Strathfield Municipal Council v Michael Raad Architect Pty Ltd

Consideration

1. The principles governing the grant of interlocutory relief are well‑known. Council must demonstrate there is a serious question to be tried such that there is a sufficient likelihood of success to justify the granting of interlocutory application, and that the balance of convenience favours the grant of an interlocutory application.
2. The principles have been stated on many occasions and I refer to: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [19]; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 at [170]; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [44] and, Tegra at [6], [7], [13]-[19] and [54].
3. The Court must also consider whether there are any discretionary reasons for refusing the injunction, such as delay and the like. When considering the balance of convenience, the Court will consider whether Council will suffer irreparable harm for which damages will not be an adequate remedy.

Serious question

1. Council submits that the potential breach of s 76A of the Act creates a serious question to be tried. To demonstrate this breach Council points to the approved plans, which are the subject of consideration and considerable evidence in the proceedings, and states that first, a number of works that have already been constructed not in accordance with the Consent, and second, it is clear on the evidence that, if not restrained, there will be further work carried out which will also not be in accordance with the Consent.
2. Council relies upon the evidence of Mr Broune set out in his affidavit of 18 August 2017 at pars 15, 18 and 21 to demonstrate the unlawful works. This evidence related to four discrete concerns in relation to the completed and proposed construction, being, first, the reinforced concrete columns; second, the concrete shafts; third, the stormwater drainage works; and fourth, the construction of the level 1 basement ground floor slab. Mr Broune's concerns were expanded in his oral evidence.
3. In relation to the reinforced concrete columns, Mr Broune's evidence made clear that there are 59 columns presently constructed which are 1200 millimetres wide and which do not have approval. To the extent these columns were the subject of approval, the evidence is that they should be (or should have been) 350 millimetres wide. Mr Broune gives evidence in relation to his consideration of the concrete columns and has produced markings on the plans which were attached to the Construction Certificate (being annexures to his affidavit of 18 August 2017). Mr Broune made a number of corrections to the markings in colour on those plans, and the annotations clearly show his opinion that there has been non-compliance. He also attests that, as a result of the layout of the works presently being undertaken, and likely to be undertaken, there will be insufficient room to maintain the approved layout of the car parking on the level 2 basement if the 1200 millimetre diameter piles are to be retained in place of the approved 350 millimetre wide (by 1 metre long) columns.
4. Mr Broune also indicated his concern regarding non-compliance in relation to the concrete lift and stair shaft. Specifically, Mr Broune stated that the constructed shafts are 1.2 metres longer and wider than the approved shafts, and that the reinforced concrete bases seal off the open shafts that are required by the Consent to build level 2 of the basement. Mr Broune attests that these concrete bases would need to be demolished to build the level 2 basement, and that the existing reinforced concrete lift and stair shafts would need to be extended.
5. In relation the stormwater works, Mr Broune's evidence indicates, while the Consent provides for a reinforced concrete stormwater detention pit below the level 2 basement, the stormwater drainage has already been constructed by the respondents under the level 1 basement. Accordingly, Mr Broune's evidence is that if the respondents were required to construct the currently approved level 2 basement in accordance with the Consent, the stormwater drainage works currently built under the level 1 basement would need to be removed and replicated below the level 2 basement.
6. Finally, Mr Broune also gives evidence in relation to his observations that the concrete slab that is in the course of being constructed for the level 1 basement floor, and the manner that it is being constructed, will not provide proper support if the level 2 basement is required to be constructed. Accordingly, Mr Broune attests that the concrete slab would need to be demolished and replaced with a heavier concrete slab if the level 2 basement is ultimately required.
7. The response of the respondents, both in relation to the expert evidence marshalled and the submissions, is that whilst there is no concession that the basement, or other works, have been constructed otherwise than in accordance with the Consent, relying particularly on Mr Frendo, the respondents' evidence is that if there is a failure to obtain approval for the Modification Application, the work that has been undertaken, can be deconstructed and the level 2 basement is able to be constructed.
8. In relation to the concrete slab in particular, the respondents' evidence is that if necessary to remove the slab it would be simple to do, and using the "top-down" construction method, a standard industry practice, this would be replaced by a post-tensioned suspended slab which would also then allow construction of the level 2 basement floor. Mr Frendo attests that, in relation to Mr Bourne's concern regarding temporary supports during this process, it is "universal practice" for these to be used to prop a removed supporting element until a new supporting element is constructed.
9. In relation to the stormwater detention pit, Mr Frendo stated in cross-examination that that which has been constructed is not in fact a stormwater detention pit, and that in any case, can be moved if so required.
10. There is some dispute in relation to Mr Broune's evidence, however on balance, I find the respondents' evidence unsatisfactory given the nature of the works constructed thus far, and find that Mr Broune's evidence is to be preferred. In the circumstances I accept his evidence and find that the works presently undertaken are most likely to be unauthorised such that there is clearly a serious question to be tried.

Balance of convenience

1. In relation to the balance of convenience, it is clear from the authorities, in particular Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 at 622-623 and Tegra at [13], that the Court must consider whether the inconvenience or injury which the applicant for interlocutory relief would be likely to suffer if the injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
2. The question of irreparable injury tends to be treated by the courts not as an independent consideration but as part of a balance of convenience (Tegra at [15]). Council submits, and I accept, that the irreparable harm or any harm does not need to be suffered by Council personally and that the harm can be the failure to enforce the law for the orderly development and use of the environment. Those matters have also been considered by Hunters Hill Council v Fraser [2006] NSWLEC 744 at [50].
3. In relation to the balance of convenience, I accept the material set out in Mr Broune's affidavit of 16 August 2017, particularly at par 12 that the complexity and the risk involved with complying with the Consent are likely to increase as the construction of the building proceeds to higher levels. Further, in his affidavit of 17 August Mr Broune sets out material which responds to the suggestion by the respondents that the work which is undertaken can be, to use my word, "deconstructed".
4. I find that the evidence of Mr Broune demonstrates that the coordinated nature of the additional controls and complexities that arise in what he calls the "retrofitting" of the level 2 basement (should it be required) is compelling in establishing that the balance of convenience lies in favour of Council. I accept also Mr Broune's evidence that if Building 6 proceeds to higher levels it increases the complexity of the support that is otherwise required and that therefore the nature and extent of the further work that would be required to then construct is greater if the injunction is not granted.
5. Whilst not conceding that there is a serious question to be tried, the respondents raise a number of reasons why, on the balance of convenience, relief should not be granted. First, they submit that there has been significant works completed already on part (or up to half) of the level 1 basement. I do not find this fact particularly compelling in the circumstances where there is a prima facie case that that work (or part thereof) is unauthorised.
6. Second, the respondents submit, that although the possible deconstruction will be more expensive, and with some risk, these are steps which the respondents are prepared to undertake. The respondents also repeat their submission that the level 2 basement can be constructed through top-down construction. While I accept that from a technical engineering point of view the top‑down construction could be undertaken to fulfil the requirements presently involved in the Consent, I do not find it compelling in relation to the balance of convenience given the concern that the works are not in accordance with the Consent.
7. Third, the respondents submit that the Modification Application is one which, on the evidence, I am entitled to assume, is likely to receive approval. I accept that the Modification Application was lodged on 20 July 2017 and that it is likely that a decision will be given in the relatively near future, such that if approval is received then most of that which has been undertaken is unlikely to remain a matter of concern. The mere fact that it is likely, on the respondents' highest case, that the Modification Application will be successful is not a matter which I find compelling. I accept that if the Modification Application is approved the injunction which I am asked to impose may have a relatively limited life. I do not however consider this to be a determining factor as to whether I grant relief.
8. The final matter raised on behalf of the respondents is that, as a practical and planning matter, the level 2 basement is unnecessary. I accept that this may be the case from a commercial and practical point of view and I accept the respondents' evidence, which has not been the subject of any contrary evidence, that there may be good planning reasons for the deletion of the extra car parking otherwise provided for in the level 2 basement. However, in the circumstances of the Consent being on foot and given the Modification Application has not yet been determined, I do not find this aspect to be compelling and I do not accept that an injunction would have little or no utility, as submitted by the respondents.
9. Although it is also submitted by the respondents that there are third parties who have an interest in relation to the progress of the construction of the development, I am not satisfied and there is little evidence to suggest that the interests of any third party, nor the commercial considerations of the respondents, are of weight in this matter. Further, there is no evidence of any real commercial detriment. Although I accept that there would be a preferred construction pathway, there is no evidence to the effect that there is a critical path which would otherwise be deleteriously affected by the grant of interlocutory relief.
10. Council has not proffered an undertaking as to damages and prays in aid the comments of the then Chief Judge of this Court in Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91 and recently reiterated by Pepper J in Blacktown City Council v Penatrators Pty Ltd [2013] NSWLEC 169; (2013) 199 LGERA 73 at [33]-[35]. In the circumstances, I am satisfied that the proceedings are brought in the public interest insofar as there is a real and necessary public interest in upholding the planning laws of the State by Council. A similar approach was taken by Pain J in Tenterfield Shire Council v Budd [2016] NSWLEC 89 at [13].
11. I note that the respondents have submitted that the relief sought by Council may in fact require the removal of that which has already been constructed. I do not accept this. The interlocutory relief sought is to preserve the status quo until the hearing of the substantive proceedings.

Conclusion

1. On the evidence before me, it appears that the respondents' conduct, although understandable from a practical, result-driven objective, did involve work which Council (and indeed the certifier), has not approved. I accept that there is a Modification Application that is pending, however the mere fact that that which is being undertaken can be deconstructed if the Modification Application is not forthcoming is not persuasive. The respondents clearly took a calculated risk in undertaking this further work, however the Court should not countenance what appears to be a flouting of the planning regime simply because the respondents are prepared to take what is said to be a commercial risk.
2. For the reasons stated above, I am therefore of the view that there is a serious question to be tried and that the balance of convenience favours Council. There has been no unreasonable delay in seeking interlocutory relief and there does not appear to be any significant prejudice to third parties.

ORDERS

1. The Court orders that: 1. Until further order of the Court, the Respondents, their servants and agents, do not construct the basement of Building 6 at SP 87671 otherwise than in accordance with development consent DA0405/176/03. 2. The matter is stood over for further directions before the List Judge on 15 September 2017. 3. The parties have liberty to apply. 4. Costs are reserved.

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: 14 September 2017