Kogarah City Council v Armstrong Alliance Pty Ltd

Ex tEMPORE Judgment 1Kogarah City Council ("the Council") commenced Class 4 proceedings yesterday by summons seeking declaratory and injunctive relief against the respondent in relation to the carrying out of development at 19 Elizabeth Street, Allawah otherwise than in accordance with development consent 242/06 granted on 16 November 2006. 2The Council also sought an interlocutory injunction that the respondent be restrained from carrying out any further building works on the land until further order. 3The summons and the application for an interlocutory injunction were returnable today. 4At the hearing today the respondent, by its solicitor, gave an undertaking in terms of an order the Council had issued under s 121B of the Environmental Planning and Assessment Act 1979 to the respondent on 21 December 2011, namely, that it would immediately cease all construction works at Lot 36 DP 4724 being 19 Elizabeth Street, Allawah, which are associated with the construction of a residential flat building. 5The Council accepts that, with that undertaking to the Court, there was no further need to press the Court for an interlocutory injunction. 6The parties agree that the Class 4 proceedings should be adjourned to the new term, before the Class 4 List Judge on Friday 3 February 2012. 7Both parties, however, seek their costs of today's application. The Council submits it should have an order for costs because, first, it achieved substantial success in that the respondent gave an undertaking to the same effect as the interlocutory injunction the Council had sought; secondly, there was a serious question to be tried that building work was being carried out otherwise than in accordance with the development consent (being the issue in the substantive proceedings); and thirdly, there was evidence that the respondent threatened to continue to carry out building work in breach of the s 121B order. 8The third submission was founded on the affidavit and oral evidence of Mr Paul Cox, a Building and Compliance Co-ordinator with the Council. In his affidavit, Mr Cox said he had had a conversation on 21 December 2011, after the issue of the s 121B order, with the respondent's solicitor. In that conversation Mr Cox had said: "Your client needs to stop those works forthwith until the non-compliances with the approved plans have been resolved." 9The respondent's solicitor said: "Wouldn't it be enough if they stopped further works at the third floor at the rear? Council better be careful. My client might sue the Council for damages otherwise." 10Mr Cox replied: "That would not be sufficient in my opinion." 11Mr Cox also gave oral evidence that he had visited the site on 21 December at about 2.00pm to serve the s 121B order. He had been directed by workmen on the site to a person called Bill. Bill said to Mr Cox that Mr Cox should deliver the s 121B order to the respondent's business address. Mr Cox also said he visited the site on 22 December at about 10.15am in the morning. Mr Cox said that it was raining and there was no evidence of workmen or work outside the building. Mr Cox did not enter the premises as it had a security fence which was locked. Mr Cox said he heard sounds of a mechanical drill or machinery inside. 12The Council submits that this evidence of Mr Cox supports the conclusion that there was a threatened or apprehended breach of the s 121B order. 13The respondent submits that, first, the Council did not need to move the Court for interlocutory injunctive relief in light of the Council having already given, on 21 December, the s 121B order to the respondent which achieved the same effect. Secondly, there was not sufficient evidence to support a conclusion that there was a threatened or apprehended breach of the s 121B order. The evidence of Mr Cox does not establish that threatened or apprehended breach. Indeed, the statement by the respondent's solicitor that the respondent might seek damages against the Council is only consistent with the respondent stopping work in compliance with the s 121B order. No damages could be sought if work did not cease. Thirdly, the respondent's willingness to undertake to cease work as required by the s 121B order is not a surrender to the Council's application for interlocutory relief. The two processes, the s 121B order and a court injunction, are parallel means of enforcement. 14In my opinion, the Council should pay the respondent's costs of the application for interlocutory relief. 15First, the Council had already elected to take action to restrain the respondent from carrying out development otherwise than in accordance with the development consent by issuing the s 121B order on 21 December 2011. That order had the force of the law. It is an offence to fail to comply with a s 121B order. It was unnecessary for the Council to move the Court for interlocutory injunction to the same effect as the s 121B order the Council had issued only two days previously. It is not a proper use of an application for an interlocutory injunction to extract an undertaking from a person restrained by a s 121B order that they will comply with the s 121B order. 16Secondly, the evidence does not establish an actual, a threatened or an apprehended breach of the s 121B order. The s 121B order had only been served by the Council in the afternoon of 21 December 2011. Mr Cox said he spoke to a person at the site when he sought to deliver the s 121B order who said that it needed to be delivered to the respondent's business address. This is not a statement that the respondent will not comply with the terms of the s 121B order just being served. The fact that the respondent's solicitor in a telephone conversation with the Council later that day asked a question as to whether it would be enough for the respondent to stop works on that part of the building that might be otherwise than in accordance with the development consent is not evidence that the respondent would be carrying out those works. Mr Cox answered the question by saying that it would not be enough. Mr Cox did not say that the respondent's solicitor then threatened that the respondent would do what had been raised in the question and no inference can be drawn from the omission to say anything in response to Mr Cox's statement that stopping part of the works would not be enough. 17There is also some force in the respondent's submission that the statement that the respondent might sue the Council for damages is only consistent with the respondent ceasing works as required by the s 121B order and thereby suffering loss which could be the subject of an action for damages. 18The evidence of Mr Cox on his site visit on 22 December is equivocal. No work was proceeding outside, including on the third floor at the rear. The evidence that Mr Cox heard sounds of machinery within the building does not establish that the respondent was carrying out building works contrary to the s 121B order. 19In these circumstances, I consider that the Council has not established an actual, a threatened or an apprehended breach of the s 121B order which would justify making an application for interlocutory relief to restrain that breach. 20I should note also that a breach of the s 121B order was not sought as final declaratory relief in the summons. Ordinarily, interlocutory injunctive relief will not be granted to restrain a breach not sought in the originating process. 21In these circumstances, I consider the Council should pay the respondent's costs of the application for interlocutory injunctive relief today.