Willoughby City Council v Sahade and Ors

Land and Environment Court (NSW)|2000-02-02|Before: Pearlman J, Cowdroy J

CITATION : Willoughby City Council v Sahade and Ors [2000] NSWLEC 38 APPLICANT Willoughby City Council PARTIES : RESPONDENTS Sahade and Ors FILE NUMBER(S) : 40016 of 2000 CORAM: Pearlman J KEY ISSUES: Interlocutory Relief :- serious question - balance of convenience - costs LEGISLATION CITED: Willoughby Local Environmental Plan 1995 CASES CITED: DATES OF HEARING: 02/02/2000 EX TEMPORE 02/02/2000 JUDGMENT DATE :

APPLICANT Ms S A Duggan (Barrister) SOLICITORS Mallesons Stephen Jaques

FIRST RESPONDENT Mr M V Sahade (Barrister) SOLICITORS Comino Prassas LEGAL REPRESENTATIVES: SECOND RESPONDENT Mr M V Sahade (Barrister) SOLICITORS Comino Prassas

THIRD RESPONDENT Mr M V Sahade (Barrister) SOLICITORS Comino Prassas

IN THE LAND AND 40010 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 2 February 2000

WILLOUGHBY CITY COUNCIL Applicant v ANTHONY SAHADE First Respondent CRYSTAL CAR WASH CAFE PTY LTD Second Respondent KINGSFORD CAR WASH PTY LTD Third Respondent JUDGMENT

On 31 January 1999, Cowdroy J granted an interlocutory injunction in favour of the applicant, Willoughby City Council ("the council") in these proceedings and ordered that the proceedings be stood over till today. Today the council seeks a continuation of the order that Cowdroy J made, subject to one qualification to which I will later refer, and in addition, the granting of further interlocutory orders.

Those orders that are now sought, including the order made by Cowdroy J, are as follows:

(1) An order, pending further or other orders, that the respondents, their servants or agents be restrained from carrying out landfilling and earthworks (the "Earthworks") on lots 3 and 4 in deposited plan 3372, known as 315 Victoria Avenue, Chatswood (the "Property"). (2) An order, pending further or other orders, that the respondents, their servants or agents be restrained from carrying out alterations and additions to the existing building on the property (the "Alteration Works"). (3) An order that the respondents, their servants or agents immediately place hay bales and geotech fabric along the full length of each boundary of the Property, and immediately cover, from top to bottom, the full length of the perimeter fence on each boundary of the Property in hessian cloth in order to ensure that no dust, sediment or soil or other similar material escapes from the Property as a result of the Earthworks having been carried out. (4) An order that the respondents obtain and submit to the council a certificate by a certified practising structural engineer certifying:

such certificate to be provided to the council within 7 days of the date of this order. Until such time as the certificate is provided to the council, the respondents shall within 24 hours of the date of this order take all steps to ensure that all buildings on the site, namely the building below the slab and the building into which the slab is keyed in, is secured to ensure that access is prevented to that area. (5) An order that by 5pm on 3 February 2000 the respondents take all steps to ensure the drains, being drains identified on the plan annexed hereto and marked in red thereon, is covered by geotextile fabric and isolated by bunding to ensure no silt or contaminants can enter the drains. 3. The circumstances in which these orders are sought are that they relate to the premises which I have described as 315 Victoria Avenue, Chatswood.

This is a large site comprising a petrol station plus a shop ancillary to the petrol station. There is a car washing area at the rear and there is a building which formerly comprised a mechanic's garage.

Upon the premises, certain activities have been carried out by the respondents or on the respondent's behalf. First, a concrete slab has been formed and poured on the top of the building formerly comprising the mechanic's garage. Secondly, a quantity of fill has been imported onto the site and spread over an area of the site. Thirdly, a retaining wall has been demolished.

It was clear from this morning's proceedings that the respondents propose to do at least the following further things: to form up and pour a concrete slab on the fill that has already been spread as I have indicated, and ultimately to use those parts of the property for the purpose of car washing.

In a case where what is sought is an interlocutory injunction, the Court's only task is to consider whether to grant the injunction and for that purpose to consider two things:

(1) Is there a serious case to be tried, which means, does the council have a case which raises arguable and serious questions for determination by the Court? The council must establish that there is a serious case to be tried before the Court can grant interlocutory relief. (2) The council must also persuade the Court that the balance of convenience lies on the side of making the interlocutory orders, rather than not making them. That is, that it is preferable to make those orders as a matter of convenience, weighing up the impact of the orders on each side of the equation, that is, their impact on the respondents if they are made and their impact if they are not made.

As to the first matter, that is, whether there is a serious case to be tried, certain questions have been raised. The question is whether what has been carried out on the site, which I will call the activities, required development consent, for it is clear from the evidence that no development consent for the activities has been obtained.

Under the Willoughby Local Environmental Plan 1995, the activities, at least prima facie, are prohibited. There is a question then as to whether the activities are in fact prohibited or whether they are ancillary to development which is permissible. There is a question of existing use rights because the site has been used for a petrol service station, and the evidence establishes that car washing has been carried out on the site, although, in the council's case, there is an allegation that that has never been accepted as being a lawful use.

Even if there are existing use rights, there is a question as to whether a development consent is still required and, if it is, there is also a question as to whether a construction certificate is required.

I do not dwell on whether there is a serious case to be tried any further than outlining the questions that have come into existence, because Mr Sahade, who is appearing for all three respondents, conceded that at least in relation to the activities that have been carried out, there is a serious question to be tried. He submitted that in relation to the question that might arise from the proposed end use of the premises, that is, for a car wash or ancillary activities, the respondents propose to lodge a development application with the council and that question may, depending upon the result of that application, become academic. Nonetheless, there is a serious question to be tried.

The real issue in this case is where the balance of convenience lies. I have come to the conclusion that the balance of convenience lies in favour of the council and I say that for the following reasons.

First, there is an issue of public safety. A concrete slab has been placed on the top of a building formerly used as a mechanic's garage. It has been keyed into, or the beams of it have been slotted into, the existing shop structure.

Evidence was given by a structural engineer, Mr Mohanad Noaman, on behalf of the respondents, as to the reason for that slab being laid. His evidence was that, in summary, what has been done is safe and what has been done is part of a process of repairing the area which, in his opinion, (a matter which is supported by evidence from Mr Nikolaos Kariotoglou, also on behalf of the respondents), was in a bad state of repair.

Nonetheless, that evidence does not establish to my satisfaction that the construction of the concrete slab above the mechanic's garage is structurally sound and adequate from a safety point of view.

My second reason for finding the balance of convenience in favour of the council is that I am satisfied that there is a risk of contamination or a risk of pollution. The risk of contamination is, I am satisfied, of a minor nature. The evidence of disturbance on the site, disturbance of the soil and disturbance of material that may have been contaminated by the petrol service station activities, is not very high.

A vacuum cleaning structure was initially constructed by the respondents. It has been removed, at least to a major extent, but in the construction of that structure holes were dug, poles or beams inserted, and the retaining wall has been demolished, so there has been some, although at this stage I think minor, disturbance of the soil on the site, and that might lead to contamination.

More serious in my opinion is the risk of pollution from the loose fill that is presently upon the site. There is no doubt that loose fill poses a risk. There are drains on the site that lead into the council's stormwater system, and in a case of weather conditions which promote it, that loose fill might well escape.

Mr Noaman's solution for that problem, which he recognises, is to pour a concrete slab over all the loose fill. I do not accept that that is a solution because, once again, no details or information as to how that is to be done have been furnished to the council. It would need to be the subject of investigation and approval by the council to alleviate the council's concerns. It is therefore not a solution. The solution lies in protecting that area of the site which has been disturbed, and that was the subject of the order already made by Cowdroy J.

Thirdly, this is a case where the council is acting to uphold the law. The case is really about whether what the respondents have done required development consent. The council alleges that it did. The respondents say they were merely repairing a bad site. The council's action is taken simply to uphold the law which requires activities to be undertaken with development consent, which in turn requires the approval of the council and requires assessment by the council. That has not taken place.

The next matter which I take into account on the question of the balance of convenience is that I am not convinced that there is a prejudice to the respondents. Mr Sahade tried, I think courageously, to show that there is a financial prejudice to the respondents by making these orders because it will prevent them from using the property for commercial purposes. But I have no evidence whatsoever as to whether they have been using it for a commercial purpose, nor indeed, if there was a commercial purpose, what the extent of that purpose was.

What I know from the evidence is that the respondents, or some of them, have entered into a contract to purchase the property; that the contract has not been completed; that the respondents, or some of them, have entered upon the property under licence from the vendor; that part of the property has been, at least until the last week, used and operated as a petrol station. I am prepared to infer, since the activities carried out by the respondents are not on that part of the site, that it is still being used for a service station, but I have no evidence for whose benefit it is still being used and I have no evidence of any financial benefit which the respondents obtained from the site except their possibility of ultimate ownership.

I accept, as Mr Sahade submitted, that there will be a delay caused to the respondents by the making of these orders. There is no doubt that the matters which the orders require, that is the furnishing of a structural engineer's certificate, the carrying out of the siltation works, the furnishing of a development application and the obtaining, if possible, development consent, will all take time. That is a consequence which the respondents should bear, but I do not think that it is a prejudice which outweighs all other factors.

Lastly, in connection with the balance of convenience, I mention the question of undertaking as to damages. Miss Duggan, on behalf of the council, made clear that an undertaking was not offered. It has been the practice in this Court not to withhold interlocutory relief because an undertaking has not been offered in a case where the interlocutory relief is sought by a public authority in pursuance of its public duties. This is such a case and I am not prepared to withhold interlocutory relief because the undertaking was not furnished.

I come now to the orders. I am prepared to make the orders that the council seeks, subject to two modifications.

The respondents made clear through Mr Sahade that they would propose to pour a concrete slab over the loose fill on the bitumen area, as I have earlier indicated. As a consequence of that revelation, Miss Duggan made an application to the Court to amend the first order sought by the council so that it restrained the respondents not only from carrying out landfilling and earthworks, but also from carrying out any building works. I think that is an appropriate modification to make.

The second modification arises from Mr Sahade's justifiable complaint and Miss Duggan's concession that the order made by Cowdroy J is wide enough to impact upon the petrol station because it required the placing of siltation works along the full length of the property. I accept the concession made by Miss Duggan and also the submission made by Mr Sahade that the siltation works outlined in the order that is sought ought to be confined to that area upon which the respondent has been carrying out these activities, which might be called the disturbed area.

I want to say one final thing, which is that what I understand from this application today is that the respondents are anxious to get on with what they want to do. They have acquired or taken possession of a site that was in bad repair and have tried to fix that up. They intend to lodge a development application.

The council, on the other hand, sees works going on about which it has no information, but which might be satisfactory. The council has not sought demolition of any of the works, and it may be that the furnishing of proper and adequate information to the council, including a structural engineer's certificate, the carrying out of the siltation works required by the order which is proposed, and the furnishing of a development application, might allay the concerns of the council. Those things I do not know, but it seems to me appropriate therefore that I make the orders but grant all parties liberty to apply on two days notice so that the orders can be moulded in accordance with events as they unfold.

The choice I have in relation to an application for costs in this matter is either that the usual rule be applied and that costs follow the event, that is, that the party who is successful in obtaining the orders receive its costs, and that in this case would be the council.

However, I have another choice and that is, as Mr Sahade seeks, that I reserve the question of costs. I intend to reserve the question of costs for this reason. What I have done today is what a court normally does in an interlocutory application, that is, proceed to make orders on the only evidence I have available to me. All I have is evidence that persuades me that the interlocutory injunctions ought to be granted, but I think that the unfolding of the case as it proceeds has a bearing on the whole of the costs, and I think it is appropriate to reserve them and to await the outcome of the whole case, and I propose to do that.

I am concerned with the expression in the draft orders of the word "immediately" . When breach of an order of the Court would have serious consequences on the respondents, I think the words ought to be more precise and I propose to replace the words "immediately" where they appear in two places with a more specific time.

The only question is whether I say by 5.00 pm tomorrow or by 5.00 pm on Friday. Again I am concerned about the consequences of non-compliance, and although I have heard from the bar table about telephone calls to suppliers, nonetheless it is a matter that has to be organised. There has been a risk since this case came before the Court that there will be a rain event. That is a risk that I hope does not happen, but I think I have to give the respondents some time, and I propose to replace the word "immediately" where it first appears with the word by 5.00 pm on 4 February 2000, which is the day after tomorrow.

DUGGAN: Might I just interrupt, and I apologise for that. Friday means Monday as far as enforcement goes, because if your Honour says 5.00 pm on Friday.

DUGGAN: It's going to make it very difficult for us to approach your Honour for an urgent order.

HER HONOUR: You might be able to do that. You can but it's difficult, I agree.

DUGGAN: If we can say 3.00 pm, that way I can have somebody inspect it and if need be we can make the necessary phone call before the Registry closes.

HER HONOUR: Yes, I think that is a reasonable amendment. As to the hessian, I think that ought to be a week. That is 5.00 pm on 9 February.

The formal orders I make are as follows. I propose to read them out, but I will also refer to where they appear so that it saves counsel and my associate copying down word for word.

I make an order in terms of order 1 in the class 4 application but with the insertion of the words "or any building works" . It will read as follows:

(1) An order pending further or other orders that the respondent, their servants or agents be restrained from carrying out landfilling and earthworks or any building works (the works) on lot 3 and 4 in deposited plan 3372 known as 315 Victoria Avenue, Chatswood (the property).

I make an order in the form of order 2 in the class 4 application. It will read as follows:

(2) An order, pending further or other orders, that the respondents, their servants or agents be restrained from carrying out alterations and additions to an existing building on the property (the alteration works).

I make order 3 in the form of a draft order handed up by the parties amended as to time in the way that I have indicated. It will read as follows:

(3) An order that the respondents, their servants or agents by 3.00 pm on 4 February 2000 place hay bales and geotech fabric in the positions shown in blue on the plan annexed to these orders and marked A, and by 5.00 pm on 9 February 2000 cover from top to bottom the full length of the perimeter fence or chain mesh fence in that location shown blue on the said plan in hessian cloth to ensure that no dust, sediment or other similar material escapes from the property as a result of the works having been carried out.

I make order 4 as appears as number 3A in the further orders sought by the council. It will read as follows:

(4) An order that the respondents obtain and submit to the council a certificate by a certified practising structural engineer certifying,

(a) structural adequacy of the existing building to bear the load of the slab placed on that building; (b) the adequacy and appropriateness of the design of the slab to ensure it is structurally adequate, and (c) the adequacy of the keying-in of the slab to the existing building. Such certificate is to be provided to the council within seven days of the date of this order. Until such time as the certificate is provided to the council, the respondent shall within 24 hours of the date of this order take all steps to ensure that all buildings on the property, namely the building below the slab and the building into which the slab is keyed-in, is secured to ensure that access is prevented to that area.

The next order I make is in terms of 3B in the further orders sought by the council. It will read as follows:

(5) An order that by 5.00 pm on 3 February 2000 the respondents take all steps to ensure the drains being the drains identified on the plan annexed to these orders and marked in red thereon, are covered by geotextile fabric and isolated by bunding to ensure no silt or contaminants can enter the drains.

I grant liberty to the parties to apply on three days notice.

I stand the proceedings over to the callover before the Registrar on 15 February 2000.

The costs of the application for interlocutory relief and the hearing today 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.

Such certificate is to be provided to the council within seven days of the date of this order. Until such time as the certificate is provided to the council, the respondent shall within 24 hours of the date of this order take all steps to ensure that all buildings on the property, namely the building below the slab and the building into which the slab is keyed-in, is secured to ensure that access is prevented to that area.

46. The next order I make is in terms of 3B in the further orders sought by the council. It will read as follows:

47. I grant liberty to the parties to apply on three days notice.

48. I stand the proceedings over to the callover before the Registrar on 15 February 2000.

50. The costs of the application for interlocutory relief and the hearing today are reserved.

At a glance

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Judgment (69 paragraphs)

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Cited By (7)