Hooper v Port Stephens Council

Introduction 1 HER HONOUR: Before me is an ex parte application brought by Mr Stephen James Hooper who requests the following relief from the Court: 1. That Port Stephens Council stay the issue of a construction certificate to development approval granted 15/12/09 for 25 Gloncester Street, Nelson Bay, until the current development application can be reviewed by the Land and Environment Court. 2 In support of the application Mr Hooper relies on an affidavit sworn by him on 16 December 2009. The affidavit attaches various documents including: an advice from Port Stephens Council ("the council") concerning the development application in respect of a property located at 25 Gloucester Street, Nelson Bay, described as lot 2 DP 758370 ("the Property"); a letter of objection to the application; a supplementary report from the council in respect of the application and Mr Hooper's response to that report. 3 Also attached were brief extracts of the Port Stephens Local Environmental Plan 2000 ("the LEP") and an extract from the Port Stephens Council Development Control Plan 2007 ("the DCP"), together with a planning certificate issued by the council to the proponent, Mr Hallett, on 22 August 2008. 4 The development concerns the building of a three-storey house and the demolition of the existing dwelling on the Property. The development application was approved by the council on 15 December 2009. 5 Mr Hooper is partially affected by the development insofar as he will lose some of his ocean view. However, Mr Hooper says that he is bringing the application for injunctive relief primarily on behalf of his neighbour who, Mr Hooper says, will lose most of his ocean view and on behalf of the community in order to preserve the existing character of the residential location and, in particular, the amenity of the street. Finally, Mr Hooper states that he is bringing the application in order to protect the environment generally from the development. The Application is Ex Parte 6 While the proceedings are ex parte to the extent that only Mr Hooper appears before me today, the council has nevertheless been informed of the application and is aware that it is proceeding today. Its failure to appear may in part be explained by the short notice given of the application, the location of the council and the lack of suitable available legal representation given that it is the last day of the 2009 law term. 7 Mr Hallett, who Mr Hooper informs the Court is the owner of the Property upon which the development is to be erected has not, however, been notified of today's application. This is a significant matter to which I will return. 8 The application as it is currently framed does not clearly state whether or not the injunctive relief is sought permanently or temporarily. In any event, I am not inclined to grant either a permanent or temporary injunction. This is because the criteria necessary for the relief to be granted have not been met. Principles for Grant of Injunctive Relief 9 The grant of an interlocutory injunction depends on an applicant showing that there is a serious question to be tried and that the balance of convenience favours its grant. Serious Question to be Tried 10 Turning to the first limb, a serious question to be tried is an essential condition to obtaining interlocutory injunctive relief. Mr Hooper must identify the legal (which may include statutory) or equitable rights which are to be determined at a future trial and in respect of which final relief will ultimately be sought. The Court does not have jurisdiction to grant interlocutory relief where there is no legal, statutory or equitable rights that are determined (Tegra (NSW) Pty Limited v Gundagai Shire Council [2007] NSWLEC 806 at [7]). Mr Hooper has not, in my view, established that there is a serious question to be tried in relation to any alleged statutory breaches in the grant by the council of the development consent the subject of the application. 11 Mr Hooper relies on three possible legal grounds as a challenge to the granting of the development consent. Because no summons was filed along with the application for injunctive relief, these grounds were developed orally by Mr Hooper. 12 First, Mr Hooper submits that the council has breached cl 16.1 and 2(b) of the LEP. Clause 16.1 states: The residential "A" Zone is characterised by one and two storey houses and dual occupancy housing. Townhouses, flats and units up to two storeys may occur throughout the zone. Dwellings may also be erected on small lots in specially designated subdivision. Small scale commercial activity is compatible with a residential neighbourhood and a variety of community uses may also be present in the zone. 13 Clause 16.2 states (emphasis added): 16.2 Objectives of the zone

(e) to ensure that the design of residential areas takes into account environmental constraints including soil erosion, flooding and bushfire risk. 14 In my view, a fair reading of the terms of the LEP, and in particular cl 16, demonstrates that they do not prohibit the erection of dwelling houses that are greater than two storeys. The council must, of course, have regard to the effect of the development on adjoining land by way of "shading, invasion of privacy, noise and the like" and consider whether or not the development is "unacceptable" prior to the granting of consent. But provided it takes these matters into consideration, it is not prohibited by the LEP from granting consent to dwellings that are greater than two storeys. 15 The evidence demonstrates that the general inconsistency of the development with the public interest of only having one and two storey dwellings in the zoned area was recognised and considered by the council. However, the council noted that while the residential area comprises mainly of one and two storey buildings, the development adjoins a three storey duplex and that there are numerous examples of three storey structures in the street. The impact of the visual amenity of the proposed development was also expressly considered by the council. Moreover, there was evidence of only one other objector, in addition to Mr Hooper, to the development. Thus I do not accept, as Mr Hooper asserts, that the council has breached the LEP such that there is a likely error in the granting of consent that equates to a serious question to be tried. 16 Second, Mr Hooper relies upon cl B6.C46 of the DCP which states that: Development in the residential 2(a) zone must not exceed 2 storeys. Council may only approve loft spaces and dormer windows if they do not significantly alter roof design, roof pitch or building bulk and do not cause adverse impacts on the privacy or amenity of neighbouring dwellings. 17 The development appears to be within the residential 2(a) zone. While this condition is written in mandatory language, the fact that the council has approved a development that does not accord with a condition of a DCP does not, of itself, render the consent invalid. Without more and in light of the evidence before me that indicates that the council did consider the impact of the development on the privacy and amenity of neighbouring dwellings, I do not consider that Mr Hooper's second ground of challenge is sufficiently suggestive of error to the extent that it raises a serious question to be tried. 18 Third, Mr Hooper complains that the development consent granted, the land bought and the application lodged is inconsistent with the planning certificate. 19 The planning certificate, however, merely provides information on how a property may be used and identifies the limits on its development. The certificate contains information the council is aware of through its records and environmental plans. The details contained in the certificate are limited to that required by s 149 of the Environmental Planning and Assessment Act 1979. The certificate does not itself impose any duties or obligations on the council. A development application that has been approved which is not strictly in conformity with the matters contained in the certificate will not render the development invalid. In my view, therefore, this third ground of challenge also does not raise a serious question to be tried. 20 For these reasons, in respect of the three bases of potential challenge put before the Court, I do not find that a serious question to be tried has been established by Mr Hooper. Balance of Convenience 21 While this is sufficient to dispose of the application, for completeness I have also considered the factors going to the balance of convenience. 22 First, in my view, Mr Hooper will not suffer irreparable injury if the injunction is not granted. Mr Hooper can always commence a challenge to the development approval process by filing a summons in the ordinary way more fully articulating his grounds of challenge. Failure in relation to this application will not preclude him from doing so in the future. 23 Furthermore, the existing house has not been demolished and development has not commenced. Even if development is commenced upon the issuing of the construction certificate, what is built can always be demolished if the approval process is revealed to be invalid. There is, therefore, no irreparable harm to the environment, or to Mr Hooper, if the injunction is not granted today. 24 Second, I am similarly not convinced on the material before me that there is any urgency involved that cannot wait until a summons has been filed properly articulating Mr Hooper's challenge to the development approval process. 25 Third, I agree that damages are not an adequate remedy to the extent that Mr Hooper's visual amenity and that of his neighbours will be affected by the development. However, this is but one factor that I must consider and it must be balanced against the factors mentioned above and below. 26 Fourth, I must consider whether any prejudice may result to third parties by the granting of the injunctive relief. The prejudice to Mr Hallett is likely to be considerable. Mr Hallett, as I have previously stated, is the owner of the Property. It is his development. I am informed by Mr Hooper that in preparation of commencement he has removed the existing tenant and cut power to the Property. He is, by all accounts, ready to proceed with the development. He has not, however, been informed of the proceedings today, and therefore has not had the opportunity of being heard on matters that clearly affect his interests. This factor strongly militates against a grant of relief. 27 Fifth, the period of time before any final hearing is also a factor to which I must have regard. As stated above, no summons seeking final relief has been filed by Mr Hooper in the Court. Therefore, were I to grant injunctive relief, even on a temporary basis, this relief would currently be infinite. In my view this would not be fair to Mr Hallett or the council. 28 Sixth, I note that there has been no undertaking as to damages offered by Mr Hooper in exchange for the injunction. The reason for this is, quite understandably, that Mr Hooper is a pensioner and simply could not afford to honour the undertaking if required to do so. The failure to offer an undertaking for damages is, however, not fatal to the application, particularly in public interest or environmental proceedings where it is less appropriate to demand that an undertaking be given (Tegra at [29]-[31]). 29 Seventh, there is certainly no delay or other equitable disentitling conduct that I ought to have regard to with respect to Mr Hooper's conduct in bringing the application. It was brought promptly upon the consent being granted. 30 Eighth, with respect to the public interest, I consider that there is a public interest in Mr Hooper bringing this application. His concern for the environment and for the amenity of his residential area is genuine and legitimate. However, the concept of public interest is multi-faceted. Whilst there is a public interest in the proper enforcement of public welfare statutes such as planning and environmental laws, there is also a public interest in the reliable and predictable administration of these laws from the perspective of the body tasked to discharge its regulatory functions in accordance with them. Furthermore, there is a public interest in those who have been granted development consents, such as Mr Hallett, being able to take the benefit of them. 31 On the whole, while I find that there is a public interest in protecting the environment, I nevertheless find that the public interest in this application favours Mr Hallett, as the recipient of the consent, and the council in the orderly administration of its processes. 32 Finally, I turn to the utility of granting the injunctive relief. In the present case, there is no evidence before me that the body or entity who will be issuing the construction certificate, which is of course against whom the injunctive relief is sought, is in fact the council. It may be that a private assessor is issuing the certificate in which case the granting of the relief sought would be futile as it would only bind the council. 33 Taking each of these factors into account and giving them the appropriate weight that they deserve, the balance of convenience does not favour the granting of an interlocutory injunction. Orders 34 I therefore dismiss the application.

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