Strathfield Municipal Council v Michael Raad Architect Pty Ltd (No 1) [2017] NSWLEC 105

Land and Environment Court New South Wales

Medium Neutral Citation: Strathfield Municipal Council v Michael Raad Architect Pty Ltd (No 1) [2017] NSWLEC 105 Hearing dates: 15 August 2017 Date of orders: 15 August 2017 Decision date: 15 August 2017 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [14] Catchwords: INTERLOCUTORY INJUCTION – works allegedly undertaken not in accordance with development consent – whether there is a serious question to be tried – whether the balance of convenience favours the injunction Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 76A Cases Cited: Save our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 Category: Procedural and other rulings Parties: Strathfield Municipal Council (Applicant) Michael Raad Architect Pty Ltd (First Respondent) Hallmark Construction Pty Ltd (Second Respondent) Telmet Ventures Pty Limited (Third Respondent) Representation: Counsel: C J Leggat SC (Applicant) F Berglund (First, Second and Third Respondents)

Solicitors: Maddocks (Applicant) Milad S Raad & Associates (First, Second and Third Respondents) File Number(s): 2017/00248463 Publication restriction: No

EX TEMPORE Judgment 1. The matter comes before me this afternoon brought by Strathfield Municipal Council ('Council') seeking urgent interlocutory relief. The background may be briefly summarised. On 15 August 2017 Council filed a Summons seeking relief against three respondents; Michael Raad Architect Pty Ltd, Hallmark Construction Pty Ltd and Telmet Ventures Pty Limited. It appears that the first respondent is the recipient of development consent (DA0405/176/03) for a large development, comprising 303 apartments on a site known as 81 to 86 Courallie Avenue, Homebush West ('land'). 2. The relief sought by Council in the Summons is for a declaration that the respondents have breached s 76A of the Environmental Planning and Assessment Act 1979 (NSW) by carrying out development in contravention of the consent. Council seeks orders that the respondents cease all unauthorised development on the land and that the respondents do not construct the basement of Building 6 otherwise than in accordance with the development consent. Costs are also sought. 3. As a result of further information that has come to Council's attention, a Notice of Motion ('Motion') was filed today, seeking interlocutory relief against the respondents. The orders sought in the Motion are: 1 That the Respondents, having carried out development on Building 6 at SP 87671 (also known as '81- 86 Courallie Avenue, Homebush West – Stage 1D') (the Land) in contravention of development consent DA0405/176/03, are in breach of section 76A of the Environmental Planning and Assessment Act 1979 (NSW). 2 That the Respondents, their servants, and agents, cease all unauthorised development on the Land. 3 That the Respondents, their servants, and agents, do not construct the basement of Building 6 at SP 87671 otherwise than in accordance with the development consent DA0405/176/03. ... 1. Council moves on two affidavits of Roberto Giglio sworn 10 August 2017 and 15 August 2017 respectively. Mr Giglio gives evidence, which is uncontroverted, as follows: that he is an employee of Council (specifically the development compliance officer), that the respondents are the developers and registered proprietors of the subject land, and that the land is subject to development consent DA0405/176/03 and is also the subject of a construction certificate, which is annexed to his affidavit. Mr Giglio says on 26 July 2017 he inspected the land and observed that the construction of concrete pillars for a single level basement at Building 6 has proceeded without excavating for two basement levels, in circumstances where two basement levels were approved by the consent. He provides photographs of the construction and the building, which are before the Court. 2. After the inspection, Mr Giglio liaised with a private certifier Mr Steven Saad, and informed him that the basement construction being undertaken does not comply with the construction certificate approved by Mr Saad. On 9 August 2017, Council received correspondence from Mr Saad attaching a Notice of Proposed Order to Telmet Ventures Pty Ltd, the third respondent, which was issued under s 109L of the Environmental Planning and Assessment Act 1979 (NSW). Mr Giglio's affidavit sworn today indicates that he undertook an inspection today at approximately 11:05am and took further photographs (which he annexes to his affidavit) of the ongoing construction of Building 6. 3. It is clear from the material before the Court, and also accepting the submissions of Mr Leggat, of senior counsel who appears for Council, that Council's concern is that construction is being or is about to be, undertaken that will involve the pouring of concrete in a manner that is contrary to the development consent. 4. In the circumstances, Council seeks urgent relief on the basis that, if the concrete is in fact poured in a manner consistent with the reinforcement that is presently on the site, there appears to be little doubt that that would not be in accordance with the development consent and would be a breach of the consent and of the construction certificate, and therefore of the Environmental Planning and Assessment Act 1979 (NSW). It appears and I accept that the approved plans provided for two basement levels, as reflected in condition 1 of the development consent. 5. Ms Berglund of counsel (who appears for each of the respondents) indicates and I accept that she received instructions only this afternoon and has been unable to obtain further instructions in relation to the affidavits of Mr Giglio. However, she was able to accept the submission made by Mr Leggat that there is a s 96 modification application presently before Council which will have the effect, if successful, of modifying the consent such as the work that is presently likely to be undertaken will be - and I use the term loosely - lawful. 6. On the matters presently before me and doing my best to balance the rights of the parties, I believe that some limited interlocutory relief should be granted in the circumstances. The principles in relation to the grant of interlocutory injunction are relatively clear and have been set out in a number of cases. I refer to Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1; Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103; and Save our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127. 7. In short the position is, to obtain interlocutory relief, an applicant is required to show to the Court that there is in fact a serious question to be tried and that the balance of convenience has been met. Based upon the material which I have before me, I am comfortable that there is a serious question to be tried, and there is no evidence to indicate that the balance of convenience should be weighed in favour of the respondents. 8. In the circumstances, I find that Council is presently entitled to its interlocutory relief, and I have indicated to Ms Berglund that I am prepared to entertain the matter further in 36 hours, that is on Thursday morning, at a time convenient to the parties. 9. I note that I am part-heard in a hearing which will continue on Thursday, so I am prepared to provide time before that case goes ahead. To the extent that this matter is not further completed at that time, it can continue either during the luncheon break of the other proceedings, or after court. In the circumstances, I believe that the restriction for at least 36 hours will allow Ms Berglund to obtain appropriate instructions in relation to any further evidence. 10. I should note that I have suggested to the parties that, given my understanding of the nature and extent of the work that is being undertaken and that which is the subject of the development consent, and the fact that I am told that 79 car parking spaces may well be lost and/or may not be able to be relocated, I am of the strong view that there should be some proper discussion between the parties. If it is the fact that that which is otherwise sought to be undertaken now is able to be legitimised by way of the s 96 modification, then it is my view that that should follow the usual course, and Council may be able to expedite that matter in some way. In any event, I implore the parties to have further discussions in relation to the matter and attempt to reach some resolution, but in the interim and until further order I grant the following relief.