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Eblen Investments Pty Ltd v City of Holdfast Bay [2005] SAERDC 8 (7 February 2005)

Last Updated: 8 February 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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EBLEN INVESTMENTS PTY LTD v CITY OF HOLDFAST BAY

Judgment of Her Honour Judge Trenorden (ex tempore)

7 February 2005

LOCAL GOVERNMENT - TOWN PLANNING

Section 84 enforcement notice issued by Council - appellant appealed against notice - argument in relation to suspension of direction of notice - Council neither consents to, nor opposes, an order of the Court suspending the direction - undertaking given by director of appellant company - order suspending part of the direction of the notice.

Development Act 1993, referred to.

EBLEN INVESTMENTS PTY LTD v CITY OF HOLDFAST BAY
[2005] SAERDC 8

THE COURT DELIVERED THE FOLLOWING EX-TEMPORE JUDGMENT:

1 Pursuant to Development Application No 110/612/04, Eblen Investments Pty Ltd ("the appellant") informed the City of Holdfast Bay ("the Council") that it was proposing to undertake certain works described by the Council as internal rearrangement of an existing building for service trade premises in respect of a building at 114 Brighton Road, Glenelg East, or thereabouts. The building is currently used by the appellant company, trading as Eblen Subaru and there are other companies operating therefrom as well, including George Eblen Pty Ltd, for the purpose of administration and offices, display area for new cars, service centre, spare parts storage and mechanical workshop, together with ancillary facilities including staff amenities and wet areas, according to the evidence of Mr Eblen today.
2 Mr Eblen’s evidence was that a crash repair business previously operated from part of the building, and that this business vacated the building in about January 2004.
3 The appellant is seeking to rearrange the internal areas of the building, and in particular, and this is the subject of the hearing today, to move to a new location within the building. Offices and workstations together with staff amenities and toilet facilities are proposed to be established in the area or part of the area which was previously occupied by the crash repair business, and that area is shown as the hatched area on Exhibit A2. The appellant asserts that such activity does not involve development according to the Development Act 1993, and if it is development, it is complying development.
4 It would appear that some work has already taken place with the new building, and I heard evidence from Mr Eblen, indicating that.
5 In response to work taking place, the Council issued a notice pursuant to s84 of the Development Act directing the appellant to cease all work and to remove what was alleged to be building work, within 28 days of the date of the notice, the Notice having been issued on 26 November 2004. The appellant company appealed against the Notice and the hearing today upon the application to suspend the direction, is as a consequence of that appeal.
6 On 21 January 2005, Commissioner Hodgson of this Court, ordered a suspension of that part of the s84 Notice which required the appellant to remove the building work within 28 days of the date of the Notice. So what is for decision today is whether the Court should suspend the other part of the direction.
7 I note that the position of the respondent Council was to neither consent to, nor oppose, an order of the Court suspending the balance of the direction.
8 I have heard sworn evidence today from Mr Peter Eblen, the sole director of the appellant company, also of George Eblen Pty Ltd, and I note in passing that the appellant company trades as Eblen Subaru. Mr Eblen was authorised to give evidence on behalf of the appellant and in that context I note that not only is he the sole director but he is also the managing director and the major shareholder in the appellant company, which is a family business, there being only one other shareholder.
9 Mr Eblen has described the work that the appellant proposes to undertake in the hatched area on Exhibit A2; indeed the evidence is that certain work had commenced within the building to give effect to part of the works described in the said Development Application. His further evidence was that that work had stopped and has resumed again this morning. The appellant wishes to continue with that work on account of the potential prejudice to the company’s dealership if the work cannot be completed promptly. In that context, I refer to Exhibit A1 which is a letter from Subaru Australia Pty Ltd directed to Mr Peter Eblen as dealer principal of Eblen Subaru which indicates quite strongly that Subaru may well be looking to terminate the relationship unless the changes that Subaru Australia required, were implemented promptly.
10 Mr Eblen gave a sworn undertaking on behalf of the appellant and in his capacity as a sole director of the appellant company, that if the appellant’s argument in the appeal fails and it is found that the work involves development and that ultimately the appellant does not obtain development approval, the appellant will forthwith thereafter and at its own cost in all things, remove the work.
11 In the circumstances, and having regard to the evidence given by Mr Eblen, and the undertaking given by him on behalf of the appellant and as a director of the appellant, I am prepared to, and now make an order suspending that part of the direction in the s84 Notice issued on 26 November 2004 by the Council wherein the appellant was directed to cease all work forthwith within that part of the building identified in the Notice and now identified as the yellow hatched area on Exhibit A2. That plan will be appended to the formal order of the Court. The suspension is to apply until further order and is in addition to the suspension previously granted by Commissioner Hodgson on 21 January 2005.
12 The appeal is adjourned for hearing, to be heard with ERDC No 489 of 2004, commencing on-site at 10.30am on Wednesday 16 March 2005 and continuing on Thursday 17 March 2005.

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1	Pursuant to Development Application No 110/612/04, Eblen Investments Pty Ltd ("the appellant") informed the City of Holdfast Bay ("the Council") that it was proposing to undertake certain works described by the Council as internal rearrangement of an existing building for service trade premises in respect of a building at 114 Brighton Road, Glenelg East, or thereabouts. The building is currently used by the appellant company, trading as Eblen Subaru and there are other companies operating therefrom as well, including George Eblen Pty Ltd, for the purpose of administration and offices, display area for new cars, service centre, spare parts storage and mechanical workshop, together with ancillary facilities including staff amenities and wet areas, according to the evidence of Mr Eblen today.
2	Mr Eblen’s evidence was that a crash repair business previously operated from part of the building, and that this business vacated the building in about January 2004.
3	The appellant is seeking to rearrange the internal areas of the building, and in particular, and this is the subject of the hearing today, to move to a new location within the building. Offices and workstations together with staff amenities and toilet facilities are proposed to be established in the area or part of the area which was previously occupied by the crash repair business, and that area is shown as the hatched area on Exhibit A2. The appellant asserts that such activity does not involve development according to the Development Act 1993, and if it is development, it is complying development.
4	It would appear that some work has already taken place with the new building, and I heard evidence from Mr Eblen, indicating that.
5	In response to work taking place, the Council issued a notice pursuant to s84 of the Development Act directing the appellant to cease all work and to remove what was alleged to be building work, within 28 days of the date of the notice, the Notice having been issued on 26 November 2004. The appellant company appealed against the Notice and the hearing today upon the application to suspend the direction, is as a consequence of that appeal.
6	On 21 January 2005, Commissioner Hodgson of this Court, ordered a suspension of that part of the s84 Notice which required the appellant to remove the building work within 28 days of the date of the Notice. So what is for decision today is whether the Court should suspend the other part of the direction.
7	I note that the position of the respondent Council was to neither consent to, nor oppose, an order of the Court suspending the balance of the direction.
8	I have heard sworn evidence today from Mr Peter Eblen, the sole director of the appellant company, also of George Eblen Pty Ltd, and I note in passing that the appellant company trades as Eblen Subaru. Mr Eblen was authorised to give evidence on behalf of the appellant and in that context I note that not only is he the sole director but he is also the managing director and the major shareholder in the appellant company, which is a family business, there being only one other shareholder.
9	Mr Eblen has described the work that the appellant proposes to undertake in the hatched area on Exhibit A2; indeed the evidence is that certain work had commenced within the building to give effect to part of the works described in the said Development Application. His further evidence was that that work had stopped and has resumed again this morning. The appellant wishes to continue with that work on account of the potential prejudice to the company’s dealership if the work cannot be completed promptly. In that context, I refer to Exhibit A1 which is a letter from Subaru Australia Pty Ltd directed to Mr Peter Eblen as dealer principal of Eblen Subaru which indicates quite strongly that Subaru may well be looking to terminate the relationship unless the changes that Subaru Australia required, were implemented promptly.
10	Mr Eblen gave a sworn undertaking on behalf of the appellant and in his capacity as a sole director of the appellant company, that if the appellant’s argument in the appeal fails and it is found that the work involves development and that ultimately the appellant does not obtain development approval, the appellant will forthwith thereafter and at its own cost in all things, remove the work.
11	In the circumstances, and having regard to the evidence given by Mr Eblen, and the undertaking given by him on behalf of the appellant and as a director of the appellant, I am prepared to, and now make an order suspending that part of the direction in the s84 Notice issued on 26 November 2004 by the Council wherein the appellant was directed to cease all work forthwith within that part of the building identified in the Notice and now identified as the yellow hatched area on Exhibit A2. That plan will be appended to the formal order of the Court. The suspension is to apply until further order and is in addition to the suspension previously granted by Commissioner Hodgson on 21 January 2005.
12	The appeal is adjourned for hearing, to be heard with ERDC No 489 of 2004, commencing on-site at 10.30am on Wednesday 16 March 2005 and continuing on Thursday 17 March 2005.