Waverley Council v Ligertwood and Others

FOURTH RESPONDENT Bernie Cohen & Associates Pty Ltd t/as Essential Certifiers Liverpool FILE NUMBER(S) : 40550 of 2003 CORAM: Talbot J KEY ISSUES: Interlocutory Relief :- serious question to be tried - delay by council in bringing proceedings Environmental Planning and Assessment Act 1979 s 81A(5) LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 s 142(2), s 147(1)(e) Noise Control Act 1975 CASES CITED: DATES OF HEARING: 05/06/2003 EX TEMPORE JUDGMENT DATE : 06/05/2003

APPLICANT Mr S J Brockwell (Barrister) SOLICITORS M E McMahon & Associates LEGAL REPRESENTATIVES: RESPONDENTS Mr J Doyle (Solicitor) SOLICITORS Cowley Hearne Lawyers

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40550 of 2003

5 June 2003 Waverley Council Applicant v Georgina Ligertwood First Respondent Crackwell and Lonergan Architects Pty Limited Second Respondent Fourway Constructions Pty Limited Third Respondent Bernie Cohen & Associates Pty Ltd Trading as Essential Certifiers Liverpool Fourth Respondent Judgment

1 HIS HONOUR: Development consent was granted by the Court in Matter No. 10851 of 2001 following a hearing before Commissioner Murrell. The conditions of the development consent contain some inconsistencies. With due respect to the parties who drafted the conditions, there is a real capacity for there to be a lack of understanding about just exactly, first of all, what was approved, and secondly, the conditions under which it was approved. 2 I assume, nevertheless, that the set of plans before the Court amount to the plans approved by the Commissioner. My attention has been drawn to condition 40, which deals with the Noise Control Act 1975 and the provisions of an Australian Standard in relation to all sound-producing plant. 3 Conditions 60 through to condition 63 particularly deal with the mechanical ventilation system proposed. There is provision for the design of that system to be certified by a person competent to do so prior to the issue of the construction certificate. 4 The issue that now arises is in relation to the location of an exhaust cowl shown in the plans as located adjacent to a stairway, but not above the stairway. The question is whether it has been located in a place that can be accepted as consistent with the development consent granted by the Court. 5 A construction certificate was issued on 9 September 2002. The certifier stated that if the work is completed in accordance with plans and specifications attached to the certificate, it will comply with the requirements of s 81A(5) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act) and s 147(1)(e) of the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation"). 6 Attached to the certificate are plans which have been tendered in the council's case. Those plans clearly and distinctly show the location of the ventilator shaft or cowl at a location which is quite different to the location shown on the plans approved by the development consent. However, the shaft appears, prima facie, to serve the same purpose and, in particular, provides an exhaust from the kitchen. 7 Condition 60 of the development consent, as I said, required the design to be certified prior to the issue of the construction certificate. The certifier appears to have turned his or her mind to the question of the ventilation system but, for some reason or other, only attaches what appears to be a quote in respect of that work.

8 At this interlocutory hearing, Mr Doyle latently, and in the course of Mr Brockwell's submissions, produced a document that bears the date 26 August 2002. On its face the document appears to be some sort of certificate of design yet, for some unexplained reason, it is not included with the construction certificate which, as I said, is dated 9 September 2002. 9 All of that only adds to the confusion. The issue is whether or not the cowl, or the shaft that goes under it, but more particularly the cowl, has been installed in the wrong location. That is the issue whether the structure on the roof and what extends above the roof is in the wrong location according to the plans approved by the Court, if they are literally and concisely read. 10 Section 81A(5) of the EP&A Act provides that:- …The regulations may make provisions concerning the issue of certificates for the erection of buildings and the subdivison of land. 11 The EP&A Regulation 147(1)(e) relevantly provides in the present context that a construction certificate must contain, inter alia, the following:- a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate…will comply with the requirements of this Regulation as are referred to in section 81A(5) of the Act. 12 The only other regulation that may ultimately have some bearing on the outcome of these proceedings is 142(2) which requires "the certifying authority [to cause] notice of its determination" to be given to the council (in this case) within seven days, together with "any construction certificate issued as a result of the determination" and "any plans and specifications in relation to which such a construction certificate has been issued".

13 Clearly it is purported that was done on 9 September 2002. 14 The fitting of a cowl to the top of the shaft is the minor outstanding work required to be done. It is not clear from the present evidence whether some machinery also needs to be installed but, for the reasons that I will explain in a moment, that presently does not have a significant bearing on the Court's determination. Of course, if that still needs to be done, then the operation of a restaurant that relies upon the ventilation shaft in the meantime, pending a final determination, is more serious. 15 A potential problem is identified by reference to the impact of other restaurant developments in the locality. However, if the defendants are correct, the status quo in respect of the location of the work has already been achieved, except for the fitting of the cowl over the exhaust shaft. 16 Again on the basis that is correct, the fitting of the cowl will not mean that rectification, if it is necessary in due course, or to put it another way, the damage that might be suffered, will not be irreparable. The position will not be capable of being recovered. In other words, if the council is ultimately successful, which it may well be because there is a serious question to be tried, the re-location of the shaft will be no more difficult, in my opinion, than it already is. If the council is right, then the defendants have a very serious problem on their hands. It may well be a problem that sounds in damages against some other person, or may even be found to be on their own head. 17 I have taken into account, as I was reminded by Mr Brockwell, that it is only a new business that will be interfered with. The Court realises that the consequential factors associated with an injunction impacting on the establishment and opening of a new business may not be potentially as serious as the circumstances where a business has been carried on for some significant period of time. 18 However, the most telling factor is that the council has known since the construction certificate was approved on 9 September 2002 that this problem existed. It has stood by in the meantime, either by oversight or lack of diligence, while the building was constructed. It is no more obvious now than it was on 9 September 2002 that the location of the shaft onto which this cowl is to be placed was different in whatever respect, material or minor, to that shown on the plans approved by the Court. 19 The other relevant parts of the building, that are otherwise the subject of these proceedings, have been built in accordance with the plans the subject of the construction certificate. 20 Notwithstanding that an undertaking as to damages has been formally offered by the council and the fact that I have identified there is a serious question to be tried, I am not satisfied in the circumstances that interlocutory relief should be granted for the reasons that I have outlined. 21 The work, according to the respondents, is effectively completed. If the respondents elect to risk exposure to an injunction in due course which requires the building to be altered in a material way after business is commenced, then it will be on their own head. However, the lack of diligence on the part of the council and the balance of convenience dictate that no order should, in my opinion, be made at this point. Particularly as the work to be completed is, according to the respondents, now only minor in the sense that only the cowling needs to be placed on the exhaust outlet. 22 Again, if there is in fact a greater quantity of work to be done before a certificate of occupancy can be issued, and if a certifier is persuaded to issue a certificate of occupancy, and the business commences and ultimately the council's case is proved, then the consequence of proceeding with the work and carrying on in the meantime with whatever it is that goes on in this building will be at the respondents' risk. 23 I make the decision to refuse interlocutory relief notwithstanding there is a serious question to be tried and the council has furnished an undertaking as to damages. Although there is some evidence about the detrimental effect caused at other properties, there is no relevant or direct evidence of potential environmental harm arising from the re-location of this particular shaft. 24 In the circumstances where this defendant has been allowed to proceed to this point, relying on a construction certificate that has been in the council's hands since September without intervention until February this year, the balance of convenience dictates that the Court should not make an order at this stage. 25 The Court does not usually come to the assistance of those who have delayed or failed to take action when the opportunity to act has existed from an earlier time. No explanation is given for the delay between 9 September 2002 or thereabouts when the construction certificate was approved and lodged with the council and when the council first took action, albeit perhaps pursuant to an order that was lacking in legal veracity. Even though the council is acting in the public interest, that interest will not, in this case as a matter of convenience, be severely detrimentally affected if the resolution of the dispute is further delayed to the final hearing. 26 In the circumstances, I propose to refuse to grant interlocutory relief. The exhibits may be returned. Any question of costs is reserved until the ultimate outcome of the proceedings has been determined. 27 Does the matter have to go to callover or has it got a running life of its own?

28 DOYLE: Your Honour, the next step, and it relates to the judgment you've just made, would be for, I presume, points of claim to be put on by the applicant.

29 HIS HONOUR: So it needs to go down to the Registrar to have that done tomorrow, does it?

30 DOYLE: That's probably appropriate. In that regard, I've already foreshadowed the possibility of an application to strike out the claim of the applicant if, once the case has actually been more formally particularised, and where you've made--

31 HIS HONOUR: You wouldn't have got that today, Mr Doyle.

33 HIS HONOUR: No, you wouldn't have got it today, Mr Doyle, on the basis of what's before the Court because I've already held, and I hope you heard it clearly, there's a serious question to be tried.

34 DOYLE: That's why I just wanted to pre-empt - whether a finding has been made that would pre-empt once the points of claim are articulated, whether there is a claim then concluded.

35 HIS HONOUR: That may well be the case but I'm just reminding you of what I've just said and which is on the record.

37 HIS HONOUR: It sounds to me as though it's appropriate for the parties to consider their position overnight and for the matter to go before the Registrar at 9 o'clock tomorrow for directions.

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