Injunctive Relief is Appropriate
17When the matter first came before the Court on 29 November 2011, orders were made for the parties to file and serve any evidence upon which they sought to rely in respect of the application for injunctive relief. Originally the notice of motion had been set down for hearing on 29 November 2011, however, after discussion with the parties, and because Ms Schmitz had only just been made aware of the application, it was agreed to defer the hearing of the notice of motion for 24 hours to enable her to obtain legal representation and to file and serve any evidence on which she intended to rely.
18Ms Schmitz does not reside at the premises and is not currently in Armidale. It has therefore been difficult for her to obtain legal representation in the short time available. It has also been difficult for her to prepare her evidence. The Court understands this, but nevertheless, it is faced with the largely unchallenged evidence of Mr Miller as to the potentially disastrous consequences of the unauthorised construction works.
19Turning to the legal principals applicable with respect to the granting of an injunction, in order to obtain an interlocutory injunction it is necessary for the applicant to establish that there is a serious question to be tried and that the balance of convenience favours the granting of the injunction. Normally the Court does not allow a preliminary trial or give or withhold interlocutory relief upon a forecast of the ultimate result of the case ( Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207 at [37] and Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 at [4]-[5]).
20Turning to whether there is a serious question to be tried, the council relies on the matters contained in the summons, in particular, whether or not consent was granted to construct the septic tank and associated stormwater infrastructure. Having regard to the evidence of Mr Miller, it would appear that there is a serious question to be tried, namely, whether such consent was necessary given the concession by Ms Schmitz that none was obtained granted.
21Turning to the balance of convenience, I note that Ms Schmitz was prepared to give an undertaking in order to remediate the current issue of stormwater runoff from the premises. The council, however, did not accept this undertaking and instead pressed the Court to make an order compelling her to rectify the problem immediately. The council was concerned that if no order was made, the remediation works would not be carried out in a timely manner.
22Given the potential deleterious effects of the stormwater runoff to, at the very least, the property at 174 Kentucky Street, and given the potential structural problems that may be associated with the new septic tank, the balance of convenience plainly favours the making of the order sought. I did not understand Ms Schmitz to be suggesting otherwise. In making the order the Court notes that Ms Schmitz is not presently in Armidale and it will be difficult for her to organise remediation works immediately. The Court is therefore willing to permit a longer period in which she is to complete these works.
23The Court is therefore prepared to exercise its discretion to grant an order to cause works to be undertaken at the premises in order to stop stormwater flowing from that property onto adjoining residences.
24The form of the order is set out below. It is effectively that a bund be constructed along the terms of that suggested by Mr Miller in his affidavit, or alternatively, that such other works as agreed to by the parties are to be carried out.
25The orders of the Court are therefore as follows:
(1) the Court notes the following undertakings given by the respondent:
(i) with the exception of the works described below in paragraph 2, Ms Schmitz, including by her servants and agents, undertakes not to carry out any further building work at 188 Markham Street, Armidale, being Lot A DP 450294 ("the premises"), until 16 December 2011; and
(ii) undertakes to permit officers of the applicant to enter the property at 188 Markham Street for the purpose of inspecting the structure the subject of the summons at the rear of the premises in order to ascertain whether it has filled with water and in order to determine its structural integrity; and
(2) the Court orders that by 5.00pm on 2 December 2011 the respondent is to construct a 300mm soil bund along the common boundary between 188 Markham Street, Armidale and 176 and 174 Kentucky Street, Armidale, commencing at the eastern end of the structure the subject of the summons at the rear of the premises, to carry stormwater into Markham Street, or such other works as are agreed to by the parties to prevent stormwater from 188 Markham Street entering neighbouring properties;
(3) the Court orders that the costs of the motion be reserved;
(4) the Court orders that the matter is stood over to 2.00pm on 16 December 2011 before the Duty Judge for mention;
(5) the Court orders that when the matter is listed before the Duty Judge on 16 December 2011 the matter is to be heard by way of telephone directions hearing; and
(6) liberty to restore on 24 hours notice.