Land and Environment Court New South Wales Medium Neutral Citation: Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 124 Hearing dates: 1 August 2013 Decision date: 01 August 2013 Jurisdiction: Class 1 Before: Biscoe J Decision: Consent interlocutory injunction granted and other orders made: see [8] Catchwords: INJUNCTIONS - motion for interlocutory injunction to restrain council from taking action on a stop work order - motion resolved by consent. Category: Interlocutory applications Parties: Bocce Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: COUNSEL: H Irish (Applicant) K Webber, solicitor (Respondent) SOLICITORS: Pikes & Verekers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10396/13, 10571/13 10533/13 EX TEMPORE Judgment 1The respondent council issued a statutory order to the applicant requiring it to stop work on a residential development on the ground that the work fell outside the terms of the applicable development consent. The applicant responded in three ways such that it now has three proceedings against the council before the Court: (a)It appealed to the Court against the stop work order. The main ground is that the stop work order is invalid. (b)It made an application to the council for modification of the development consent, which the council recently refused. The applicant has appealed to the Court. (c)If applied to the council for a building certificate, which the council is deemed to have refused. The applicant has appealed to the Court. 2All three proceedings are to be heard together. 3It is common ground that if the applicant is successful in obtaining substantial final relief in any of the three proceedings, then the stop work order would, in one way or another, fall away such that the applicant could lawfully proceed with the work. 4The applicant continued with work notwithstanding the stop work order. The council indicated in correspondence that it does not object to certain landscaping work continuing until determination of the appeal in the modification proceedings, but does object to other work continuing. 5The applicant now moves for interlocutory injunctions, including that the council be restrained from taking action on the stop work order until final determination of the appeal to the Court with respect to the modification application. 6If the applicant is unsuccessful in its three proceedings, the council may bring class 4 proceedings for demolition or otherwise in respect of the alleged unlawful work. In that event the council expresses concern before me that if the applicant were able to continue with all work as a result of its proposed interlocutory injunctions, then it may raise the fact that such work has been carried out as a discretionary defence to any such council proceedings. 7Ultimately, as a result of discussion between bench and bar, the notice of motion has been resolved on a basis which includes the following: the hearing of the three proceedings will be brought forward to next week, on 8 and 9 August 2013, with a view to them being determined as soon as practicable; a consent interlocutory injunction along the lines referred to above at [5]; an order that the applicant not carry out any work on the garage structure until further order; and orders for joint expert reports and other procedural directions to bring the proceedings to a final hearing next week. In making the consent order for an interlocutory injunction against the council, the Court notes that the applicant gives the assurance noted below. 8The consent orders of the Court are in accordance with the short minutes of 1 August 2013 that I sign and place with the papers, as follows: (1)Proceedings 10396 of 2013, 10533 of 2013 and 10571 of 2013 are to be heard together on 8 and 9 August 2013, commencing on-site at 9:30 AM. (2)The previous hearing date of those proceedings, fixed for 20 August 2013, is vacated. (3)The respondent is to file and serve a Statement of Facts and Contentions in proceedings No. 10571 of 2013 by 6 August 2013. (4)The respondent is to file and serve a bundle of documents in proceedings 10396 of 2013, 10533 of 2013 and 10571 of 2013 by 6 August 2013. (5)The respondent is to file and serve a notice of objectors who wish to give evidence in the hearing of proceedings No. 10533 of 2013, of whom the consent authority is aware, by 6 August 2013. (6)The respondent is to file and serve any "without prejudice" draft conditions in proceedings No. 10533 of 2013 by 8 August 2013. (7)The experts, grouped in areas of expertise, are to confer in accordance with the requirements of Division 2 of Pt 31 of the UCPR and the Expert Witness Code of Conduct in Schedule 7 of the UCPR and are to file and serve their joint report: (a) in proceedings 10533 of 2013 by 6 August 2013, (b) in proceedings 10571 of 2013 by 7 August 2013. (8)Order 1.b. sought by the applicant's Motion filed 16 July 2013 in proceedings No. 10396 of 2013 is made, namely: An order that the Respondent take no action on the Respondent's Order No. 125/2013 to "Cease carrying out works that ar [sic] not in accordance with Development Consent DA706/2010" dated 15 May 2013 ("the Order"), given to the Applicant, until the complete and final determination of any appeal to the Court pursuant to s97AA Environmental Planning and Assessment Act 1979 with respect to the Applicant's modification application. Order 2 of the notice of motion is stood over to the hearing referred to in Order 1 above. (9)The applicant will not carry out work on the garage structure until further order. NOTE: In making Order 8 by consent, the Court notes the following assurance given on behalf of the applicant: In any Class 4 proceedings commenced by Council arising from a determination of proceedings 10533 of 2013 and 10571 of 2013 which is adverse to the applicant, the applicant will not, for the purposes of the exercise of the Court's discretion under section 124 of the Environmental Planning and Assessment Act 1979, rely upon work done on and from 1 August 2013 in contravention of the respondent Council's Order to cease carrying out works given on 15 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: 05 August 2013