Hunters Hill Council v Salwa Aust Pty Ltd [2018] NSWLEC 141

Land and Environment Court New South Wales

Medium Neutral Citation: Hunters Hill Council v Salwa Aust Pty Ltd [2018] NSWLEC 141 Hearing dates: 5 September 2018 Date of orders: 05 September 2018 Decision date: 07 September 2018 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [24] Catchwords: INTERLOCUTORY INJUNCTION - two heritage cottages - allegation of demolition of part of one cottage - serious issue to be tried - "usual undertaking" not offered - public body seeking to protect integrity of planning system - "usual undertaking" not required - no prejudice to respondents if interlocutory orders made - orders made Legislation Cited: Environmental Planning & Assessment Act 1979 Category: Principal judgment Parties: Hunters Hill Council (Applicant) Salwa Aust Pty ltd (First Respondent) Alecsi Deeb (Second Respondent) Representation: Counsel: Mr P Brown, solicitor (Applicant) Mr A Deeb, self-represented litigant (First and Second Respondents)

Solicitors: HWL Ebsworth (Applicant) File Number(s): 272776 of 2018 Publication restriction: No

TABLE OF CONTENTS Introduction Serious issue to be tried The balance of convenience The "usual undertaking" Conclusion JUDGMENT

Introduction 1. HIS HONOUR: The cottages on 1 Ryde Road, Hunters Hill and the adjacent property to its west, 3 Ryde Road, are listed as items of local heritage in the Hunters Hill Local Environmental Plan 2012 (the LEP) in Sch 5 as items I476 and I475. 2. Each of these properties is owned by Salwa Aust Pty Ltd (the Company). The sole shareholder, Director and Company Secretary of the Company is Mr Alecsi Deeb. 3. Late on the afternoon of Wednesday 5 September 2018, Hunters Hill Council (the Council) commenced proceedings against the Company and Mr Deeb, as civil enforcement proceedings in Class 4 of the Court's jurisdiction, concerning activities that the Council said had been, and were proposed to be, undertaken at 1 and 3 Ryde Road in contravention of the LEP and the requirement to have an operative development consent granted pursuant to the processes available under the Environmental Planning & Assessment Act 1979. 4. By Notice of Motion filed with the Summons commencing the proceedings, the Council sought a series of interlocutory orders that would maintain the status quo pending determination of the substantive matters pressed by the Council in its Summons. The proposed orders would require interim protective measures to secure the street frontage of the two properties and to prevent sedimentation from disturbed soil on 1 Ryde Road being washed onto the adjacent footpath and into the Council's stormwater drainage system. 5. In support of its Notice of Motion seeking interlocutory relief, Mr Brown, solicitor appearing for the Council, relied on two affidavits. The first of these was from Mr John Cole, the Council's solicitor, attesting to contact he had had with Mr Deeb to inform him of the action that the Council proposed to commence (including that the Council proposed to seek interlocutory restraining orders). 6. As a consequence of the contact between Mr Cole and Mr Deeb, Mr Deeb was in attendance when the proceedings on the Council's Notice of Motion seeking interlocutory relief commenced at 4.00 pm. Mr Deeb was not legally represented. Being mindful of the obligations that the Court has to self-represented litigant's in such circumstances (Mr Deeb appearing not only for himself but, as the sole director of the Company, appearing for the Company), I explained initially, and throughout the interlocutory hearing, the procedural stages that were being addressed (particularly that the orders I might potentially make were merely interim ones pending consideration of the substantive matters pressed by the Council). 7. At the conclusion of the interlocutory hearing at approximately 5.45 pm, I indicated that I proposed to make interlocutory orders in the form appearing at the conclusion of this judgment (being orders based on that which had been sought by the Council but modified by me after discussion with the parties). I indicated that I would, subsequently, provide my reasons for making those orders. These are those reasons.