Solicitors:
Houston Dearn O'Connor (Applicant)
Doyles Construction Lawyers (First and second respondents)
No appearance (Third respondent)
File Number(s): 2017/316656
[2]
Introduction
The applicant Council seeks an interlocutory injunction against the first and second (corporate) respondents, pending the substantive hearing of its Class 4 civil enforcement proceedings against the three named respondents.
The third-named respondent, Stanly Spyrou, is a private certifier ("PCA"). The Court assumes, in the absence of evidence, that he has been served with the Council's summons (if not also its Notice of Motion ("NOM") for interlocutory relief), but he has not yet appeared, either personally on 7 or 17 November, or by filing a Notice of Appearance.
The prayers for relief in the Class 4 summons, filed on 19 October 2017, are as follows (emphasis added):
1. That the First Respondent and the Second Respondent must as from the date of these Orders do all things necessary so as to comply with the Development Consent given by the Court in Case 10918 of 2014, in that they must comply with Condition 1 of Part B - Operational Conditions, and specifically the development must be built in accordance with and is to comply with the following plans that are referred to in Condition 1 of Part B of the Consent:
i. Basement Plan, Drawing No. A1200, Issue D, prepared by Ghazi AI Ali dated 21 May 2015.
ii. Ground Floor Plan, Drawing No. A1201, Issue G, prepared by Ghazi AI Ali dated 21 May 2015.
iii. Level 1 Plan, Drawing No. A1202, Issue G, prepared by Ghazi AI Ali dated 21 May 2015.
iv. Level 2 Plan, Drawing No. A1203, Issue G, prepared by Ghazi AI Ali dated 21 May 2015.
v. Elevations, Drawing No. A1500, Issue F, prepared by Ghazi AI Ali dated 15 May 2015.
vi. Elevations, Drawing No. 1501 (sic - A1501), Issue F. prepared by Ghazi AI Ali dated 15 May 2015.
vii. Sections, Drawing No. A1700, Issue E, prepared by Ghazi AI Ali dated 8 May 2015.
viii. Roof Plan, Drawing No. A1204, Issue E, prepared by Ghazi AI Ali dated 21 May 2015.
ix. Material Finishes Schedule, submitted in accordance with Deferred Commencement Condition 2.
x. Conservation Works Schedule ("Merriwa"), prepared by Graham Brooks and Associates, dated July 2014.
2. That the Occupation Certificate 17/0210-01 issued by Stan Spyrou (BPB1977) and determined on 4 October 2017 is declared to be invalid.
3. The First Respondent must cause occupation of any part of 51-55 Homebush Road, Strathfield to cease until such time as a valid Occupation Certificate is issued by a principal certifying authority.
4. The First Respondent must not cause, permit or allow occupation of any part of 51-55 Homebush Road, Strathfield, to be occupied until such time as a valid Occupation Certificate is issued by a principal certifying authority.
5. That the First Respondent, Second Respondent and Third Respondent are jointly and severally responsible for the payment of the Applicant's costs as agreed or assessed.
6. Any other Order that this Honourable Court sees fit to make in the circumstances.
The respondents admit that many of the rooms in the premises, as built, are presently leased and occupied, and the Council says that it became aware of occupation only on receipt of a complaint on 16 October 2017. The minimum lease term is three months, but many occupants have apparently committed to longer terms.
Council's NOM filed 2 November 2017 seeks the following interlocutory orders (emphasis added):
3. That, within seven days of the date of these Orders, the First Respondent is to cease the use of 51-55 Homebush Road Strathfield NSW 2156 ("the premises") for any residential purpose until further order of the court.
4. That, within seven days of the date of these Orders, the First Respondent will cause all occupants (be they temporary or permanent) to vacate the premises.
5. That the First respondent is not to cause, permit or allow the premises to be occupied until further order of the Court.
6. That until further Order of the Court the First Respondent and the Second Respondent are each restrained from undertaking any work at the premises that is not in accordance with the development consent given by the Court in case 2014/10919.
The NOM came before me, firstly, on 7 November; when I (1) set it down for hearing on 17 November; (2) gave directions regarding filing of evidence and submissions regarding it; and (3) noted the following (relevant) undertakings given on behalf of the two corporate respondents:
(1.1) Without admission, until further Order of the Court, the Respondents undertake to grant no further lease or leases in respect of units or rooms located at 51-55 Homebush Road Strathfield ("the premises");
(1.2) Without admission, until further Order of the Court, the Respondents will undertake to not cause, permit or allow any person to grant any further lease or leases in respect of units or rooms located at the premises;
(1.3) Without admission, until further Order of the Court, the Respondents will undertake to not cause, or permit or allow any further advertising of rooms to let within the premises (excepting any advertising already in train).
The respondents also claim that they have taken steps - and offered more -to ensure the safety of occupants, and to minimise disturbance to neighbours (subs section 4, par 3).
17 November 2017 was also the date appointed for return of the summons commencing the substantive proceedings, and the Council handed up, on 17 November, some draft Short Minutes of Order ("SMO") in that regard.
[3]
The Interlocutory Hearing
Before me, Council relied upon two affidavits from its Environmental Health and Compliance Co-ordinator, Matthew John Dunn (sworn 1 and 8 November 2017), his bundle of documents "MJD1"), and an A3 copy of the plans approved by the Court (Exhibit C1).
The first and second respondents relied upon two affidavits from Angela Cai, a director (since 20 February 2016) of the second respondent, Grand City Constructions Pty Ltd (affirmed 27 October and 15 November 2017), her bundle of documents ("AC1"), and an expert report from Town Planner, Neil Kennan, dated 14 November 2017, which takes a fairly benevolent view of what has been constructed.
Ms Cai is the daughter of Mr Ci Lin (or Cilin) Cai.
No oral evidence was called, but the Court received both written and oral submissions - from Mr Robert White of counsel (for the Council), and solicitor Mr John Doyle (for the first and second respondents).
Ms Cai and Doyle made a number of complaints about the attitude and behaviour of both Council and its officers, Doyle alleging a "campaign of harassment" by Council against the Cais, attacking the qualifications of Dunn and Kennan, and raising a defence of "unclean hands" against the Council.
In their submissions filed 15 November 2017, the respondents also took the point (pars 1.1.7 and 5.5) that "proper parties have not been joined", in that present occupants of the subject premises will be directly affected by the interlocutory and some final orders sought by Council, and were not (yet) parties to the proceedings.
At the end of the hearing on 17 November 2017, at the request of the Council over objection from Doyle, I made the following orders (as to which see Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404, at [10] - [13]):
1. The First Respondent provide to the Applicant by 5.00pm Monday, 20 November 2017 the names and addresses of all tenants residing in the building at 51-55 Homebush Road (as at 17 November 2017).
2. The Applicant be granted leave to file and serve an amended Summons and Points of Claim joining all of the occupants at the building at 51-55 Homebush Road by 24 November 2017.
3. The Applicant be permitted to serve the amended Summons and Point of Claim on the occupants of the building at 51 - 55 Homebush Road by leaving a copy of those documents in the post boxes of the occupants;
and I made clear that those orders did not relieve the corporate respondents of their obligations pursuant to their undertakings (1.1) to (1.3) ([6] above).
[4]
Relevant Background
The basic facts of the matter, and the chronology of relevant events, are important when the Court is asked to make very serious interlocutory orders.
The Points of Claim ("POC" - pars 1 to 9) filed by the Council on 19 October 2017, summarise the Council's case in these terms (some emphasis added, but some particulars omitted):
1. The First Respondent is and at all relevant times has been the owner of land situated at 51-55 Homebush Road Strathfield NSW 2135 ("the land"):
...
2. The Second respondent is and at all relevant times has been the builder of a development located on the land.
3. The First Respondent and the Second Respondent have the same director:
Particulars
(a) Ci Lin Cai of 9 Murray Street Croydon (born 20 November 1970) is listed as the sole director and company secretary of the First Respondent;
(b) Cilin Cai of 16 Argonne Street North Strathfield (born 20 November 1970) is listed as a director of the Second Respondent.
4. The Third Respondent is a Principal Certifying Authority ("PCA") capable of issuing occupation certificates in respect of development:
...
5. The Applicant is and at all relevant times has been a local Council performing functions inter alia as a consent authority and regulatory/compliance authority in the Strathfield Local Government Area.
6. On 1 July 2015 Commissioner Brown gave the Court's conditional consent to Development Application 103 of 2014 ("DA2014/103"):
...
7. The First Respondent has breached section 76A of the Environmental Planning and Assessment Act 1979 ("the Act"):
Particulars
(a) At all relevant times the First Respondent had the benefit of the development consent given in relation to DA2014/103;
(b) At all relevant times the First Respondent directed or had the ability to direct the Second Respondent in undertaking building works on the land;
(c) Building works on the land were not carried out in accordance with the conditions of development consent given to DA2014/103.
8. The Second Respondent has breached section 76A of the Act:
...
9. The Third Respondent has issued Occupation Certificate 17/0210-01 ("the OC") in breach of the Act and the OC is therefore invalid:
Particulars
(a) The OC was issued in circumstances whereby the development does not accord with the approved development plans or Construction Certificate plans submitted to the Applicant in support of the issuing of a construction certificate;
(b) The Third Respondent should not have issued the OC in circumstances where the works undertaken on the land did not comply with the approved development plans or the plans that were submitted for the issuing of a constriction (sic) certificate.
...
In addition to the facts alleged in the POC, the Court notes, from the evidence, the following events:
18 January 2016: Construction Certificate C2015108 was "approved";
1 April 2016: Council issues a Cease Work Order, apparently on account of truck movements;
11 April 2016: Ms Cai sent to the then PCA (Alex Mullin) a plan adding nib walls and balconies to the design, but received no response. No modification application was made;
15 April 2016: Council served an "emergency stop work order" in respect of pre-commencement conditions of consent, possible threats to the heritage item on site ("Merriwa"), and to an "outbuilding", also on the site, and the need to remove two trees;
c. 21 April 2016: Ms Cai called WorkCover NSW to the site "to assess Council's concerns". The WorkCover officer conferred with Council Officers on site;
28 April 2016: Construction Certificate C2015108A was "determined", approving a "Basement plan" (AC1, fols 310 - 312);
29 June 2016: Council emailed to Mullins and Ms Cai a complaint about the removal of two trees and the construction of a retaining wall;
c. 5 July 2016: Council officers discussed with Ms Cai the tiling of a roof area not approved to be trafficable;
In July 2016: Mullins allegedly agreed with Ms Cai that she could rent out "a room" in the heritage building on site;
c. 14 September 2016: Council complained that Ms Cai had "approximately ten tenants residing in the heritage building". Council fined Mr Cai $6,000 for this breach;
6 March 2017: Council issued to Ms Cai "an official warning letter for a Cease Work Order regarding alleged unauthorized works", namely a concrete pour;
30 May 2017: Ms Cai lodged a s 96 modification application to "regularise the non-compliances" (Dunn 1 November, par 30);
1 June 2017: Ms Cai lodged a Building Certificate application, but withdrew it, on 8 June, on advice from a Council officer;
3 July 2017: Ms Cai lodged a fresh Building Certificate application, which she deposes has not yet been determined;
25 July 2017 Ms Cai made a formal complaint about breaches of Council's Code of Conduct by a now former Council officer. Council's response issued on 20 September 2017;
2 August 2017: Council refused the s 96 application, on six stated grounds (see AC1, fols 259 - 260);
29 August 2017: Council issued a Notice of intention to issue an order under s 121B. A secondary notice re an order under s 121H was issued on 5 September 2017;
6 September 2017: A Council inspection indicated no one in residence at the subject premises. Council also issued a notice of a proposed s 121B Order regarding unauthorized works, reflective of the unsuccessful modification application (c.f. AC1 fols 259 - 260, with 284 - 285);
Dunn deposes (1 November, par 7) that on this inspection, he saw:
a) There were blade walls added to the development, with these walls not being approved under the development consent;
b) There was a hard stand courtyard that had been built whereas there was no consent for such a court yard to be built;
c) There were balconies added to various rooms on levels 1 and 2 with there being no consent for such balconies to be erected or added to the development, including in particular rooms 103, 104, 105, , (sic) 108, 109 & 113 on the 1st floor, and 201, 202, 203 & 204 on the 2nd floor;
d) Enclosed outdoor area to rooms 205 to 207 had been added whereas there was no consent for such areas to be erected and included in the development.
(See also file note at tab 5 of MJD1.)
8 September 2017: Ms Cai lodged a Class 1 appeal (17/273815) against refusal of her modification application;
11 September 2017: PCA Mullin was replaced by the third respondent;
25 September 2017: Ms Cai requested Council to meet with her (AC1 fol 297);
4 October 2017: The third respondent issued to Ms Cai an Interim Occupation Certificate (Dunn 8 November, annexure "A");
6 October 2017: Council issued, and Ms Cai received, the relevant s 121B order (MJD1 tab 7), and Council received an Interim Occupation Certificate;
16 October 2017: A neighbour complained that the premises are occupied (Dunn, 8 November, par 6);
19 October 2017: The present proceedings were commenced, and undertakings were sought;
27 October 2017: The respondents declined to give the undertakings sought by Council, and lodged an appeal against the Order 15 (17/325731);
2 November 2017: The NOM seeking interlocutory orders was filed;
6 November 2017: Doyle sought the agreement of Hon R.N. Talbot to accept appointment as a mediator of all the disputes between Council and the respondents (AC1 fol 336).
There are three prospective events which ought also be noted:
1. 24 November 2017 is the date appointed for directions in the Order 15 appeal;
2. 8 February 2018 is the date appointed for a Section 34 Conference in the Class 1 appeal concerning the refusal of the respondents' modification application; and
3. The respondents may bring further proceedings in respect of the pending building certificate application.
[5]
Consideration
The respondents say that council's stance in this matter (a) is "grossly disproportionate" to whatever breaches may have occurred - which Doyle says are only minor or technical - and (b) is "unduly oppressive" to the two corporate respondents.
Ms Cai deposes that shutting off rental income could put the respondents in default with their banker (AC1, tab 39), as well as imposing "great anxiety, disruption and expense" on relatively poor occupants of the premises, as Christmas approaches.
The corporate respondents consider a mediation covering these present Class 4 proceedings, and the two Class 1 appeals now on foot, should be able to resolve all disputes between the parties. Short of that, Doyle urged the Court, in the absence of his filing any NOM, to bring forward the s 34 conference appointed for 8 February 2018, and adjourn the Class 4 proceedings, pending that conference.
The Council presses the Court to grant the interlocutory relief, including the order to evict immediately all present occupants of the premises.
The principles governing the granting of interlocutory relief are well established and can be found clearly expressed, explained, and demonstrated in Tegra (NSW) Pty Limited v Gundagai Shire Council and Anor (2007) 160 LGERA 1; [2007] NSWLEC 806. See also Strathfield Municipal Council v Michael Raad Architect Pty Ltd (No 2) ("Raad") [2017] NSWLEC 119.
The Court must find that there is a serious issue to be tried, and that the balance of convenience favours the grant of interlocutory relief to preserve the status quo.
The issues in the present case are, indeed, serious and in dispute.
Essentially, the Council says (1) that the corporate respondents removed from their proposal certain elements to which Council objected, (2) that they so secured an approval from the Court, and (3) that they then departed from the Court-approved plans to re-incorporate those objectionable elements in the project as executed, thereby undermining the development approval regime, and causing potential harm to neighbourhood amenity, especially the adjacent school.
The Council does not claim that there is any fire risk or other physical danger posed to any occupants of the premises or other property or citizens, but asserts adverse amenity impacts on the neighbourhood, and seriously challenges the occupation certificate upon which the respondents appear to have relied in letting the units. The respondents will defend the certificate (see subs, section 2).
The balance of convenience in this case favours the grant of interlocutory relief, but, bearing in mind the "judicial balancing" required of me by Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, at 340, I am not satisfied that ordering removal of present occupants of the premises is justified in all the circumstances.
The Court does not require the Council to proffer in this case an undertaking as to damages, as the Council is clearly acting in the public interest as the relevant regulator of development in the area, seeking to uphold the planning laws: Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91: Blacktown City Council v The Penatrators Pty Limited (2013)199 LGERA 73; [2013] NSWLEC 169; Tenterfield Shire Council v Budd [2016] NSWLEC 89; and Raad, at [45].
In terms of declining relief on discretionary grounds, the Court does not accept the submission that the Council has unduly delayed taking action in this case.
The substantive proceedings should be expedited, so as to be heard and determined as quickly as the Court can practically accommodate them, but there appear to be presently no available hearing dates before the end of term.
[6]
Conclusion
I make the following orders and directions:
1. Until further Order of this Court, the First and Second Respondents are not to lease, nor cause, permit, or allow any further elements of the premises at 51-55 Homebush Road, Strathfield, or any elements which hereafter become vacant, to be leased or occupied, for residential or any other purpose.
2. Until further Order of this Court, the First and Second Respondents are not to cause, permit, or allow any further advertising of "rooms to let" within the subject premises.
3. Until further Order of this Court, the First and Second Respondents are each restrained from undertaking any work at the premises that is not in accordance with the development consent given by the Court in case 2014/10919.
4. The hearing of the substantive proceedings is expedited.
5. The parties are to consult forthwith with the Registrar to fix the first available dates for a two day hearing of the substantive proceedings.
6. The Applicant is to serve its affidavits in chief and bundle of tender documents, by Friday, 1 December 2017.
7. The Respondent is to serve its affidavits in chief and any bundle of additional documents and, if appropriate, points of defence, by Friday, 8 December 2017.
8. The Applicant is to serve any affidavits in reply and any bundle of additional documents in reply and, if appropriate, points of reply, by Friday, 15 December 2017.
9. Leave is granted for the parties to rely on expert evidence going to the discipline of Environmental Planning/Town Planning.
10. The parties' experts are to confer and serve the parties with a joint report (including any reply evidence) setting out the matters on which they agree and disagree, and the reasons for any disagreement, by Friday, 19 January 2018.
11. The Applicant's Notice of Motion filed on 2 November 2017 is otherwise dismissed.
12. The parties' respective costs of the hearing of the Notice of Motion on 7 and 17 November 2017 are to be their costs in the cause unless within 14 days any party files a Notice of Motion seeking a different order as to those costs.
13. Exhibit C1 may be returned.
14. The parties are at liberty to apply to the Duty Judge on three working days' notice.
[7]
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: 22 November 2017