Hallmark Construction Pty Ltd v Strathfield Municipal Council [2016] NSWLEC 170

Land and Environment Court New South Wales

Medium Neutral Citation: Hallmark Construction Pty Ltd v Strathfield Municipal Council [2016] NSWLEC 170 Hearing dates: 07 October 2016 Date of orders: 07 October 2016 Decision date: 07 October 2016 Jurisdiction: Class 4 Before: Robson J Decision: (1) Summons is dismissed.

(2) Costs are reserved.

(3) Exhibits are returned. Catchwords: JUDICIAL REVIEW – anticipated breach of consent – extent of judicial power to grant relief to prevent breach of consent – no such power available under s 124 of EPA Act Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 5, 96, 122, 123, 124 Category: Principal judgment Parties: Hallmark Construction Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: S Berveling (Applicant) M Winram (solicitor) (Respondent)

Solicitors: Milad S Raad & Associates (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2016/00298746

EX Tempore Judgment 1. The matter before me as Duty Judge is a summons filed today by Hallmark Construction Pty Ltd ('applicant') seeking final relief as a matter of urgency. The primary relief sought is an order that the applicant be relieved from complying for today only (being 7 October 2016) with condition 53 of the notice of determination of development application no. 0405/176 issued on 12 June 2007 ('Consent') for a development of near 400 residential apartments at 78 Marlborough Road, Homebush West, in the local government area of Strathfield Municipal Council ('Council'). 2. The reason that the matter has assumed such urgency is that a concrete "pour" for a "podium transfer slab" for one of the buildings commenced this morning, and continues as I give judgment. The pour involves 1,000 cubic metres of concrete. 3. Condition 53 of the Consent requires that construction and similar works be restricted between the hours of 7:00 am and 5:00 pm Eastern Standard Time on Mondays to Saturdays. The evidence before me suggests that the concrete must be poured in such a manner that is continuous. The applicant seeks relief from compliance with condition 53 of the Consent to allow the pour, and associated works, to continue until 10:30 pm tonight. 4. The applicant, represented by Dr Berveling of counsel, relies primarily upon the evidence of John Raymond Frendo, construction manager of the applicant, and Neil Graham Kerz, solicitor for the applicant. Mr Frendo gives detailed background in his affidavit dated 6 October 2016. Whilst I do not summarise this in any detail, I note that Mr Frendo says that since the construction program commenced in 2012, there had been a practice on at least 20 occasions whereby he has informed "town planners" at Council that a concrete pour for a slab cannot be completed within the permitted construction hours, and that he received "verbal advice" permitting the applicant to work beyond those hours. Mr Frendo also notes that these arrangements have always been verbal, and that no documentation recording them has ever been produced. 5. Council, represented by Mr Winram, opposes the order and, given the exigency of the situation and the lateness of the application, has only relied upon the oral evidence from Mr Patrick Wong and Ms Sophie Olsen, both employees of Council. Both gave evidence of Council's protocols and practices. 6. The parties agree that two conversations occurred yesterday (being 6 October 2016) regarding the proposed pour. Although the parties disagree as to the precise contents of those conversations, it is common ground that this was the first time that the applicant had sought an extension of time for today's pour, and that Council was not prepared to give the applicant that indulgence. Critically, Damian Koytz, the senior ranger employed by Council who had spoken with Mr Frendo on both occasions, is on annual leave and not available to give evidence today. 7. Given Council's refusal to allow the extension of time, the applicant seeks relief by way of an order relieving it from compliance with condition 53 of the Consent. This gives rise to two issues that the Court is required to address: 1. does the Court have the power to grant the applicant the relief that it seeks? and 2. if so, should the Court exercise its discretion under s 124 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') to grant that relief?