Lane Cove Council v Ross

Mr Ross Makes a Late Appearance 14Approximately 15 minutes after the Court adjourned the proceedings, I received a telephone call in chambers from the Registry indicating that Mr Ross was now in the Court precinct and wanted to bring the matter before the Court. Fortunately, Mr Griffiths, the solicitor representing the council, was in the Registry at the time and did not oppose the matter being relisted before me. The Court therefore agreed to have the matter relisted immediately. 15Mr Ross sought a vacation of the orders that had been made by me earlier that morning in his absence and applied for the dissolution of the injunction granted by Craig J and continued by myself. 16In support of his application he relied on an unfiled affidavit affirmed by him on 12 July 2012. At the same time Mr Ross handed the original of his affidavit to the Court, he served a copy of it on the council. 17The text of the affidavit comprised nine pages and annexed to the affidavit was a copy of the s 96 application, several photographs of the works undertaken at the premises and correspondence passing between himself and the council. 18Significantly, the affidavit contained an admission that he had carried out construction work at the premises other than in conformity with the original development application and the consent granted pursuant to that development application. 19Mr Ross justified these variations on the basis that: All changes are contained within the approved building footprint and height envelope and would ordinarily be approved by council under existing guidelines. 20The reference to "existing guidelines" was a reference to the "Councils [sic] DCP and Building Guidelines". No further details were given by Mr Ross in this regard. 21The affidavit went on to state that the s 96 modification application would effectively remedy the "technical" breaches of the consent. 22Pursuant to questioning by the Court, Mr Ross orally admitted, on at least two occasions, that some of the work undertaken by him was in fact contrary to the development consent. 23Mr Ross further deposed in his affidavit that the cost of any delay in the construction of the dwelling would include "$200/week for scaffold hire alone", penalties for contractual delays and "formwork on site" and loss of rental income of "at least $1500/week". No information was provided by Mr Ross to verify these estimates. 24The council opposed the vacation of the earlier orders and the application to dissolve the injunction primarily on the basis that Mr Ross had admitted to having breached the consent and because, in its opinion, in its current form the s 96 modification application would not, even if approved by the council, rectify the breaches of the consent detailed in the affidavit of Mr Moore sworn 28 June 2012, which was read before Craig J on 6 July 2012. 25More generally, the council objected to the application on the basis that it had only just been served with the affidavit of Mr Ross and it required time to seek instructions as to its content and to respond to it by filing evidence in reply.

The Injunction is Continued 26I accept the council's submissions. Having said this, however, I note the potential commercial prejudice that the injunction is causing Mr Ross, as outlined by him in his affidavit. 27Given Mr Ross' admitted breach of s 76A of the EPAA and given the prejudice that will flow to the council if Mr Ross' application is argued in full today, but nevertheless having regard to the prejudice to Mr Ross if his application is subject to a lengthy delay, the balance of convenience favours the continuation of the injunction, but only for a limited period of time. 28I therefore propose to continue the injunction in identical terms to those ordered by Craig J on 6 July 2012, save as to duration. Accordingly, the injunction shall remain in place for a further week and a half in order to prevent any further breaches of the EPAA and to permit the council to prepare for any further continuation of the injunctive relief.

Orders 29In conformity with the reasons above, the Court makes the following orders: (1)The Court notes that the applicant has complied with orders 2, 3 and 4 of the orders of this Court made on 6 July 2012 by Craig J; (2)the orders made earlier today at 10:15am are vacated; (3)upon continuation of the applicant's undertaking, order number 1 of the orders made on 6 July 2012 by Craig J is continued in the following terms: "The Respondent by himself, his servants and agents is ordered to refrain from laying any bricks or otherwise carrying out any building work at the second floor level of the premises located at and known as 8 Bayview Street, Northwood until 4:00pm 24 July 2012"; (4)any application for extension of the injunction is set down before the Duty Judge at 10:00am on 24 July 2012; (5)the applicant is to file and serve any evidence upon which it seeks to rely in support of the application referred to above by 17 July 2012; (6)from hereon in service on the respondent in the proceedings is to be effected by: (a)post at the address given by the respondent in his affidavit affirmed 12 July 2012, namely: "PO Box 944, Lane Cove NSW 2066"; AND (b)email at the following address: rrossr1@gmail.com; (7)the respondent is to file and serve any evidence in response by 20 July 2012; (8)costs of today are reserved; and (9)liberty to apply on two (2) business days' notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2012