was appropriate that the matter be mediated, particularly as, at its core, it concerns a dispute between two neighbours. 16Mr Walker and the Siasats agreed to this course. Orders 17Therefore, the Court orders: (1)that the first and second respondents, their servants and agents, are hereby restrained until further order of the Court from carrying out any building works or any other works on the land at 1 Seaview Street, Kiama, in reliance on development consent no 10.2012.222.1 granted on 17 December 2012, by the third respondent; (2)that the matter be listed before the Court on 13 August 2013 for mediation before a Commissioner; (3)that the costs of the notice of motion be reserved; (4)that the Court notes the undertaking as to damages given by the applicant; (5)that the directions hearing before the Court on 9 August 2013 be vacated; and (6)liberty to restore on 48 hours' notice. ********** 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: 30 July 2013