Land and Environment Court New South Wales Medium Neutral Citation: Burrell v Mullin [2018] NSWLEC 165 Hearing dates: 23 and 24 October 2018 Date of orders: 24 October 2018 Decision date: 24 October 2018 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [59]. Catchwords: INTERLOCUTORY APPLICATION: application to restrain building and construction works below residential and commercial premises – serious issues to be tried in relation to the validity of a complying development certificate issued by a private certifier – balance of convenience in favour of granting interim injunctive relief – expedited final hearing ordered. Legislation Cited: Environmental Planning and Assessment Act 1979, Divs 4.3, 4.5, ss 1.6, 4.2, 4.5, 4.26, 4.31, 4.65, 4.69 Kogarah Local Environmental Plan 2012, cl 16, Sch 1 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Pt 5, cls 1.15, 1.17, 1.18, 2.51, 5.4 Cases Cited: Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34; (2016) 216 LGERA 385 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 Texts Cited: Category: Procedural and other rulings Parties: John Llewellyn Burrell (First Applicant) Van Minh Lam (Second Applicant) My Hua Lam (Third Applicant) Alex Mullin (First Respondent) Max Eddine (Second Respondent) Concrete Jungle Holdings Pty Ltd (Third Respondent) Jeffrey Stack (Fourth Respondent) Representation: Counsel: Mr J Lazarus with Mr D Robertson (First to Third Applicants) Mr Dean Morton (Representative) (First Respondent) N/A (Second Respondent) N/A (Third Respondent) Submitting Appearance (Fourth Respondent) Solicitors: Burrell Solicitors (Applicants) Mr Dean Morton (Representative) (First Respondent) N/A (Second Respondent) N/A (Third Respondent) N/A (Fourth Respondent) File Number(s): 2018/322871 Publication restriction: N/A Judgment Mr Burrell Seeks to Restrain Building Works Being Carried Out On the Floor Below 1. This is an application by Mr John Burrell, Mr Van Minh Lam and Mr My Hua Lam (together, "the applicants"), seeking interlocutory injunctive relief against the second and third respondents, Mr Max Eddine (also known as "Mo") and Concrete Jungle Holdings Pty Ltd ("Concrete Jungle"), together with an order for expedition. 2. The applicants seek to restrain Mr Eddine and Concrete Jungle from carrying out at premises on the ground floor of the building at 13-15 Gray Street, Kogarah, being Lots 1 and 2 in Deposited Plan 770957 ("the premises"), any building work: 1. relating to the complying development certificate CDC No C2018187 dated 10 October 2018, issued by the first respondent, Mr Alex Mullin ("the CDC"); and/or 2. developing the premises into a restaurant/café, or food and drink premises. 1. The applicants occupy the building in which the premises are located. Mr Burrell conducts his legal practice on the top floor of the building and also resides there with his girlfriend. Messrs Lam and Lam operate a coffee shop on the ground floor of the building, adjacent to the premises. 2. The respondents are, respectively: 1. Mr Mullin, a private certifier who issued the CDC to Mr Eddine and Concrete Jungle to carry out the purported complying development at the premises (as detailed below); 2. Mr Eddine, who is a director of Concrete Jungle and has been carrying out much of the development work in the premises since about 18 September 2018 (as detailed below); 3. Concrete Jungle, the lessee of the premises; and 4. Dr Jeffrey Stack, the fourth respondent, who is the owner of the property at 13-15 Gray Street, Kogarah, which includes the premises. Dr Stack has filed a submitting appearance in the matter. 1. The applicants allege that Mr Eddine and Concrete Jungle are carrying out unlawful development of the premises by developing it into a 40 seat restaurant/café, without obtaining development consent despite such development requiring consent under the Kogarah Local Environmental Plan 2012 ("the LEP") and Div 4.3 of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 2. The applicants seek as final relief: 1. declarations that the development works carried out are unlawful; 2. a declaration that the CDC issued by Mr Mullin is invalid and of no effect; and 3. orders that Mr Eddine and Concrete Jungle demolish and remove the unlawful works and reinstate the premises to the state that they were in prior to the unlawful works being carried out. 1. The bases upon which the applicants allege that the development works being carried out by Mr Eddine and Concrete Jungle are unlawful include: 1. first, the CDC purportedly issued by Mr Mullin under Pt 5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP") on the basis that the development work is complying development, is invalid because the development work is not complying development, and therefore, the development work undertaken since 10 October 2018 is unlawful; and 2. second, much of the development work had been carried out prior to issuing the CDC on 10 October 2018, and such work required development consent because it was not exempt development under the Codes SEPP. Therefore, the development work carried out prior to 10 October 2018 is also unlawful. 1. In support of their application for interlocutory relief, the applicants relied on the following evidence: 1. an affidavit of Mr Burrell dated 19 October 2018 ("the Burrell affidavit"); 2. the affidavit of Mr Van Minh Lam dated 19 October 2018 ("the Lam Affidavit"); and 3. documents comprising exhibits to the affidavits referred to above. 1. The applicants relied on an affidavit of service of Mr Burrell sworn on 23 October 2018, to demonstrate that all three respondents had been properly served with a copy of the summons and a copy of the evidential material referred to above, and had been notified of today's application. 2. Mr Mullin appeared in person at the hearing, ably assisted by Mr Dean Morton, who has certification experience. There was, however, no appearance by Mr Eddine or Concrete Jungle, and the application proceeded in their absence. Applicable Legal Principles to the Grant of Interim Injunctive Relief 1. The relevant legal principles applying in an application for interlocutory injunctive relief are well known and have been stated in a plethora of cases (see for example, Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1). They were helpfully summarised by Biscoe J in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 (at [4]-[6], especially at [4]): 4 An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 at 153-4; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 at [13] (Campbell J); Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 at [6] (Preston CJ). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent or a third party would be likely to suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Tegra at [18]–[19]. Thus, the balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536 (McLelland J). Although normally the Court does not undertake an interlocutory trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case (Beecham at 622), in some cases the strength of the applicant's case, above the threshold of a serious question, may be relevant to the risk of doing an injustice: Castlemaine at 154; Kolback at 536. 1. In summary, it is necessary for the applicants to demonstrate that there is a serious question to be tried (that is, the applicants must demonstrate that they have a prima facie case for the granting of final relief), and that the balance of convenience favours the granting of interlocutory injunctive relief. 2. For the reasons that follow, I am satisfied that the applicants have demonstrated both and that an interim injunction should be granted. Moreover, given the nature of the ongoing prejudice suffered by the applicants, especially Mr Burrell, and also by Mr Eddine and Concrete Jungle, occasioned by the granting of the interim relief, it is appropriate to expedite the final hearing of the matter. A Florist Becomes a Café 1. The relevant factual background is summarised in the applicants' affidavit material which I have read and had regard to. 2. As stated above, the premises are in a building located at 13-15 Gray Street, Kogarah, which is on the land in Folio Identifiers 1/770957 and 2/770957. The land is owned by Dr Stack. The lower ground floor of the premises are leased to Concrete Jungle and the upper floor is leased to Mr Burrell. 3. The land is zoned R3 Medium Density Residential under the LEP. In the R3 zone, the use of the land as food and drink premises (including a restaurant or café) is prohibited: Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 2 Permitted without consent Nil 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Car parks; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Flood mitigation works; Group homes; Hotel or motel accommodation; Multi dwelling housing; Neighbourhood shops; Places of public worship; Public administration buildings; Recreation areas; Residential flat buildings; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing 4 Prohibited Any development not specified in item 2 or 3 1. However, cl 16 of Sch 1 of the LEP provides that an additional permitted use of the land at 13-15 Gray Street – that is, permitted with development consent - is as a restaurant or café. On the evidence presently before the Court, there appears to be no development consent for the use of the premises as food and drink premises. 2. The premises are comprised of three rooms: a main shopfront room; and two smaller rooms at the back of the premises. Since at least 2000, the main shopfront room has been used as a florist shop. This use continued until about June or July 2018. The two back rooms were only more recently used as part of the florist shop, with one of the rooms being used as part of the florist shop since about 2013, and the other room being used as part of the florist shop since about May 2018. On the evidence currently before the Court, it would appear, that there is no development consent in place for the use of any of the rooms of the premises as a florist shop. 3. On 18 September 2018 Mr Eddine commenced significant development work in the premises, which included: 1. stripping out the premises, including the demolition of the cool room; 2. large skip bins being filled with rubble and taken away; 3. the wooden floor bearers and joists being removed; 4. the wooden ceiling being removed; 5. a brick fireplace and chimney being demolished and removed; 6. the backfilling of the subfloor with gravel/builders fill; 7. the laying of new plumbing, water and drainage pipes; and 8. the laying of a new concrete floor, as well as tiling of the floor. 1. These development works have generated significant noise, dust and debris, which has interfered with Mr Burrell's use and enjoyment of his property, including inundating his property on several occasions with dust, and on one occasion with dirty water. 2. On 5 October 2018, Mr Burrell made a complaint to Georges River Council ("the Council") about the work being carried out in the premises. 3. On 8 October 2018, a Council ranger was observed visiting the premises and the work then ceased for two days, on 8 and 9 October 2018. 4. However, on 10 October 2018 Mr Mullin purported to issue the CDC under Pt 5 of the Codes SEPP, and the development work recommenced at the premises. It is presently continuing. Legislative Framework 1. Division 4.5 of the EPAA deals with complying development (the term "complying development" is described at s 4.2(5) of that Act). 2. Section 4.31 provides that: 4.31 Validity of complying development certificate Without limiting the powers of the Court under section 9.46 (1), the Court may by order under that section declare that a complying development certificate is invalid if: (a) proceedings for the order are brought within 3 months after the issue of the certificate, and (b) the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued. 1. Relevantly, for present purposes, s 4.69 states as follows: 4.69 Uses unlawfully commenced (cf previous s 109A) (1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except: (a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or (b) the granting of development consent to that use. (2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land. 1. Clause 1.17(1) of the Codes SEPP states as follows: 1.17 What development is complying development? (1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy. Note. Development referred to in clause 2A.1 is also complying development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out. 1. Clause 1.18(1)(a)-(c) of the same instrument relevantly provides: 1.18 General requirements for complying development under this Policy (1) To be complying development for the purposes of this Policy, the development must: (a) not be exempt development under this Policy, and (b) be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out, and (c) meet the relevant provisions of the Building Code of Australia, … 1. Critically, cl 5.4 in Div 1 relevantly provides that: 5.4 Development standards (1) The standards specified for that development are as follows: (a) the current use must be a lawful use, (b) the current use must not be an existing use within the meaning of section 4.65 of the Act, … (h) car parking must be provided: (i) in accordance with any existing condition relating to car parking that applies to the use of the land, or (ii) if there is no existing condition relating to car parking either: (A) in accordance with any relevant requirements contained in an environmental planning instrument or development control plan applying to the land, or (B) if a contribution in relation to car parking in compliance with a contributions plan under Division 7.1 of the Act is imposed as a condition of approval under clause 136K of the Environmental Planning and Assessment Regulation 2000—if that contribution is made, … (2) The following requirements of the Building Code of Australia are also standards specified for that development: (a) if the change of use involves an area of more than 500m2 of commercial premises, or an area of more than 1,000m2 of premises used for industry or a warehouse or distribution centre, that area must: (i) comply with the requirements set out in DP2–DP5 of Volume 1 of the Building Code of Australia, and (ii) comply with the number of sanitary and other facilities set out in FP2.1, FP2.5 and FP2.6 of Volume 1 of the Building Code of Australia, and (iii) comply with the light and ventilation requirements set out in FP4.1–FP4.5 of Volume 1 of the Building Code of Australia, (b) if the building is a mixed use development that also contains a Class 2, 3 or 4 portion—the area involved in the change of use must be separated from the Class 2, 3 or 4 portion by building elements that comply with the fire resistance performance requirements set out in CP2 and CP8 of Volume 1 of the Building Code of Australia. 1. The term "shop" is defined in the Codes SEPP to mean: shop means premises that sell merchandise such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like or that hire any such merchandise, and includes a neighbourhood shop and neighbourhood supermarket, but does not include food and drink premises or restricted premises 1. And the composite term "food and drink premises" is defined in that instrument to mean: food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following: (a) a restaurant or cafe, (b) take away food and drink premises, (c) a pub, (d) a small bar. There is a Serious Question to be Tried Regarding the Validity of the CDC 1. Ground 1 of the summons alleges that the CDC issued by Mr Mullin is invalid because the development the subject of the CDC is not complying development: 1. by reason of the relevant provisions of the LEP, the use of the premises as a restaurant/café is permitted only with development consent. There is no development consent in place for use of the premises as a restaurant/café. Therefore, the development work is prima facie in breach of the LEP and s 4.2 of the EPAA; 2. the development work carried out since 10 October 2018 is unlawful because it is not complying development pursuant to cl 1.17 of the Codes SEPP and s 4.26 of the EPAA, and therefore, the CDC ought not have been issued (see s 4.31 of the EPAA) because: 1. the development work is for a change of use of the premises from a florist shop to a restaurant/café; 2. however, there is no development consent in place for the use of the premises as a florist shop. Therefore, the "current use" of the premises as a florist shop is not a lawful use, and cl 5.4(1)(a) of the Codes SEPP is accordingly not satisfied; and 3. if the use of the premises as a florist is an existing use within the meaning of s 4.65 of the EPA Act, it follows that the development work for a change of use cannot be complying development (see cl 5.4(1)(b) of the Codes SEPP); and 1. thus, the development is not complying development because it is not development specified in a complying development code that meets the standards specified for that development, namely, cls 4.5(1)(a) or 4.5(1)(b) (see cl 1.17 of the Codes SEPP). 1. In response, Mr Mullin relied on a development consent granted to Mr Burrell on 2 July 2001 ("the Burrell consent") – to convert part of the ground floor of the premises from retail to commercial and part of the first floor from a residential to a commercial tenancy – to argue that there was consent to use the premises as a café. Alternatively, he argued that the CDC constituted development consent. 2. Leaving aside any issues concerning the construction of the Burrell consent relied upon by Mr Mullin (which do not presently require resolution) the fact remains that the present use of the premises is as a florist, and not as a café, arguably requiring consent under the LEP, and therefore, in the absence of such consent the current use is not a lawful use. Furthermore, while it is correct to say that the CDC constitutes development consent, this submission begs the central question of whether it is complying development. 3. Ground 2 of the summons alleges that the CDC is invalid because the development does not provide car parking in accordance with the relevant requirements of Pt B4 of the Kogarah Development Control Plan 2013 ("the DCP") because: 1. cl 5.4(1)(h)(ii)(A) of the Codes SEPP relevantly states that if the development is for a change of use in accordance with cl 5.3, one of the standards specified for development is that where there is no existing condition relating to car parking, car parking must be provided in accordance with any relevant requirements contained in an environmental planning instrument or development control plan applying to that land; 2. Pt B4 of the DCP (which applies to the land where the premises are located) requires there to be one parking space per 100m² of gross floor area, or the greater of one space per five seats including (both internal and external seating) or one space per two seats (internal seating); 3. the development does not provide any parking whatsoever and breaches Pt B4 of the DCP, and thus breaches cl 5.4(1)(h)(ii)(A) of the Codes SEPP; and 4. accordingly, the development is not complying development because it is not development specified in a complying development code that meets the standards specified for that development, namely, cl 5.4(1)(h)(ii)(A) (see cl 1.17 of the Codes SEPP). 1. Mr Mullin argued that the requirement for car parking is satisfied because the Burrell consent clearly showed that six car parking spots had been allocated to the development the subject of that consent. 2. But the requirement for car parking is in respect of the specified intended use of the premises as a café. The use that Mr Mullin is relying on is a different use, and therefore, the provision of those six parking spaces is irrelevant and does not assist him. 3. Ground 3 of the summons alleges that the CDC is invalid because the development does not comply with cl 5.4(2)(b) of the Codes SEPP on the basis that the building is a mixed use development that also contains a Class 2, 3 or 4 portion, and the area involved in the change of use (that is, the premises) is not separated from the Class 2, 3 or 4 portion by building elements that comply with the fire resistance performance requirements set out in the relevant sections of the Building Code of Australia. This is based on the fact that: 1. part of Mr Burrell's lease above the premises is used for a residential use. Therefore, the building is a mixed use development; 2. however, the current development of the premises does not provide for the separation of the area involved in the change of use (that is, the premises) from the Class 2, 3 or 4 portion by building elements that comply with the fire resistance performance requirements set out in the relevant sections of the Building Code of Australia; and 3. therefore, the development is not complying development because it is not development specified in a complying development code that meets the standards specified for that development, namely, cl 5.4(2)(b) (see cl 1.17 of the Codes SEPP). 1. Mr Mullin refuted these submissions, first, on the basis that he was told by Dr Stack that the area leased by Mr Burrell was for commercial purposes only (there was a written statement to this effect by Dr Stack). He stated that he was not required to inspect the area leased to Mr Burrell and did not do so. It was for this reason that he concluded that no fire separation was necessary. Second, he questioned the lawfulness of the use of the first floor leased area for residential purposes by Mr Burrell having regard to the Burrell consent. 2. Again, leaving aside any issues (at this stage of the proceedings, at least) concerning the proper construction of the Burrell lease (which may not preclude residential use), it is arguable that parts of the building contained Class 2 portions under the Building Code of Australia, and therefore, fire separation is required. Assuming this to be the case, it is arguable that the CDC is accordingly invalid on this basis. 3. Ground 4 of the summons alleges that the CDC is invalid to the extent that it purports to certify development work carried out prior to the CDC being issued because: 1. there was significant development work carried out in the period between 18 September and 9 October 2018; 2. this development work was not exempt development pursuant to cl 1.15 of the Codes SEPP and s 1.6 of the EPAA because: 1. it was not minor internal building alterations pursuant to subdiv 26, cl 2.51(1) of the Codes SEPP; and 2. the development work was for the change of use of the premises, but is not specified under Subdiv 10A of the Codes SEPP because the current use of the premises as a shop was not a lawful use (see cl 2.20B(a) of the Codes SEPP) and the new use is for food and drink premises (see cl 2.20B(f)(i) of the Codes SEPP); 1. therefore, the development is not exempt development because it is not specified in an exempt development code that meets the standards specified for that development (cl 1.15 of the Codes SEPP); 2. further, as held in Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34; (2016) 216 LGERA 385 (at [174]), a CDC cannot be validly issued for development that has already taken place; and 3. therefore, the CDC purportedly issued by Mr Mullin on 10 October 2018 cannot have been validly issued in respect of the development work undertaken prior to that date, and such work required development consent because it was not exempt development. Therefore, the development work carried out prior to 10 October 2018 was unlawful. 1. Mr Mullin submitted that the CDC was issued only in respect of works after the date of its issue and was therefore not invalid (it was not in dispute that some works had occurred prior to this date). However, on its face the CDC purports to authorise the change of use and concomitant renovations and alterations from the use of the premises as a florist to a café, all of which was clearly taking place prior to 10 October 2018. 2. In light of the above discussion, there can be no doubt that there is a serious question to be tried about the lawfulness of the development work undertaken in the premises by Mr Eddine and Concrete Jungle in the period since 18 September 2018 to present, and the validity of the CDC issued by Mr Mullin. 3. The applicants have, in my opinion, demonstrated that there is an arguable prima facie case that the development work is unlawful on the basis that it is not exempt development or complying development under the Codes SEPP, and therefore, that the work required development consent under the LEP and EPAA, and that no such consent was obtained. The Balance of Convenience Favours the Granting of Interlocutory Injunctive Relief 1. The applicants' affidavit evidence details the present deleterious impacts that the work at the premises is having on the applicants as occupiers of the building, in particular, noise and dust intrusions and interference with car parking in and around the building. These adverse impacts are ongoing. 2. As to Mr Burrell's property, the continuing deleterious impacts of the development work include: 1. dust inundation and the requirement for ongoing cleaning; 2. tobacco smoke and other odours; 3. excessive noise entering his premises due to the removal of the ceilings in the premises below; 4. loss of aural privacy due to the removal of the ceilings in the premises below; 5. disruption and interference with the use of the car park behind the building, which is used for parking for clients of his legal practice; and 6. an increased risk of fire due to the absence of adequate fire separation between the floors. 1. Furthermore, once the development is completed, the premises are intended to operate as a 40 seat restaurant/café. This impending use of the premises will have further deleterious effects on the applicants, especially noise impacts and parking impacts. In particular: 1. there is no intention to replace the ceiling in the premises or not to keep the wooden beams exposed for aesthetic reasons, in which case the adverse impacts on Mr Burrell's premises caused by the removal of the ceilings below – in particular noise, odours, and the loss of aural privacy, as well as the removal of any fire protection – will be ongoing, even when the building works are completed; and 2. the area around the property suffers from a lack of parking spaces. Once the building works are complete and the premises commence to be used as a 40 seat restaurant/café, the parking impacts of the development are likely to adversely impact the businesses operated by all of the applicants. 1. These ongoing effects are the very types of impacts that ought to result in notification to neighbouring owners of any proposed development. However, this has not occurred in the present case because the respondents have purported to proceed with the development by way of the complying development process under Div 4.5 of the EPAA. Therefore, the applicants have been denied the opportunity to object to the proposed development of the premises, despite the adverse impacts the development is having on each applicant. 2. In order to address any concerns that the Court may have had concerning the delay by the applicants in bringing this application (according to the Burrell affidavit, he noticed the work commencing on approximately 18 September 2018, whereas the summons was filed on 22 October 2018), the applicants relied on the fact that, first, Mr Eddine appeared initially to lie to the applicants as to the reason for the renovation and the use of the premises, presumably to allay their concerns. Second, the Council appeared to have the matter in hand and the work ceased, albeit for a brief period of time. And third, Mr Eddine apparently threatened Mr Van Minh Lam by telling him that "if you cause any trouble I will get a bikie gang to burn you out." 3. Having regard to the foregoing matters, I am satisfied that the applicants have commenced proceedings, and sought interim relief, absent any disentitling delay. 4. Finally, it is noted that the applicants have proffered to the Court the usual undertaking as to damages, a factor weighing in their favour in assessing the balance of convenience. 5. Given all the circumstances, I find that in the present case the balance of convenience favours granting the interlocutory relief sought by the applicants. Expedition 1. Due to the ongoing nature of the adverse impacts caused by the ongoing development works on the applicants, some of which will not be cured by the granting of a temporary injunction (for example, the noise, dust and fire safety impacts), the applicants also sought an order for expedition of the final hearing of the summons. 2. Although Mr Eddine and Concrete Jungle were not present in Court, it is highly unlikely that they would oppose such a course. It may be presumed, as a matter of common sense, that the longer the premises remain in a partially renovated state, the greater any financial losses they may incur. 3. For these reasons, it is appropriate to expedite the final hearing of these proceedings. Mediation 1. Having said this, given that the Council has chosen not to involve itself in this matter, and the proceedings essentially concern a dispute between private entities, it is appropriate that the parties attempt to resolve the matter by mediation (especially in light of the two day hearing estimate given by the parties) prior to the matter being heard before the Court. Orders 1. For the reasons set out above, the Court grants the interlocutory relief sought in the summons. It also makes an order for costs in the applicants' favour. 2. The Court further makes orders to give effect to an expedited hearing of the proceedings on a final basis. 3. The orders of the Court are therefore as follows: 1. upon the applicants giving the usual undertaking as to damages, an order that, until further order of the Court, the second respondent, Mr Max Eddine, and the third respondent, Concrete Jungle Holdings NSW Pty Ltd, by itself and its directors, contractors, servants and agents, be restrained from carrying out at the premises on the ground floor of the building at 13 Gray Street, Kogarah, being Lots 1 and 2 in Deposited Plan 770957 ("the premises") any building work: 1. relating to Complying Development Certificate CDC No C2018187 dated 10 October 2018 purportedly issued by the first respondent, Mr Alex Mullin; and/or 2. for the purpose of developing and/or using the premises as a restaurant/café, or food and drink premises. 1. that the respondents pay the applicants' costs of the application for injunctive relief; 2. that the final hearing of the summons be expedited; 3. that the matter be listed for final hearing on 20 and 21 November 2018, commencing at 10am; 4. that on or before 9 November 2018, this matter be set down for mediation before a Commissioner, or the Registrar, of this Court; 5. that each of the respondents (but not the fourth respondent if he files a submitting appearance) is to file a response to the summons on or before 29 October 2018; 6. that the applicants are to serve any notices to produce on any of respondents by 25 October 2018, with notices to produce returnable on 30 October 2018; 7. that the applicants are to file and serve any subpoenas by 25 October 2018, with such subpoenas to be returnable on 30 October 2018; 8. that the applicants file and serve their evidence in chief on or before 1 November 2018; 9. that the respondents file and serve their evidence on or before 8 November 2018; 10. that the applicants file and serve any evidence in reply, their written submissions, and any objections to the respondents' evidence, on or before 12 November 2018; 11. that the respondents file and serve their written submissions and any objections to the applicants' evidence, on or before 14 November 2018; 12. that the applicants file and serve any written submissions in reply by 16 November 2018; 13. that the parties file and serve an agreed statement of all facts not in dispute no later than 19 November 2018; 14. that the exhibits tendered on the application for short service of the summons on 22 October 2018, and those tendered on the application for injunctive relief, be returned; and 15. liberty to restore on 24 hours' notice. ********** 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: 25 October 2018