BBB Constructions Pty Limited and Anor v Catherine J Burn & Ors

CATCHWORDS : Statutory interpretation - entry and occupation of development site by State agencies under State Emergency and Rescue Management Act - whether such occupation exclusive - whether power to exclude developer from site and if so the extent of that power - whether developer entitled to possession of development site.

State Emergency and Rescue Management Act 1989 LEGISLATION CITED : State Emergency and Rescue Management Amendment (Botany Emergency Works) Act 2008 Occupational Health and Safety Regulations Uniform Civil Procedure Rules

CASES CITED : Coco v The Queen (1993 - 1994) 179 CLR 427 at 436

BBB Constructions Pty Limited - First Plaintiff Baseline Constructions Pty Limited - Second Plaintiff PARTIES : Catherine J Burn - First Defendant John Lee - Second Defendant New South Wales Police Force - Third Defendant

COUNSEL : Mr M Dempsey SC/Mr N Nicholls - Plaintiffs Mr J Giles - Defendants

SOLICITORS : Colin Biggers & Paisley - Plaintiff Minter Ellison - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30036/2008 - BBB CONSTRUCTIONS PTY LIMITED & Anor v CATHERINE J BURN & Ors (No 2)

JUDGMENT 1 HIS HONOUR: Nature of proceedings and relief sought This judgment should be read with my judgment of 9 April 2008 ([2008] NSWSC 356). 2 The plaintiffs rely upon an amended summons filed in court on 17 April 2008. That summons expands the relief sought in the original summons, as a result of subsequent developments. It also adds as a plaintiff the first plaintiff's head contractor on the site, Baseline Constructions Pty Limited (hereinafter called "Baseline"). 3 At this hearing the plaintiffs only pressed for the relief sought in paragraphs 6, 7, 8, 10 and 11 of the amended summons. Those paragraphs provided: "6. A declaration that the defendants acted unlawfully and in breach of authority in excluding the plaintiffs from the whole of the Botany Site on and from the 8 April 2008. 7. A declaration that for the purpose of carrying out the works the subject of the Direction and the "emergency works" pursuant to Section 11 of the State Emergency and Rescue Management Amendment (Botany Emergency Works) Act 2008 ( Amending Act) the second defendant is only entitled to such access as is reasonably required to perform the "emergency works" and beyond that is not entitled to possession or exclusive possession of the Botany Site. 8. A declaration that for the purposes of carrying out the works the subject of the Direction or the "emergency works the second defendant is only entitled to use the area of the Botany Site depicted on the attached plan and marked "Area X". 10. A declaration that subject to the orders 7, 8 and 9, the plaintiff is entitled to exclusive possession of the whole of the Botany Site. 11. An order that the first and second defendants immediately deliver up possession of the Botany Site to the plaintiffs subject to the second defendant's entitlement to: (a) Use "Area X" as referred to in Order 8 and (b) Enter "Area X". 4 The amended summons had annexed to it a plan of the Botany Site with an area abutting Botany Road marked as "Area X" and with the balance of the site designated as "Area Y". 5 In submissions the plaintiffs put forward a set of draft orders which they wish the court to make (exhibit A). Those orders comprised a refinement of the declarations and orders sought in the summons. It was these orders which formed the focus of the present dispute between the parties. 6 The orders sought were: The Court orders and declares as follows:- 1. Declares that, without prejudice to the plaintiffs' challenge to the validity of it or the Authority dated 7 April 2008 (referred to in paragraph 4 of the Amended Summons) otherwise, the direction issued by the first defendant to the second defendant dated 4 April 2008 (the "Direction") purportedly pursuant to section 61(1)(c) of the SERMA does not entitle the first and second defendants as against the plaintiff to a right of possession to any part of or the whole of the Botany Site. 2. A declaration that, subject to Order 5, the Authority does not entitle the first and second defendants as against the plaintiff to a right of possession of any part of or the whole of the Botany Site. 3. A declaration that, subject to Order 5, upon the proper construction of section 12 introduced by the State Emergency and Rescue Management (Botany Emergency Works) Act 2008 (the "Amending Act"), the second defendant as against the plaintiff is not entitled to possession of the whole of the Botany Site. 4. A declaration that, subject to Order 5, the plaintiffs are entitled as against the second defendant to possession of the whole of the Botany Site. 5. An order that the defendants deliver up possession of the Botany Site to the plaintiffs save that for the purposes of s 12 introduced by the Amending Act the second defendant, its servants, agents, employees and contractors are entitled: 5.1 enter upon the Botany Site for the purpose of having access to the area marked X on the plan attached hereto and marked "A" (the "Plan"); and 5.2 perform the works the subject of the Direction or the "emergency works" as that expression is defined by section 10 introduced by the Amending Act, such works to be carried out within the area marked "X" in the Plan attached hereto, being an area comprising 55 metres in width along the Botany Road frontage and 20 metres in depth from the Botany Road frontage. 6. Without limitation of the Declaration in 5 above, orders that the plaintiffs (by their servants, agents, contractors or consultants) are entitled to enter and have access to the area marked "X" on the Plan for the purpose of: 6.1 monitoring the emergency works by visual inspection, video or other recording device; 6.2 monitoring or investigating the condition of the site, or 6.3 taking test samples; provided that the plaintiffs 6.4 provide the first defendant 24 hours written notice of its intention to enter and access area "X", such notice to identify: (i) the persons who are to enter area "X". (ii) the time at which entry and access is to be exercised; (iii) the nature of any testing to be undertaken. (iv) the location of such testing. 6.5 does not materially interfere with or impede the progress of the emergency works or the access of the second defendant's officers, contractors or consultants to area "X" on the Plan for the purpose of performing the emergency works. 7 Counsel for the defendants gave only qualified consent to the matter proceeding on those issues. His reason for not fully supporting the court deciding those issues separately was that the defendants had not had adequate time to consult their experts and to provide a response to some of the factual and opinion material in the affidavits relied upon by the plaintiffs. Otherwise he agreed that the question of the defendants' right to exclude the plaintiffs from the Botany Site was a matter which could be decided as a separate issue. 8 Given the urgency of the matter from the plaintiffs' point of view, I decided pursuant to UCPR rule 28.2 to hear the matters set out above as a separate issue. As well as the urgency associated with the matter, I formed the opinion that most of the plaintiffs' expert material was not concerned with those questions. I accept that the defendants were not in a position to argue about whether the part of the site designated "Area X" was sufficient to enable them to carry out the emergency works. This did not prevent the issues being argued since the defendants' primary position was that they needed to have access to the whole of the Botany Site and that the plaintiffs should be wholly excluded from it.

Factual background 9 The following recital of facts picks up from the point reached in the previous judgment (see para [21] of that judgment). 10 At some time prior to 8 April the second defendant retained Ward Civil and Environmental Engineering Pty Limited (hereafter called "Ward") to perform the emergency works on the Botany Site. Connell Wagner are the structural engineers and Coffey Geotechnics are the geotechnical engineers engaged by the second defendant. 11 The defendants and Ward occupied the Botany Site on 8 April and have continued to do so until the present time. The plaintiffs and their representatives have been excluded from the site since that date. Requests by senior personnel from Baseline to enter the Botany Site have been refused. There remains on the Botany Site plant and infrastructure which belongs to Baseline, but which is now being used by Ward. 12 There has been no consultation between the plaintiffs on the one hand and the defendants and Ward and their experts on the other. Although this is not conceded by the defendants, it seems clear that the emergency works have not proceeded as efficiently and expeditiously as they might because of this lack of consultation. The plaintiffs' intimate knowledge of the Botany Site, particularly in relation to such matters as approved excavation levels and the water table, would have enabled the emergency works to proceed more smoothly had the plaintiffs been consulted. Not only were the plaintiffs not consulted, they have been excluded from the decision making processes. This has meant that decisions have been made by the defendants in relation to the carrying out of the emergency works without taking into account the implications for the plaintiffs' plans for the development of the site. 13 A considerable amount of fill has been brought by Ward onto the Botany Site from external locations. As a result of observations from outside the site, the plaintiffs have concerns that some of this fill is contaminated. The defendants deny that such is the case but this issue remains controversial between the parties. 14 In order to enable trucks and excavators to gain access to the Botany Site, Ward has constructed a large earth ramp extending from the corner of Wyndham Street into the site. The plaintiffs contend that while this ramp remains it will significantly impede the development of the site. The plaintiffs contend that access to the Botany Site can be achieved by other means which would remove that problem. The defendants have not had a chance as yet to respond to that contention. 15 Even with the presence of the ramp, the plaintiffs say that they need access to the Botany Site. Their reasons are as follows: they wish to carry out repairs to infrastructure and walls which have been damaged by Ward while performing the emergency works. They wish to monitor for contamination of the fill which is brought onto the site. They are concerned that additional rock anchors might be installed along the secant wall adjoining Botany Road in such a way as to significantly interfere with the construction of the development. The plaintiffs also want such rock anchors to be placed in positions to which access can be gained in the future for their removal. 16 The plaintiffs have identified works which they could perform on the Botany Site in furtherance of the development which would not interfere with the emergency works. They are unable to do this work while they are excluded from the site. One of the problems for the plaintiffs is the costs which they are incurring because of delays in the development proceeding. 17 A particular problem for the plaintiffs is that on 14 April they were contacted by their financier, the Commonwealth Bank of Australia (CBA). CBA advised the plaintiffs that because they had been excluded from the site and because the development works had ceased, they might be in breach of their loan agreement. One of the remedies which the bank is considering is the termination of the loan facility. The plaintiffs say that this will have the effect of bringing the project to an end and will give rise to losses and claims for damages in excess of $32.5 million. 18 In relation to the emergency works, the berm constructed to support the retaining wall along Botany Road was completed on 17 April. Botany Road was reopened on 16 April. The next step in the emergency works is for the structural designers and geotechnical engineers retained by the second defendant to inspect and test the wall in order to formulate a revised design to ensure that the wall can support the load it carries. I infer that this will involve the installation of further rock anchors. At the hearing the defendants' conservative estimate of time for these works to be completed was 16 weeks. 19 In the affidavits relied upon by the defendants there are statements by the deponents, being a civil engineer and a senior project manager, to the effect that there would be considerable potential for conflict if the plaintiffs were allowed access to the site. It is asserted that under the Occupational Health and Safety Regulations there is no provision for a shared role between head contractors. Reference is made to access and traffic management, the movement of people, vehicles, plant, materials and equipment on site and the use of such facilities as the toilets and washing facilities. Mr Bradley from the Department of Commerce asserts that such conflict would prevent each head contractor from discharging its responsibilities in a co-ordinated manner. He also says that the presence of Baseline on the Botany Site was likely to increase the risk of injury for persons undertaking work on the site. 20 An application by the plaintiffs at 3pm on Friday, 18 April to adduce further evidence was refused. The defendants opposed the application on the basis that they could not meet the new evidence. 21 The other significant event to have occurred since I last dealt with this matter is the enactment of the Amending Act. The bill passed both houses on Friday, 11 April but it is not clear when it was assented to. It was common ground between the parties, however, that the Amending Act applies to this matter. The Amending Act defines the "Botany Site" as "the area bounded by and including Botany Road McEvoy Street Retreat Street and Wyndham Street Alexandria", ie the whole of the site. 22 The "Emergency Works" are defined to mean: "The carrying out of the following works on the Botany Site: (a) the shoring up (including re-anchoring) of retaining or other walls that support premises or roads in the Botany Site, (b) if the Director-General considers it necessary to do so, grouting behind the walls to reseal them against the ingress of water (c) other stabilisation work on the site (including the construction of progressive removal of an earth berm and any stabilising work required as a result of the collapse of any such wall), and including any preparatory examination survey excavation or other thing done for the purposes of carrying out those works." 23 In relation to access to the site, clauses 11 and 12 provide: "11(1) The emergency works are authorised and required to be carried out by the Director-General. (2) The Director-General may engage persons to carry out the emergency works. (3) The contractors may include a person who is the owner or occupier of land in the Botany Site or who has been engaged by any such owner or occupier to do work on the site. 12(1) The Director-General, the contractors, police officers and any other persons authorised by the Director-General or a senior police officer may enter the Botany Site for the purposes of carrying out (or supervising or assisting in the carrying out) of the emergency work. (2) Notice of intention to enter the Botany Site is not required to be given to anyone. (3) Sections 61C-61E of this Act apply to any such entry in the same way as they apply to entry under section 61 of this Act. (4) Section 62A of this Act extends to the exercise in good faith of functions under this Part by the Director-General, the contractors and others, and so applies as if the happening that constitutes the emergency were the happening that caused the damage that requires the carrying out of the emergency work."

Submissions and consideration 24 The plaintiffs' primary submission is that neither the SERM Act nor the Amending Act in terms authorises the exclusion from the Botany Site by the defendants of the plaintiffs. They submit that the only power to exclude is in s 60L and it is common ground that the precondition for the operation of s 60L has not been established. It is also common ground that the defendants do not rely upon s 60L. 25 The plaintiffs submit that they have a right to possession of the Botany premises. Their exclusion by the defendants consequently involves the deprivation of a fundamental right which they have under the common law to occupy the Botany site. For either the SERM Act or the Amending Act to authorise that result there must be a clear provision to that effect in either or both the Acts. The plaintiffs rely upon the statement of principle in Coco v The Queen (1993 - 1994) 179 CLR 427 at 436: "Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. " 26 The plaintiffs accept that under the Acts the defendants have authority to enter and occupy the Botany Site. They submit, however, that this authority does not extend to excluding the plaintiffs from also occupying the site. This is particularly so since the emergency works are essentially restricted to that part of the site adjoining Botany Road which leaves the majority of the site unaffected by the defendants' activities. 27 The plaintiffs submit that the correct characterisation of the legislation is that it does not contemplate the usurpation of the right to occupy the relevant site by those entitled to possession but authorises the entry of specified persons onto the site to carry out specified tasks. There is nothing in the legislation, either expressly or impliedly, which authorises the expulsion and exclusion from the site of those otherwise entitled to possession. 28 The defendants' response is that the Amending Act defines the Botany site as the whole of the development site not just that adjoining Botany Road and that the emergency works as defined are not restricted to any particular part of the Botany site but extend to the whole site, albeit with an emphasis on the walls. Accordingly the granting of access to the site to carry out the emergency works not only includes a power to enter and occupy the Botany site, but also includes a power to exclude those presently occupying the site. In other words there is an incidental power to exclude. The incidental power arises because it would not be possible to perform the emergency works on the Botany site without having such a power. In that regard the court's attention was drawn to the fact that clause 11 of the Amending Act not only gives a power to carry out the emergency works but imposes a requirement that those works be carried out. 29 As an issue of fact the defendants submit that Ward cannot carry out the emergency works as required by the Amending Act unless it not only has access to the whole of the Botany site but Baseline and the plaintiffs are excluded from it. This submission is based on the assertion of Mr Bradley [19] that it is not possible for Ward and Baseline to both occupy the Botany site and to perform work thereon safely. 30 I accept that the Acts authorise the entry onto the Botany site by the defendants and their contractors for the purpose of carrying out the emergency works. I accept that in terms the Acts do not authorise the exclusion from the Botany site of the plaintiffs. I accept that the Acts include an incidental power to exclude the plaintiffs from parts of the Botany site. I do not accept as a matter of statutory interpretation that the Acts necessarily exclude the plaintiffs from the whole of the Botany site. The incidental power only extends to excluding the plaintiffs from that part of the Botany site where the emergency works are being carried out. 31 I have reached this conclusion because I cannot see how from a practical point of view, the defendants could carry out the emergency works required under the Amending Act without having a power to exclude from those specific locations where the works were being carried out, anyone (including the plaintiffs) who might get in the way or interfere with the efficient completion of those works. However, I do not see why the power to exclude would extend beyond an area necessary to be occupied by the defendants and their agents in order to effectively carry out the emergency works. For example, I can see no basis for excluding from the whole of the Botany site senior executives of the plaintiffs when the site contains plant and infrastructure which is the property of Baseline. In other words I interpret the defendants' power to exclude as being no greater than that which is necessary to allow the emergency works to be carried out effectively (and therefore without interference or interruption). 32 It follows that I accept the characterisation of the legislation put forward by the plaintiffs, ie that the Acts envisage the owner, or those otherwise entitled to possession, remaining in possession of a site but being obliged to allow the Director-General and his contractors entry to perform emergency works and to allow those contractors to occupy so much of the site as is necessary to enable them to perform those works but no more. As I have indicated, that power to occupy and perform emergency work carries with it an incidental power to exclude persons from the specific locations on site where emergency works are being carried out. Once those emergency works have been carried out, however, the incidental power would not extend to the excluding persons from those locations unless those persons were likely to interfere with or in some way reduce the effectiveness of the emergency work. 33 That, of course, answers only part of what is at issue between the parties. The remaining question is really one of fact and degree. It is the question of how much of the Botany site needs to be occupied by Ward to perform the emergency works and therefore to what extent, if at all, Baseline and the plaintiffs should be excluded from that part of the site. 34 The plaintiffs submit that it is not necessary for the defendants and their contractors to occupy the whole of the Botany site. They submit that the evidence makes clear that the focus of the emergency works is the wall and berm adjoining Botany Road. They submit that the defendants should be restricted to that part of the site and that they should be allowed to carry out development work associated with their project on the rest of the site. They accept that such development work must not interfere with the carrying out of the emergency works. 35 Although the plaintiffs are of the opinion that the earth ramp constructed by the defendants and running from Wyndham Street has unnecessarily complicated the development work, they are prepared to accept its presence and to perform other work on the site which neither interferes with it nor the emergency works. 36 The plaintiffs point to the fact that Botany Road was opened on 16 April together with the completion of the berm adjoining Botany Road as an illustration that the immediate emergency has now been largely addressed and that the only works to be carried out by the defendants involve a consolidation of the work which has already been done, ie the affixing of rock anchors to ensure the stability of the Botany Road wall. 37 The plaintiffs refer to the intervention of the CBA and that the defendants may be in occupation of the Botany site for up to sixteen weeks. They submit that unless they are allowed to reoccupy the Botany site, or at least part of it, they will lose their finance, the project will be aborted with consequential job losses and they will suffer losses of millions of dollars, not only from the failure of the project but because of unfulfilled contracts and sub-contracts. 38 The defendants submit that they need to occupy the whole of the Botany site. They point to the possibility that problems might arise in relation to the other walls and they specifically refer to a leak which has appeared in the Wyndham Street wall. The leak in the Wyndham Street wall, of course, is controversial in that the plaintiffs' contend that this was a problem caused by Ward in excavating too deeply beneath the Wyndham Street wall in order to strengthen the berm supporting the Botany Street wall. 39 As indicated, the other matter relied upon by the defendants is that it will be impractical to have two head contractors on site performing different kinds of work, ie Baseline and Ward. Ward would be performing the emergency works, whereas Baseline would be trying to carry out development work associated with the project. The defendants referred the court to photographs of the emergency works and the Botany site to illustrate that the site is not sufficiently large to enable employees of Ward and Baseline to work together without difficulties arising, particularly safety considerations. 40 In essence they submit that it is simply not practical to have Baseline and Ward occupying the Botany site and that consequently the court should not make such an order. They also point to the likelihood that such a situation would give rise to conflicts on site which will again require the intervention of the court. 41 In relation to that submission, I have been troubled in these proceedings by the somewhat highhanded approach of the defendants. Given that the ultimate purpose of the legislation and subsequent entry and occupation of the Botany site was to deal with the emergency as effectively and as quickly as possible, it is extraordinary that no attempt to consult or co-operate with the plaintiffs occurred after entry. This, of course, was contrary to the recommendation of Mr Wilkins from the Department of Commerce to the Department of Premier and Cabinet of 4 April 2008 (see para [16] of previous judgment). 42 Even if it were necessary initially to occupy the whole of the Botany site it was never necessary, or for that matter permissible under the legislation, to exclude senior executives of the plaintiffs from the site by the use of security guards. 43 It is also clear and was implicitly conceded in submissions, that the defendants have little regard for the very real financial problems confronting the plaintiffs and are not prepared to co-operate or assist to alleviate same. I can see no benefit for anyone if the development project collapses. Whereas the defendants' approach may have been an appropriate response when the focus was on re-opening Botany Road and protecting the surrounding properties which was the position on 7 April, it is not an approach which is appropriate at the present time when those objectives have been largely achieved. Without wishing to sound too sanctimonious, now that the emergency situation has been stabilised, co-operation to complete the emergency without unnecessarily delaying the development project, should be the focus of both sides. 44 As indicated, the legislation did not authorise the defendants to exclude senior executives of the plaintiffs from entering the Botany site unless those persons were likely to interfere with the carrying out of the emergency works. There is no evidence to that effect nor has any submission been made to that effect. 45 The plaintiffs have persuaded me that it is not necessary for the defendants and Ward to occupy the whole of the Botany site in order to carry out the emergency works. They have not satisfied me, however, that a division of the Botany site into sectors such as "Area X" and "Area Y" provides an adequate solution to the dispute. Such a division into sectors has no regard to the requirement for both workforces to have access to toilet and ablution facilities and other joint infrastructure on site. I am also mindful of the defendants' complaint at the commencement of this application that they did not have enough time to respond to the plaintiffs' factual evidence on this issue. 46 Accordingly, although the plaintiffs have generally succeeded in their submissions as to how the Act should be interpreted and applied, I find that I am not able to make the orders sought by them. Those orders largely depend upon a division of the Botany site into "Area X" and "Area Y". The best I can do on the limited evidence available is to make orders in general terms allowing the plaintiffs to re-enter the Botany site and to carry out work in relation to their development project provided that such work does not impede the carrying out of the emergency works by the defendants and Ward. 47 I make the following declarations and orders:

(1) A declaration that subject to declaration 2, the plaintiffs are entitled to exclusive possession of the Botany site.

(2) A declaration that for the purpose of carrying out the works, the subject of the direction dated 7 April 2008 and the "emergency works" pursuant to clause 11 of the Amending Act (the works), the defendants are entitled to such access as is reasonably required to perform the works and are not entitled to exclusive possession of the Botany site.

(3) An order that the defendants deliver up possession of the Botany site to the plaintiffs, save that pursuant to clauses 11 and 12 of the Amending Act, the second defendant, its servants, agents and contractors are entitled to enter upon the Botany site for the purpose of performing the works.

(4) An order that the plaintiffs do not materially interfere with or impede the performance of the works or access by the second defendant's servants, agents and contractors to those locations in the Botany site where the works are being performed.

(5) I reserve the question of costs. **********

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