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. Serious issue to be tried 1. On the more substantive matters requiring my consideration on the interlocutory application, Mr Brown read an affidavit of Ms Philpott, an Environmental Health and Building Surveyor employed by the Council. Ms Philpott's affidavit, as was the case with Mr Coles' affidavit, was not objected to by Mr Deeb. 2. It is not necessary to set out, in extensive detail, the matters that were dealt with in Ms Philpott's affidavit. It is sufficient to note a number of matters to which she deposed or documents which had been referred to by her and annexed to her affidavit. The relevant matters, in summary, were: * On 29 September 2014, the Council had granted a deferred commencement development consent that permitted the erection of a residential flat building in the joint rear curtilage of 1 and 3 Ryde Road. The heritage cottages were, as part of the approved development, to be converted to commercial use. Such development was permissible as a consequence of the two properties comprising the combined site being zoned B4 Mixed Use in the Land Use Table to the LEP; * Two of the deferred commencement conditions required that the Council be satisfied as to the terms of: 1. a construction management plan; and 2. a construction traffic plan prior to the consent being what the Council's conditions describe as an "outright" development consent and prior to the issue of a construction certificate for the proposed development; * Although documents have been provided to the Council purporting to satisfy these two requirements, the Council has not accepted them as being adequate to satisfy the relevant two conditions; * As a consequence, the development consent has not been rendered operative in a fashion which would permit the issuing of a construction certificate to commence work on the development; * No document purporting to be a construction certificate has been provided to the Council (this position being advised to me by Mr Brown from the Bar Table, on instructions and without objection from Mr Deeb); * The 2014 development consent expressly required the preservation and conservation of the heritage fabric of the two heritage items (although it did permit the removal of more contemporary, non-heritage additions at the rear of the two cottages). No consent was granted to the removal of any of the heritage fabric of either cottage (particularly relevant in these interlocutory proceedings, no consent was granted to the removal of the verandah at the front of 1 Ryde Road); * A Google street view photograph of November 2017 of the cottage at 1 Ryde Road was appended to Ms Philpott's affidavit. This photograph clearly depicts a verandah at the front of this cottage; * A photograph taken by Ms Philpott on 4 September 2018, from the same perspective as the Google street view photograph, shows that the verandah at the front of 1 Ryde Road has been removed. 1. The LEP contains provisions in cl 5.10 dealing with heritage items. This provision of the LEP provides, specifically in cl 5.10(2)(a)(i), that demolition of any part of a heritage item is prohibited without express consent from the Council. 2. Mr Brown tendered a copy of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP) for the purposes of establishing, as a consequence of the terms of Subdivision 13 Demolition, provisions 2.25 and 2.26, that demolition of all of or part of the fabric of a heritage item could not be regarded as exempt or complying development. 3. Self-evidently from the terms of these provisions, that is the case and the demolition of the front verandah of 1 Ryde Road was not capable of being authorised by the Codes SEPP. 4. Similarly, it was clear from the terms of the unsatisfied deferred commencement conditions in combination with cl 5.10(2) of the LEP that the Council had in no way authorised any demolition of the front verandah of 1 Ryde Road. 5. It is also to be observed, for completeness, that an early version of a Construction Management Plan proposed for the approved development had suggested that the entirety of the heritage cottage on 1 Ryde Road should be removed, whilst a subsequent version of a proposed Construction Management Plan proposed the temporary removal of the front verandah of the cottage on 1 Ryde Road. 6. Both these documents were appended to Ms Philpott's affidavit and she deposed that she had undertaken a search of the Council's records and neither of those Construction Management Plans had been approved by the Council. 7. Finally, as two factual matters demonstrated by the Council through Ms Philpott's affidavit, at the present time there is a temporary, wire-mesh construction barrier approximately 1.8 metres high erected across the entirety of the frontage of 1 and 3 Ryde Road. The photographs of this fence appended to Ms Philpott's affidavit make it clear that the fence is located on the Council's footpath, as was deposed to be the position by Ms Philpott. It is to be observed that Mr Deeb did not suggest to the contrary. 8. On the basis of all of the foregoing material (uncontested by Mr Deeb as to fact or interpretation), I was satisfied that the substantive matters pleaded by the Council in its Summons gave rise to serious issues to be tried and provided a sufficient basis for me to contemplate making appropriate interlocutory orders preserving the status quo, at least for a little time. Doing so would permit proper pre-trial directions to be given to enable the substantive issues to be dealt with and sufficient time to enable, pending the directions hearing for this purpose, the Council and Mr Deeb each to contemplate what might be an ongoing interlocutory regime pending such substantive hearing. The balance of convenience 1. Although Mr Deeb said, from the Bar Table, that he was endeavouring to comply with the Council's requirements that he clean up vegetation in the front yard of 1 Ryde Road, in response to matters raised by the Council with him, and that he had only removed the verandah of 1 Ryde Road as it had been termite-infested, I indicated to him that, to the extent that those matters might be relevant, they were matters appropriately dealt with, with a proper evidentiary foundation, at the hearing of the Council's application for substantive relief. They were not matters, given the photographic evidence appended to Ms Philpott's affidavit depicting the complete absence of both vegetation in front of 1 Ryde Road and a verandah to the front of 1 Ryde Road as being relevant in these interlocutory proceedings. 2. I invited Mr Deeb to explain to me what might be the prejudice which would be caused to him or to the Company if I was to make interlocutory orders protecting the status quo, on a confined and short-term basis at least until a further mention before me as the Duty Judge the following week to set a timetable leading up to a hearing of the substantive issues raised by the Council. 3. Mr Deeb indicated that, on the basis of the revised orders I had proposed (in modification to that which had originally been sought by the Council), he did not object to the making of those orders. The "usual undertaking" 1. As the final element requiring consideration, I observe that the Council did not offer the "usual undertaking" as to costs and damages. I was satisfied that it was not appropriate to require the Council to give that undertaking because, as is generally the case in matters such as these, the Council has commenced the proceedings on the basis of seeking to protect the integrity of the statutory planning system and is not seeking to protect any private right. 2. As there is a distinct public interest in Council's adopting such a protective attitude, I was satisfied that it was not appropriate to weigh this position as a factor counting against the making of interim protective orders. Conclusion 1. On the basis of there being a proper factual foundation upon which I could conclude that there were serious issues to be tried arising from the substantive matters pleaded in the Council's Summons, coupled with the fact that there was no prejudice suggested would be occasioned to Mr Deeb or the Company, I was satisfied that it was appropriate to make interlocutory protective orders concerning 1 and 3 Ryde Road, Hunters Hill. 2. As a consequence, I made the following orders: (1) The First and Second Respondents, by themselves, their servants or agents, are restrained from carrying out development at Lot B DP 433644, known as 1 Ryde Road Hunters Hill (1 Ryde Road) and Lot A DP 433644, known as 3 Ryde Road Hunters Hill (3 Ryde Road), including in particular any demolition work or earthworks, otherwise than in accordance with the Environmental Planning & Assessment Act 1979 prior to 12.00 noon on Tuesday 11 September 2018; (1A) By 5.00 pm on Thursday 6 September 2018, the First and Second Respondents, by themselves, their servants or agents, shall place, end-to-end abutted, a row of hay bales on their narrow long edge along the full width of the frontage of 1 Ryde Road, Hunters Hill; (1B) The hay bales are to be placed immediately adjacent to the existing fence in front of 1 Ryde Road, Hunters Hill on the inner side of the fence butting up to the existing low brick wall; (1C) The hay bales in (1A) and (1B) are to be removed immediately on completion of the works required by orders (2) and (3). (2) The First and Second Respondents, by themselves, their servants or agents, shall erect a wire-mesh, site-security fence along the boundary frontage of 1 Ryde Road and 3 Ryde Road so as to join up with the existing side boundary fencing, with this fencing being required to be completely located within the boundaries of 1 Ryde Road and 3 Ryde Road. This order is to be complied with by 5.00 pm on Monday 10 September 2018; (3) The First and Second Respondents, by themselves, their servants or agents, shall erect erosion and sediment control fencing along the boundary frontage of 1 Ryde Road, with such fencing to be in accordance with the Reducing Managing Urban Stormwater (MUS): Soils And Construction, Vol 1 (commonly known as the "Blue Book"), published by Landcom. The erosion and sediment control fencing required by this order is to be installed by 5.00 pm on Monday 10 September 2018; (4) The matter is adjourned until 8.30 am on Tuesday 11 September 2018 before Moore J. ********** 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: 07 September 2018