Land and Environment Court New South Wales

• Medium Neutral Citation: Council of the City of Sydney v Lamb (No 2) [2012] NSWLEC 177
• Hearing dates: 26 July 2012
• Decision date: 26 July 2012
• Jurisdiction: Class 4
• Before: Biscoe J

Decision

(1) The respondents, their servants, agents and contractors are restrained from undertaking any development that requires development consent at 95 Pyrmont Street, Pyrmont without first having obtained development consent therefor, including (without limitation on the generality of the foregoing) demolishing or altering the building or works comprising the remnant sandstone wall at the street frontage of 95 Pyrmont Street, Pyrmont; (2) The first respondent is to pay the applicant's costs in the sum of $2,000.

• Catchwords: CIVIL ENFORCEMENT - carrying out work for which development consent is required without development consent.
• Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A, 121B; Sydney Local Environmental Plan 2005 Schedule 9
• Cases Cited: Council of the City of Sydney v Lamb [2012] NSWLEC 175
• Category: Principal judgment
• Parties: Council of the City of Sydney (Applicant); Graham Trevor Lamb (First Respondent); Sydney Combined Building and Maintenance Services Pty Ltd (Second Respondent)
• Representation: COUNSEL: Mr A Hawkes, solicitor (Applicant); Mr G Lamb, in person (First Respondent); N/A (Second Respondent); SOLICITORS: Council of the City of Sydney (Applicant); N/A (Respondents)
• File Number(s): 40758/12

ex tempore Judgment

1 In this Class 4 civil enforcement proceeding, the applicant, the Council of the City of Sydney, claims that, in breach of s 76A of the Environmental Planning and Assessment Act 1979 (EPA Act), the respondents have carried out development without development consent. Injunctive and other relief is sought. The claim relates to demolition and alteration work at 95 Pyrmont Street, Pyrmont (the Site). The respondents are Graham Trevor Lamb and his contractor, Sydney Combined Building and Maintenance Services Pty Ltd. Mr Lamb appears and is self-represented in the proceedings. His contractor has not appeared.

2 Yesterday evening I granted an urgent interlocutory injunction until 3 pm today to restrain the respondents from demolishing or altering a heritage sandstone retaining wall on the Site fronting 95 Pyrmont Street: Council of the City of Sydney v Lamb [2012] NSWLEC 175. I am now hearing the proceedings on a final basis.

3 The facts and the alleged breach of the EPA Act are not contested. The Site forms part of Lot 1 in DP 75877. This Lot also has a frontage to Union Street, Pyrmont with the building on that side of the Lot known as 18 Union Street. Demolition and alteration work has been carried out by the respondents to a heritage building fronting 95 Pyrmont Street. The building is a heritage item under Schedule 9 to the Sydney Local Environmental Plan 2005 and such work cannot be carried out without development consent. There is no development consent for such work. In 2002 the Council granted development consent for "refurbishment and alterations" to existing heritage buildings and the erection of a two-storey in-fill building all to be used for commercial purposes at 18 Union Street and 95 Pyrmont Street. "Refurbishment and alterations" does not include demolition.

4 It appears that over the years since the development consent was granted much of the heritage building has been demolished. More recently, in July 2012, Mr Lamb's contractor, at Mr Lamb's direction, has carried out demolition work on one side wall such that it is now virtually gone, some demolition work has been done on the opposite side wall, and a relatively small amount of demolition work on the wall fronting 95 Pyrmont Street.

5 A few days ago a council officer gave an oral direction to Mr Lamb to cease work on the Site because there was no development consent to do it. That was followed by an order dated 25 July 2012 pursuant to item 19(a) in the Table of s 121B of the EPA Act requiring immediate cessation of the unlawful works. Mr Lamb has told me he mistakenly thought that this was only referable to the front wall. Consequently, he directed his contractor, the second respondent, to proceed with work to one of the side walls. However, the order was also referable to that wall. It was in these circumstances that this proceeding was commenced last evening when I granted an urgent interlocutory injunction until 3 pm today.

6 In my opinion, it has been established that the respondents have failed to comply with the requirements of s 76A of the EPA Act by carrying out development at premises otherwise than in accordance with a development consent, and it is appropriate that an injunction should issue against them. Mr Lamb does not contest this.

7 The Council also seeks costs against Mr Lamb only. Mr Lamb has indicated that if a costs order is made, he is agreeable to it being in the sum proposed by the Council, namely $2,000. This sum seems reasonable and I consider that it is appropriate that a costs order in that amount should be made against him.

8 The orders of the Court are as follows:

(1) The respondents, their servants, agents and contractors are restrained from undertaking any development that requires development consent at 95 Pyrmont Street, Pyrmont without first having obtained development consent therefor, including (without limitation on the generality of the foregoing) demolishing or altering the building or works comprising the remnant sandstone wall at the street frontage of 95 Pyrmont Street, Pyrmont.

(2) The first respondent is to pay the applicant's costs in the sum of $2,000.

(3) The exhibits may be returned.

Decision last updated: 30 July 2012