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? The Consent 1. The Consent allows the applicant to construct 389 apartments as part of a development known as "Centenary Park" in Homebush West. Whilst most of the Consent is of limited relevance for present purposes, it is worth quoting condition 53 in full: 53. (1) All construction, demolition and excavation work shall be: (a) restricted to 7am and 5pm (Eastern Standard Time) on Mondays to Saturdays (inclusive); (b) prohibited on Sundays and public holidays; (2) Construction hours may be varied with the approval of Council in special circumstances. An application under Section 96 of the Environmental Planning & Assessment Act 1979 must be made in advance with sufficient time given to consider such application, including notification to surrounding property owners/occupiers if necessary. 1. It is noted that the applicant does not seek relief from compliance with conditions 56 and 102 of the Consent, which state: 56. Noise shall be minimised as far as practicable during works on site and only equipment fitted with approved silencing devices where applicable shall be used. … 102. Noise from construction activities associated with the development shall comply with the EPA's Environmental Noise Control Manual, Chapter 171 and the Protection of the Environment Operations Act 1997. Statutory framework 1. In relation to the power to order the relief sought, the applicant relies upon ss 122, 123 and 124 of the EPA Act. These provisions are set out below: 122 Definitions In this Division: (a) a reference to a breach of this Act is a reference to: (i) a contravention of or failure to comply with this Act, and (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and (b) a reference to this Act includes a reference to the following: (i) the regulations, (ii) an environmental planning instrument, (iii) a consent granted under this Act, including a condition subject to which a consent is granted, (iv) a complying development certificate, including a condition subject to which a complying development certificate is granted, (v) an order under Division 2A, (vi) a planning agreement referred to in section 93F. 123 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land-restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work-require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land-require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979. 1. Council alternatively submits that condition 53 of the Consent can only be amended by way of s 96 of the EPA Act. Whilst it is not necessary to set out this section in full, the relevant parts are as follows: 96 Modification of consents–generally … (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. … (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court. 1. As will become clear below, it is also worth reciting the objects of the EPA Act, as contained in s 5: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment. Power to grant relief Applicant's submissions 1. The applicant relies upon: 1. the open standing provisions in s 123 of the EPA Act that allow any person to bring proceedings in the Court to seek an order to remedy or restrain a breach of the EPA Act; and 2. the power under s 124 of the EPA Act to remedy or restrain a breach, which it submits allows the Court to make such orders as it sees fit to prevent a breach of the EPA Act. 1. It is submitted that the definitions provided in s 122 of the EPA Act support this construction. 2. Counsel for the applicant finally submits that the power of the Court therefore extends to the present situation, and it is within its jurisdiction to make an order to remedy or restrain the "operation" of condition 53 of the Consent to "prevent" the applicant being in breach of its obligations. Respondent's submissions 1. Council submits that this is not the case. 2. Council submits that a proper reading of ss 122, 123 and 124 of the EPA Act does not allow the type of order sought by the applicant. It submits that such an interpretation is not open on the wording of the provisions. However, to the extent that there is ambiguity that requires examination of the broader context, it is submitted that the applicant's interpretation is inconsistent with the objects contained in s 5 (and in particular subs (a)(ii)) of the EPA Act in any event. Consideration 1. It is noted at the outset that neither the applicant nor the respondent was able to refer the Court to any authority that deals with the present situation. In these circumstances, I am therefore required to undertake an interpretation and construction of the relevant provisions of the EPA Act. 2. Having considered the parties' positions, I find that the Court does not have the power to grant the relief sought under s 124 of the EPA Act. I consider that a proper construction of the provisions does not provide the Court with the ability to amend a term of a Consent so as to prevent that term from being breached unilaterally and without recourse to the regime (and protocols) provided for modification of development consents primarily pursuant to s 96 of the EPA Act. Further, I agree with the submissions made on behalf of Council that such a construction is consistent with the context of the provision, and in particular the objects in s 5 of the EPA Act. Exercise of discretion 1. To the extent that I am incorrect in my finding that the Court does not have the power to order the relief sought by the applicant pursuant to s 124 of the EPA Act, I also find that I would not exercise my discretion to make an order under this provision in any event. 2. It was submitted by the applicant that the Court should exercise its discretion to grant an order for relief for three (if not four) discrete reasons, which I shall consider individually. First reason – the pour cannot be stopped 1. The applicant submits that the Court should exercise its discretion to order relief because if the pour is not completed, the slab will need to be demolished. This is apparent from the evidence before me. Mr Frendo notes in his affidavit that the slab is of critical structural importance to the development, and deposed during oral evidence that if the pour was stopped, the slab or parts thereof would be condemned and cannot be used. The applicant submits that this is an important factor in favour of granting the relief sought. 2. Council submits that whilst this may be the case, there is no evidence on foot as to the financial implications of stopping the pour. No evidence is adduced by Council to challenge the proposition that the slab pour cannot be stopped. 3. Whilst I am prepared to accept that there would be some relatively serious consequences if the pour does not go ahead or continue, I also accept that the applicant, who bears an onus in these proceedings, has not brought other evidence to that regard. I also find that the implications of stopping the pour are not sufficient on their own to justify me exercising any discretion the Court may have under s 124 of the EPA Act. Second reason – previous conduct of Council 1. The applicant submits that because Council has previously "allowed" the applicant to continue past the hours allocated in condition 53 of the Consent, this discretion should again be exercised in the applicant's favour. The applicant relies upon the assertion of Mr Frendo that Council has provided its permission to undertake large pours outside of hours on at least 20 occasions over the preceding three years. Mr Frendo deposes that these permissions were obtained orally from "town planners" at Council, including a Mr Spiro Stavis and another unnamed female town planner who was employed at some stage before Mr Stavis. This, it is submitted, is consistent with the fact that a number of slabs of this size have already been poured at the site. 2. Council submits that this simply has not occurred, and that there is no probative evidence that it occurred. It relies upon the evidence of both Mr Wong and Ms Olsen, who both denied that any such indulgence of this nature had ever been given. 3. Further, it was submitted that any such application to extend hours must be done pursuant to s 96 of the EPA Act. This, it is submitted, is consistent with the phrasing of condition 53(2) of the Consent. 4. As stated earlier, the officer of Council who would have been of some significant assistance, Mr Koytz, has been unavailable to give evidence today. Whilst I understand that he is on annual leave today, I record my real concern with this reason for his non-attendance. 5. Despite this, I consider Ms Olsen's evidence compelling. She has been employed by Council as a town planner for the past five and half years, and has been the senior town planner since 2014. She testifies that she has never granted any permission or indulgence to allow the applicant to work after hours, nor was she aware that any such discretion had ever been granted. She also notes that Mr Stavis, the only town planner named by Mr Frendo, had ceased his employment with Council in 2014, and that she had moved into his position as senior town planner. Whilst this clearly contradicts the testimony of Mr Frendo, I accept that Mr Frendo may have used the phrase "town planners" in relation to other Council officers. 6. Further, whilst the previous conduct of Council may be a matter of some real significance, I consider that it would not necessarily be determinative of whether the Court should grant the relief sought by the applicant in any event. It may well be that the applicant proceeded along in the false understanding or assumption that, to the extent that Council had conducted itself in a certain manner in the past, Council would replicate this conduct again. However, given that Council has pointed to the fact that there is a formal procedure in place I do not consider that the applicant can rely on Council's alleged previous conduct, apart from being an explanation for the lateness of its application today. 7. The applicant makes a further submission that even if it were the case that the applicant sought to undertake the process proposed by Council and make an application for modification pursuant to s 96 of the EPA Act, Council would not have been able to deal with this application in an expeditious manner. This is consistent with the evidence of Ms Olsen, who stated that the process could not be undertaken in the seven day time period. 8. This is of some weight; however the fact that Council does not have a protocol (or procedures) in place that would facilitate a flexible and expeditious application under s 96 of the EPA Act does not outweigh the fact that this process was specifically prescribed by condition 53(2) of the Consent quoted above. I find that this process should have been undertaken by the applicant regardless of Council's alleged past conduct. Third reason – other conduct/practice of Council 1. The third matter raised by the applicant is in effect a re-agitation of the second matter, and relates to whether the refusal of Council now is in fact inconsistent with its previous conduct. 2. The applicant raises one further submission under this point regarding the powers of Council rangers. During cross-examination, Mr Wong conceded that whilst on occasions he and his rangers (including Mr Koytz) would often allow developers to continue working for a limited time (around 15 to 30 minutes) after they were technically required to cease work pursuant to their relevant consents, he did not actually have the delegation or power to allow this to occur. The applicant therefore submits that there is some level of elasticity in the way that Council deals with developers that exceed their allowed hours. 3. Despite this argument, I find that it would be unusual for a ranger, town planner or any other officers of Council, regardless of prior conduct, to unilaterally either grant consent or turn a blind eye to a significant extension of hours in circumstances where there is a formal protocol in place for such extensions. In particular, I find that the fact that officers may have acted beyond their powers on previous occasions does not legitimise the applicant's application for relief. Fourth reason – conduct of applicant 1. The applicant finally submits that the Court should take some comfort in the fact that the applicant has at least sought, by these proceedings, to seek regularisation of that which requires regularisation after 5:00 pm today. 2. I do not consider that this is a proper reason to grant the relief that it seeks, particularly given that the applicant's conduct denied Council the opportunity to assess the modification in the prescribed manner. Consideration 1. I am of the view that, if I were wrong in relation to the power of the Court and the Court does have the power to grant relief under s 124 of the EPA Act as per the applicant's submission, the circumstances involving this particular matter do not warrant discretion being exercised in favour of the applicant for five reasons. 2. First, the conduct of the applicant in providing its application so late has in fact denied Council the opportunity to assess the modification in the usual way. The evidence before me suggests that there was in fact, at the least, seven days' notice given by the applicant to the concrete supplier. Further, the evidence suggests that the process otherwise required for this size of pour was "programmed" approximately six weeks prior to the pour taking place. Whilst the precise day may not have been known, the applicant was at least aware that this pour was on the horizon. Although it may have been the case that the applicant did little or nothing because of Council's previous conduct, I consider that this is not sufficient to allow the Court to exercise its discretion to unilaterally modify the Consent. 3. Second, the conduct of the applicant also denies the local residents, some of whom have expressed concerns previously, the opportunity to be involved in the assessment of the modification, and in particular denies the residents the opportunity to be informed of the extended hours. It is my view that residents, in the light of the evidence that there have been complaints over some period of time in relation to the applicant's conduct, should be given at least some opportunity to participate, and at least some notice that the pour would continue well after 5:00 pm. 4. Third, the conduct of the applicant has otherwise not been satisfactory to enliven the Court's discretion. The applicant chose to proceed with the pour today, even when it knew that Council was unlikely or unable to give consent. I accept that given the evidence that the pumps and the machinery to allow the large pour were put in place yesterday, it may be that, having undertaken that process, it is hard to stop it. However, the applicant knew that it would not be able to guarantee Council's consent from at least some time yesterday and apparently determined to continue regardless. 5. Fourth, there is no evidence of discrete financial hardship as a result of stopping the pour, and no evidence of the pour being part of a critical path. I am prepared to take judicial notice that the evidence is that there may be further work needed, and that there may be a critical path in any event in which the slab would be an important matter. However, the lack of evidence prevents me from placing any weight on this point. 6. Fifth, I consider that there is merit in Council's submission that there are avenues available for the applicant to pursue orderly development, which is required under s 5(a)(ii) of the EPA Act. Section 96 of the EPA Act provides the methods for seeking and granting modifications to consents, and this section was specifically highlighted in condition 53(2) of the Consent. Conclusion 1. Given my findings above, I am not prepared to make the order in relation to the relief that is sought. If necessary, I will hear from the parties on costs in due course. Orders 1. The Court orders that: 1. Summons is dismissed. 2. Costs are reserved. 3. Exhibits are returned. ********** 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: 16 March 2017