Council of the City of Sydney v Carnegie

EX TEMPORE Judgment 1This matter came before me this evening on an urgent basis. The Council of the City of Sydney (the Council) seeks urgent interim relief to restrain activities being conducted by or on behalf of Mr Carnegie, the respondent, in premises located at 262 - 270 Liverpool Street Darlinghurst. 2The premises are said to be owned by Mr Carnegie. When the matter came before me, Ms D Slimnicanovski appeared on behalf of Mr Carnegie, candidly stating that her instructions were scant. 3Shortly stated, the facts that give rise to this urgent application are set out in the following paragraphs. They are based on statements made from the Bar table by the Council's solicitor, Mr H Hawkes, as well as documents that he has tendered. 4The subject premises comprise a building formerly occupied by the First Church of Christ Scientist. The building takes the form of a neo-classical ecclesiastical building. When in use as a church, there were a number of pews in place on the ground floor. The building, together with its contents, at least those associated with its ecclesiastical use, are the subject of heritage listing under Sydney Local Environmental Plan 2012. The building and its interior had previously been listed as a heritage item under South Sydney Local Environmental Plan 1998. 5On 13 May 2011, the Council granted development consent for the adaptive reuse of the building. That adaptive reuse involved the construction within the building of what has been referred to as a "residential pod". This involved internal works within the ground floor of the building to provide a single residential unit. 6Condition 15 of the development consent related to the pews then located within the building. That condition provided: "(15) Storage of pews The existing pews planned for removal and storage, are to be numbered, recorded, carefully removed and stored within the building in locations where they will not be damaged. A copy of a plan, indicating the location and number of each stored pew, is to be submitted to Council prior to the issue of an occupation certificate." 7I am told that the plan required by that condition was provided to the Council; a construction certificate issued and work authorised by the consent completed in 2012. Pews from the former church were stored as required by the condition in a basement room. 8More recently, architects retained by Mr Carnegie sought development consent to intensify the residential user of the building by making further alterations such as would accommodate several levels of residential accommodation. That application was refused by the Council and, in January of this year, refused on appeal to this Court (Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001). 9That is where the Council's recent dealing with the building rested until about 8.30am today. At that time local residents observed church pews being removed from the building. Those observations were reported to the Council. 10The site was inspected by officers of the Council who confirmed that pews were being removed. When last observed by those officers about half of the number of pews that had been stored onsite in accordance with condition 15 appeared to have been removed. No application to modify condition 15 of the 2011 Development Consent had been made to the Council and no notice had been given to it otherwise indicating the intention or need to remove pews from the building. 11Following those observations there was discussion between those Council officers and the removalists observed to be removing pews from the building. Subsequent discussion ensued between the Council's solicitor and solicitors retained by Mr Carnegie. The explanation offered on behalf of Mr Carnegie by his solicitors was that insurance of the building would not be renewed by the present insurers while the pews remained stored in the basement. When it was that Mr Carnegie first learned of the position taken by his insurers was not stated. Nor was there provided any explanation as to why this position was now being taken when the pews had been stored in the building for at least the past 18 months during which time, I would assume, the building was insured. Nonetheless, as a statement made on behalf of Mr Carnegie, it is a matter that I do not ignore when determining whether the Council's application should be successful. 12As would be apparent from my brief recitation of the background facts, the Council relies upon the apparent breach of condition 15 of the 2011 Consent as founding its entitlement to relief under s 123 of the Environmental Planning and Assessment Act 1979 (NSW). In the submissions made before me on behalf of Mr Carnegie, it was not conceded that a breach of the condition was demonstrated. It was contended that the removal of the pews was temporary although just how "temporary" was not indicated. Moreover, the present location of the pews removed and those intended to be removed was not stated other than that they were being taken to storage premises in Fairfield, a south western Sydney suburb. The address to which the pews had been taken was not disclosed. 13In determining the Council's application for interim relief, there are two critical matters to which attention must be given. First, there needs to be identified a serious question to be tried and second I must consider the balance of convenience. Although Ms Slimnicanovski did not concede that there was a serious question to be tried, no argument was advanced as to why that was so beyond that previously identified. The difficulty in developing her submission was no doubt explainable on the basis that she had come to Court on very short notice. As stated by her, Mr Carnegie had declined to give any undertaking to refrain from further removal of pews and that was the position she sought to defend. 14The terms of condition 15 of the 2011 Consent are clear. Not only did that condition require recording and retention of pews, it also required that the pews be retained within the heritage building, albeit in an approved storage area, so that an element of the heritage significance attributed to the building remained in situ. 15In my opinion there is a serious question to be tried as to the proper interpretation of condition 15 and the obligation that it imposed upon Mr Carnegie. On the material advanced from the Bar table by Mr Hawkes, there would appear to be a strong case establishing a breach of condition 15. 16On the balance of convenience, there are several factors that require consideration. The Council offers no undertaking as to damages, a factor that Mr Carnegie submits weighs against the grant of relief sought by the Council. However, unlike the position that pertains when an interim or interlocutory injunction is sought in litigation between private parties, an undertaking as to damages will not necessarily be required where breach of a public law is involved which, if established, extends its impact beyond the particular respondent (Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1 at [29]-[31]). 17In the present case, it must be assumed that in bringing these proceedings the Council is acting in the public interest, not in respect of any private interest that it may hold. There is a clear public interest in maintaining the heritage significance of the building and its contents as well as a public interest in sustaining the integrity of a development consent. While the absence of an undertaking as to damages is relevant, the factors that I have identified do not weigh against the Council by reason of its failure to offer that undertaking. 18I also record the acceptance by the parties that the matter can return to Court within two days for further argument if, in the meantime, they are not able to resolve the immediate problem of storage of the pews, on the assumption that their storage onsite presents the insurance problem claimed by Mr Carnegie. 19Further, statements made from the bar table on behalf of Mr Carnegie do not establish that unless the remaining pews are removed from the building tonight, insurance of the building will lapse. As I have already observed, the statements made on behalf of Mr Carnegie do not explain why the claimed problem with building insurance has arisen with such urgency that removal of pews is required when they have been stored in the building for at least the past 18 months without apparent difficulty in securing building insurance. 20For these reasons I consider that the balance of convenience favours the preservation of the status quo. There should be no further removal of the pews from the building until the matter returns to Court on Thursday next when a claim for interlocutory relief can be fully argued by both parties. I therefore make the following Orders: (1)Upon the Applicant undertaking to file by 12.00 noon on 19 March 2014 a summons commencing proceedings, order that until 5.00pm on Thursday 20 March 2014 the Respondent, by himself, his servants, agents and contractors be restrained from removing pews presently stored in the building known as the First Church of Christ Scientist at 262-270 Liverpool Street Darlinghurst. (2)Direct that the Applicant serve upon the Respondent its points of claim and supporting evidence by 4.30pm on Wednesday 19 March 2014. (3)Direct that the Respondent serve his points of defence and outline statements of evidence by 12.00noon on Thursday 20 March 2014. (4)Stand over the proceedings for hearing on an interlocutory basis, unless otherwise agreed between the parties, to 2.00pm on Thursday 20 March 2014. (5)Costs reserved.