Land and Environment Court New South Wales Medium Neutral Citation: Friends of Gardiner Park Inc v Bayside Council [2020] NSWLEC 176 Hearing dates: 7, 9 and 10 December 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Class 4 Before: Pepper J Decision: Application for interim injunctive relief refused. The Court notes the undertaking given by the Council not to remove or demolish the specified heritage items pending the final determination of the proceedings. Costs are reserved. Catchwords: INTERLOCUTORY APPLICATION: application to restrain Council from upgrading sporting fields – whether consent needed to carry out upgrade – whether environmental impact statement required – whether undertaking not to demolish specific heritage items sufficient – whether upgrade remediation works requiring consent – whether plans of management breached by upgrade – whether future use of park after upgrade inconsistent with active recreation use under plans of management – whether irreparable harm to trees by upgrade – adverse dust, sedimentation, contamination and stormwater impacts if upgrade did not proceed - balance of convenience favoured the Council – interim relief refused. Legislation Cited: Environment Planning and Assessment Regulation 2000 cl 228(1) and (2) Environmental Planning and Assessment Act 1979 ss 5.5(1), 5.4(a), 5.7(1) and Pt 5 Div 5.1 Local Government Act 1993 s 35 Rockdale Local Environmental Plan 2011 Sch 5 State Environmental Planning Policy (Infrastructure) 2007 cll 5(2), 65(3) and Dictionary State Environmental Planning Policy No 55 – Remediation of Land cll 4(1), 9, 14 and 19 Cases Cited: Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240; (2018) 98 NSWLR 439 Michael Ryan v Northern Regional Planning Panel (No 3) [2019] NSWLEC 168 Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 Category: Principal judgment Parties: Friends of Gardiner Park Inc (Applicant) Bayside Council (First Respondent) Polytan Asia Pacific Pty Ltd (Second Respondent) Representation: Counsel: P King (Applicant) M Astill (First Respondent) L Nurpuri (Second Respondent) Solicitors: Bondi Beach Solicitors (Applicant) HWL Ebsworth Lawyers (First Respondent) Bartier Perry Lawyers (Second Respondent) File Number(s): 2020/334247 Judgment The Applicant Seeks to Restrain a Sporting Fields Upgrade at Gardiner Park 1. By notice of motion filed on 24 November 2020, the applicant, Friends of Gardiner Park Inc ("Friends"), sought various interlocutory orders principally designed to, among other things, restrain certain works being carried out by the first respondent, Bayside Council ("the Council'), through the second respondent, Polytan Asia Pacific Pty Ltd ("Polytan"), on sporting fields at Gardiner Park, Banksia. 2. The notice of motion filed by Friends was in the following terms: 1 Order pending final hearing of the Summons pursuant to Environmental Planning and Assessment Act 1979 sections 9.45 and 9.46 restraining each Respondent from taking any steps to commence works in Gardiner Park Banksia with respect to the purported decision of the First Respondent made on or about 27 10 2020 to commence demolition and other works in Gardiner's Park and to approve the proposed use of Gardiner's Park as an enclosed synthetic sports field under Environmental Planning and Assessment Act 1979 Part 5.1 without an environmental impact statement and without development consent. 2 Alternatively, Order restraining the works on Gardiner Park proposed by the Respondents pending final hearing of the Summons. 3 Order pursuant to Land and Environment Court Rule 4.3 directing the First Respondent to make available to the Applicant any document that records matters relevant to the decision made on or about 27 10 2020 to commence works in Gardiner's Park and to approve the proposed use of Gardiner's Park as an enclosed synthetic sports field under Environmental Planning and Assessment Act 1979 Part 5.3 or otherwise. 4 Order directing the First Respondent to furnish to any other party a written statement setting out its reasons for the decision, being a statement that includes— (i) the public authority's findings on any material questions of fact, and (ii) the evidence on which any such findings were based, and (iii) the public authority's understanding of the applicable law, and (iv) the reasoning process that led to the decision, 5 Order for preliminary discovery of i. the contract between the First and Second Respondents dated on or about 30 10 2020 ii. the Council Minutes of 27 10 2020 and/or which records any decision as to the works iii. the Construction Environmental Management Plan for or with respect of Gardiner's Park, referred to at page 76 of the AECOM Report dated 26 10 2020. 6 Further or alternatively, an order for expedition of the proceedings. 7 Such further or other order as to the Court seems fit. 8 Costs. 1. The difference between the first and second order for relief was not clear, and upon enquiry from the Court, Friends abandoned order 1 and relied only on the relief sought in order 2. 2. The application took three days to be heard due entirely to the manner by which Friends's legal representatives conducted the motion. For example, much of the relief sought in the motion was abandoned after discussion as to its utility; orders for the preparation of the hearing were not complied with resulting in delay in its commencement; written submissions were not pressed but were later required to be supplemented when new matters were raised during the hearing of the application; the pleadings were sought to be amended with no notice to the respondents (especially the second respondent) only later for such application to be abandoned then resurrected again after the motion had concluded; and an application for leave to reopen was made after the conclusion of the hearing of the application in order to clarify an answer given by counsel for Friends, Peter King, as to the heritage status of the trees in Gardiner Park likely to be impacted by the proposed upgrade. 3. While costs of the motion were, by agreement, reserved to the trial judge (in anticipation of an argument that the proceedings have been brought in the public interest if Friends are ultimately unsuccessful in the proceedings), at the very least, the costs of the additional two days of hearing required by Friends's ill preparedness ought not be visited upon the Council should the latter not prevail at the final hearing (that is, the costs of the hearing of the application on 9 and 10 December 2020). If a costs order is ultimately made against Friends, serious consideration should be given to whether or not that order should be made personally against its legal representatives in respect of the conduct of the hearing on 9 and 10 December 2020. This will, however, be a matter for the trial judge. 4. The works described below have already commenced but have been suspended upon an undertaking being given by the Council (when the matter first came before the Court on 25 November 2020) not to resume them until such time as this interlocutory injunction application has been determined. 5. In my view, while there may be questions to be tried, they are not sufficiently serious to warrant the grant of interim interlocutory relief especially given that the balance of convenience strongly favours the Council, in light of the paucity of cogent evidence relied upon by Friends in support of its application, the notice of motion must be dismissed. The Council Seeks to Upgrade Gardiner Park's Sporting Facilities 1. Gardiner Park has the following non-controversial features: 1. it is zoned under the Rockdale Local Environmental Plan 2011 ("the LEP") and is community land under the Council's Plan of Management for Public Open Space 2015 ("the 2015 POM") made under the Local Government Act 1993 ("LGA"); 2. it is situated in the residential suburb of Banksia located in southern Sydney and is used by the community; 3. it is identified as a heritage item under the LEP (item I79 of Sch 5). Its topography is varied, ranging from open space, flat, undulating, and sloping land. There are some sandstone escarpments; 4. it is known to contain contamination; and 5. on occasion it is affected by a 1% AEP flood event. 1. The proposed upgrade works at Gardiner Park comprise the following ("the works"): 1. the installation of two standard football fields: Field One surfaced with synthetic turf, and Field Two with grass turf; 2. ground levelling works for both pitches; 3. the removal of one synthetic cricket pitch; 4. the surfacing of the ambulance driveway entering from Wolli Creek Road and the installation of a locked gate at the start of the playing surfaces; 5. the installation of associated in-ground drainage for both fields including installation of a stormwater detention basin near the northern end of Field Two; 6. the installation of a 2m wide paved path on the northern and southern side of Field One, with a wider area to allow for a coach/technical area on the southern side; 7. the installation of a 1.2m high perimeter chain-link wire fence around Field One; 8. the installation of a 6m high ball barrier chain-link wire fence behind goal at the western and eastern ends of Field One and at the southern end of Field Two; and 9. the raising of the synthetic field in accordance with the flood study information to avoid damage to the proposed synthetic field. 1. Pre-construction works have already commenced as follows: 1. temporary construction/exclusion fencing has been erected and site facilities have been installed; 2. a tree protection zone ("TPZ") has been installed; 3. silt fencing has been installed; 4. a construction site entrance for surface trucks has been installed; 5. tree pruning has been carried out; and 6. the grass on the sporting fields has been sprayed with poison and is yellow and dead or dying. The Environmental and Planning Statutory Framework Governing the Upgrade 1. The upgrade is an "activity" for the purpose of Div 5.1 of Pt 5 of the Environmental Planning and Assessment Act 1979 ("EPAA"), requiring environmental assessment under that Part. Under s 5.5(1) of the EPAA, the Council has the following duty: 5.5 Duty to consider environmental impact (1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. 1. Relevantly, under s 5.7(1)(a) of the EPAA, the Council is also obliged to do the following: (1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment, unless— (a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity— (i) prepared in the prescribed form and manner by or on behalf of the proponent, and (ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner,... 1. In discharging its duties the Council must take into account the factors contained in cl 228(1) and (2) of the Environment Planning and Assessment Regulation 2000 ("EPA Regulations"): 228 What factors must be taken into account concerning the impact of an activity on the environment? (1) For the purposes of Part 5 of the Act, the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment include— (a) for activities of a kind for which specific guidelines are in force under this clause, the factors referred to in those guidelines, or (b) for any other kind of activity— (i) the factors referred to in the general guidelines in force under this clause, or (ii) if no such guidelines are in force, the factors referred to subclause (2). (2) The factors referred to in subclause (1)(b)(ii) are as follows— (a) any environmental impact on a community, (b) any transformation of a locality, (c) any environmental impact on the ecosystems of the locality, (d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality, (e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations, (f) any impact on the habitat of protected animals (within the meaning of the Biodiversity Conservation Act 2016), (g) any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air, (h) any long-term effects on the environment, (i) any degradation of the quality of the environment, (j) any risk to the safety of the environment, (k) any reduction in the range of beneficial uses of the environment, (l) any pollution of the environment, (m) any environmental problems associated with the disposal of waste, (n) any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply, (o) any cumulative environmental effect with other existing or likely future activities, (p) any impact on coastal processes and coastal hazards, including those under projected climate change conditions. 1. The nature of the duties referred to above were recently discussed by Preston J in Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 (at [254]-[258] and [260]-[261), which is not repeated here for the sake of brevity, but to which the Court has had regard, together with the principles espoused by the Court in Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 and Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346. 2. Clause 65(3) of the State Environmental Planning Policy (Infrastructure) 2007 ("ISEPP") provides that certain development may be carried out by a public authority (such as the Council) without the need to obtain development consent: (3) Any of the following development may be carried out by or on behalf of a council without consent on a public reserve under the control of or vested in the council— … (b) environmental management works, (c) demolition of buildings (other than any building that is, or is part of, a State or local heritage item or is within a heritage conservation area). 1. The term "environmental management works" is defined expansively in cl 5(2) of the ISEPP to mean: (a) works for the purpose of avoiding, reducing, minimising or managing the environmental effects of development (including effects on water, soil, air, biodiversity, traffic or amenity), and (b) environmental protection works. 1. The term "environmental protection works" is, in turn, broadly defined in the Dictionary to the Standard Instrument – Principal Local Environmental Plan to mean: environmental protection works means works associated with the rehabilitation of land towards its natural state or any work to protect land from environmental degradation, and includes bush regeneration works, wetland protection works, erosion protection works, dune restoration works and the like, but does not include coastal protection works. 1. Clauses 9, 14 and 19 of the State Environmental Planning Policy No 55 – Remediation of Land ("SEPP 55") are in the following relevant terms: 9 Category 1 remediation work: work needing consent For the purposes of this Policy, a category 1 remediation work is a remediation work (not being a work to which clause 14(b) applies) that is— (a) designated development, or (b) carried out or to be carried out on land declared to be a critical habitat, or (c) likely to have a significant effect on a critical habitat or a threatened species, population or ecological community, or (d) development for which another State environmental planning policy or a regional environmental plan requires development consent, or (e) carried out or to be carried out in an area or zone to which any classifications to the following effect apply under an environmental planning instrument— (i) coastal protection, (ii) conservation or heritage conservation, (iii) habitat area, habitat protection area, habitat or wildlife corridor, (iv) environment protection, (v) escarpment, escarpment protection or escarpment preservation, (vi) floodway, (vii) littoral rainforest, (viii) nature reserve, (ix) scenic area or scenic protection, (x) wetland, or (f) carried out or to be carried out on any land in a manner that does not comply with a policy made under the contaminated land planning guidelines by the council for any local government area in which the land is situated (or if the land is within the unincorporated area, the Minister). … 14 Category 2 remediation work: work not needing consent For the purposes of this Policy, a category 2 remediation work is— (a) a remediation work that is not a work of a kind described in clause 9(a)–(f), or (b) a remediation work (whether or not it is a work of a kind described in clause 9(a)–(f)) that— (i) by the terms of a remediation order, is required to be commenced before the expiry of the usual period under the Contaminated Land Management Act 1997 for lodgment of an appeal against the order, or Note— The usual period for lodgment of an appeal is 21 days or a period prescribed instead by regulations made under the Contaminated Land Management Act 1997. (ii) may be carried out without consent under another State environmental planning policy or a regional environmental plan (as referred to in clause 19(4)), or… … 19 Relationship to other environmental planning instruments (1) If this Policy is inconsistent with another State environmental planning policy, a regional environmental plan or a local environmental plan (whether made before or after this Policy), this Policy prevails, except as provided by this clause and section 36(4) of the Act. (2) (Repealed) (3) If a provision of another State environmental planning policy or of a regional environmental plan, whether made before or after this Policy, requires development consent for a remediation work, a provision of this Policy that permits the carrying out of the work without development consent does not prevail over that provision. (4) If a provision of another State environmental planning policy or of a regional environmental plan, whether made before or after this Policy, permits a remediation work without development consent, a requirement in this Policy to obtain development consent to carry out the work does not prevail over that provision. … 1. The term "remediation" is defined in cl 4(1) of that instrument to mean: remediation means— (a) removing, dispersing, destroying, reducing, mitigating or containing the contamination of any land, or (b) eliminating or reducing any hazard arising from the contamination of any land (including by preventing the entry of persons or animals on the land). 1. Finally, s 35 of the Local Government Act 1993 ("LGA") states: 35 What governs the use and management of community land? Community land is required to be used and managed in accordance with the following— ● the plan of management applying to the land ● any law permitting the use of the land for a specified purpose or otherwise regulating the use of the land ● this Division. The Decision-Making Process of the Council in Granting Approval for the Works 1. The Council engaged AECOM to prepare a Review of Environmental Factors dated 26 October 2020 ("the REF") in respect of the works. The REF included a checklist in relation to the factors under cl 228 of the EPA Regulations. 2. On 27 October 2020 the Council prepared an Environmental Assessment ("the EA") which determined that the upgrade was not likely to significantly affect the environment and that consequently, an environmental impact statement was not required. Accordingly, no environmental impact statement ("EIS") has been prepared by the Council, notwithstanding that it was not in dispute that the works are an "activity" for the purpose of Div 5.1 of the EPAA. 3. No development consent has been obtained by the Council for the works. 4. Rather, on 27 October 2020 the Council signed an approval in relation to the Gardiner Park works ("the approval"). The approval stated the following: Environmental Planning and Assessment Act 1979 Environmental Determination under Section 5.5 in relation to Gardiner Park Sporting Facilities Upgrade It is considered, on the basis of the Review of Environmental Factors for Gardiner Park Sporting Facilities Upgrade (dated 27 October 2020) and attached to this approval, that the environmental impacts associated with the proposal have been adequately assessed and that by adopting the safeguards identified in this assessment, the undertaking of the proposed works is not likely to significantly affect the environment. Consequently the project may proceed subject to implementation of the safeguard measures. An Environmental Impact Statement under section 5.7 of the Environmental Planning and Assessment Act 1979 is not required. Approval 1. On 30 October 2020 the Council entered into a contract with Polytan to carry out the works. Evidence of Friends 1. The application by Friends was supported by a plethora of affidavits, principally from Catriona Carver (affirmed 22 and 24 November and 4 December 2020) and Garnet Brownbill (sworn 24 November, 4 and 9 December 2020), and an expert report of Ian McKenzie, an arborist, dated 4 December 2020. 2. Carver and Brownbill are laypersons who reside in Banksia and who plainly have knowledge of, and use, Gardiner Park. The concerns that they have raised about the works and their effect on the Park are unquestionably genuine and well intentioned. 3. However, little to no weight could be placed on most of the opinions expressed in their affidavits concerning the likely environmental impact of the works on the Park insofar as both witnesses purported to give expert evidence in respect of matters about which they were not qualified and had no expertise. It was for this reason that almost all of the voluminous material exhibited to their affidavits was not accepted into evidence. While the Court can place weight on some of their observational evidence as to how Gardiner Park is presently used, it could not place any weight on their conclusions regarding, for example, the alleged polluting effects of the installation of the synthetic turf, the effect of works on climate change, the heritage impacts of the works, the effect of the poison on the grass on the trees, the effect of the works generally on the trees in the Park, dust and sediment impacts, the impact of any displacement of potentially contaminated fill, the effect of the works on the existing floodway within Gardiner Park, the traffic implications of the works, or even the effect of the works on the cricket players who use the Park (there was no evidence that Brownbill or Carver engage in this pastime). 4. McKenzie's arborist report was, however, in a different category. In his report, McKenzie stated that, in his opinion, the works could have an irreparable effect on approximately 22 trees proximate to the works. 5. Many of the opinions expressed by McKenzie were, however, based on supposition and unproven assumptions. A single illustration will suffice. For example, at paragraph 25 he stated that "the placement and compaction of up to 1.4 metres of fill over major areas of the TPZs of many of the trees assessed as the activity that will have the greatest impact on the trees." The Court was taken to no evidence, despite asking counsel for Friends for it, to support his claim that this would, or was even likely to, occur. Thus, while I have taken his opinions into account, I have placed less weight on his report than urged upon me by Friends. 6. I have also given consideration to a Heritage Referral Response from Louise Thom dated 1 June 2020, that was relied upon by Friends. Thom is a heritage advisor employed by the Council. Thom recommended against supporting the works due to their adverse impact on the heritage significance of Gardiner Park. She relevantly opined as follows: Non-Aboriginal Heritage The statement of significance for Gardiner Park contained in the CMP for Gardiner Park states… "The park continues to be regularly used for both organised sports, including cricket and football, and informal recreation as was originally intended maintaining a known continuity of use of almost 80 years." The formalisation of the playing fields by fencing, turfing and line marking for soccer excludes the park from other user groups. The historic informal use of the park for recreation along with cricket and other sports and community events will be dominated by the soccer teams' use of the field as a home base. The soccer use has an exclusivity which is to the detriment of other users. Aesthetically the fencing and turfing of the main field will alter the appearance of Gardiner Park, which has always been an informal recreation park with soft edged playing fields and minor definition for cricket. In the proposed plan the cricket pitch is to be demolished and replaced by the formal soccer oval. Along the side of the soccer field facing Wolli Creek Road there is to be a 6 metre high fence. This will be highly intrusive due to its close proximity to the road and the original entrance. Around the main oval there is to be a wire mesh fence on a solid 200mm high strip footing will intrude into the open nature of the park. Other 6 metre high fences at the ends of the fields will further obstruct views. Two significant trees from the key historic period of the park are shown on plans as being impacted but no management methodology has been provided. Figure 1 shows the grading of significance of elements in the park, excluding vegetation. It is not clear whether it is proposed to demolish or impact the eastern retaining wall which is shown on the plan as having high significance. Will the new drain impact the stone walls? How will these be repaired? Will a professional stonemason be involved? Evidence of the Council 1. According to the unchallenged affidavit evidence of John Cole, sworn 2 and 8 December 2020 (the solicitor for the Council), any further delay in the completion of the works will have the following deleterious effect: 1. disruption and disadvantage to the Banksia Tigers Soccer Club ("Tigers"); 2. a shortage of sporting fields; and 3. an increase in the time that the sporting fields in Gardiner Park cannot be used by the community, including for the purposes of cricket or other sporting activities. 1. The Council relied upon an expert report of David England dated 2 December 2020, who has expertise in civil engineering, structural engineering and surveying, horticulture and landscape contracting. England deposed to the following environmental effects of further ceasing or delaying the works: 1. dust and sediment impacts as a result of the sprayed grass dying, creating a disturbance for surrounding properties, which will require a watering program to control the dust and the installation of sediment fencing requiring regular maintenance; 2. the potential loss of 7,400m3 of suitable zero cost fill to be used for the base of the playing fields as a result of the construction of the M6 motorway. This would necessitate the purchase of the fill which would be an additional cost of approximately $300,000 to $500,000 dollars; 3. increased stormwater runoff (already a problem) from the exposed soil surface following on from the poisoning of the turf; and 4. the possible conveyance of contaminated material from the exposed silt areas into the downstream water system (the contaminated areas are to be capped as part of the works). 1. In short, it was his opinion that "the delay to works for the upgrade of the playing fields on Gardiner Park increases the risk to the community of undesirable environmental outcomes" and will also have a "significant impact on the monetary cost to the community". 2. England also gave evidence of the fact that some heritage items (drainage line, steps and cricket pitch) can be maintained and covered without the need for removal. 3. Finally, it was his opinion that the works would not constitute irreparable harm to the environment because the playing fields and their surrounds "can be reinstated to their current form by removal of all imported materials and reinstatement of the current landform". Legal Principles to be Applied in the Grant of Interim Injunctive Relief 1. The relevant legal principles applying to an application for interlocutory injunctive relief are well known and have been stated in a plethora of cases (see for example, Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1). They were helpfully summarised by Biscoe J in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 (at [4]-[6], especially at [4]): 4 An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 at 153-4; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 at [13] (Campbell J); Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 at [6] (Preston CJ). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent or a third party would be likely to suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Tegra at [18]–[19]. Thus, the balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536 (McLelland J). Although normally the Court does not undertake an interlocutory trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case (Beecham at 622), in some cases the strength of the applicant's case, above the threshold of a serious question, may be relevant to the risk of doing an injustice: Castlemaine at 154; Kolback at 536. 1. More recently, Robson J expanded upon these principles in Michael Ryan v Northern Regional Planning Panel (No 3) [2019] NSWLEC 168 (at [20]-[26]): 20 The principles governing the grant of interlocutory relief are well-known. The applicant must demonstrate there is a serious question to be tried, such that there is a sufficient likelihood of success to justify the granting of the interlocutory injunction, and that the balance of convenience favours granting the injunction. These principles have been stated on many occasions: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 ('O'Neill') 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 (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 ('Tegra') at [6]. Serious question to be tried 21 In considering the requirements in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] HCA 1 for a "prima facie" case, the following was stated in Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths) at [21-350]: "the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief were granted." Put another way, the applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending trial: O'Neill at [65]. Balance of convenience 22 In Iseek Communications Pty Ltd v Jones [2017] NSWSC 251 at [46], Emmett AJA stated the factors that should be taken into account in determining where the balance of convenience lies as follows: …the prima facie strength of [the applicant's] case, whether the potential damage that [the applicant] is likely to suffer if an order is not made outweighs the potential damage that [the respondents] are likely to suffer if an order is made and whether [the applicant's] undertaking as to damages is adequate. 23 Then it becomes a matter of seeing if, in all the circumstances, the Court should nonetheless exercise its discretion by declining to grant an interlocutory injunction: Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 at [34]. 24 In Tegra at [41], Preston CJ of LEC further noted (some citations omitted): The court may consider the relative strength of each party's case: Hubbard v Vosper [1972] 2 QB 84 at 96. Courts in Australia have taken the view that the relative strength of each party's case should be considered along with all the other factors in evaluating the balance of convenience… 25 The role of relative strength of the case in the consideration of balance of convenience has been considered on a number of occasions since that decision. For example, see Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157 at [53], [76]. 26 More recently, in SAI Global Property Division Pty Ltd (ACN 089 586 872) v Jones [2018] NSWSC 438 at [105], Slattery J applied the following principles enunciated by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536 regarding what must be established to obtain an interlocutory injunction (some citations omitted): ...Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled…Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application… … Apart from this, although normally the Court "does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case" (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically "the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559… Is There a Serious Question to be Tried? 1. Ultimately (it was initially unclear what serious questions Friends were relying upon as articulated by its counsel, and moreover, these questions continued to evolve from the first iteration of its written submissions filed on 25 November 2020 - not pressed by King at the hearing - to the second and third iteration of its written submissions), Friends contended that the proceedings raised the following serious questions to be tried: 1. first, that the Council breached its obligation to obtain an EIS under Pt 5 of the EPAA ("the EIS question"); 2. second, that the Council required development consent pursuant to cl 65(3)(c) of the ISEPP in respect of the carrying out of the works on certain heritage items ("the ISEPP question"); 3. third, that the Council required development consent to carry out category 1 remediation works pursuant to cl 9 of SEPP 55 ("the SEPP 55 question"); and 4. fourth, that there was non-compliance with the 2015 POM giving rise to a breach of s 35 of the LGA. On day two of the hearing, the question was expanded to include (or perhaps to be in the alternative, it was not clear) the Bayside Council Plan of Management for Community Land and Public Open Space 2016 ("the 2016 POM") ("the POM question"). The EIS Question 1. The EIS question comprised several discrete limbs. First, Friends submitted that in carrying out the assessment contained in the REF and the EA to grant approval for the works, the Council erred in concluding that the activity was not likely to significantly affect the environment. Friends referred to summary tables provided in the REF and EA to argue that insufficient consideration had been given to the environmental impacts identified by the Council in respect of the activity comprising the works. 2. But this is to cavil with the merits of the Council's approval of the works. When the REF and the EA are read in detail (especially the detailed appendices to the REF) it cannot seriously be maintained for the purpose of this application that its determination that the works would not significantly affect the environment was legally flawed. The tables with which Friends took issue are no more than summary distillations of the detailed analyses contained in the REF and the EA; they are required to be read in context, a proposition that Friends seemed to be unwilling or incapable, when pressed, of accepting. The consideration given to the environmental impacts by the Council well exceeded the mere "lip service" characterisation ascribed to it by Friends (Palm Beach at [260(c)]). 3. In support of its argument, Friends focussed upon the fact that the approval stated "that by adopting the safeguards identified in the assessment" the undertaking of the works was not likely to significantly affect the environment. That "safeguards" were needed demonstrated, according to Friends, that the works were likely to significantly affect the environment and that an EIS was therefore required. 4. But as Preston J noted in Palm Beach, there is nothing impermissible about the activity to which the Council has given approval "including any ameliorative measures incorporated as an integral part of the description of the activity" (at [261(d)]). This is precisely what has occurred in the present case when the Council referred to "adopting the safeguards identified in the assessment" in the approval. In other words, the "activity" is the works as ameliorated by the safeguards, not the works alone. 5. Second, Friends complained of the failure of the Council to take into account a mandatory relevant consideration, namely, the 2016 POM, rather than the 2015 POM, in granting approval for the works. Because only the 2015 POM was taken into account in the REF and the EA this amounted to a breach of s 5.5(1) of the EPAA. 6. While there is some force to this argument, it does not, of itself, amount to a serious question to be tried because not only is the 2016 POM referenced in the REF, moreover, and more importantly, a closer analysis of the two documents reveals no material difference exists between them for the purposes of the Council's deliberations under ss 5.5(1) or 5.7 of the EPAA, at least none that Friends were able to identify in this application. 7. Third, Friends argued that, contrary to Palm Beach (at [267] and [268]), the Council had, as evident from the REF, the EA, and the approval, failed to consider the environmental impact of each and every activity arising from the works. That is, while the Council had considered the environmental impacts of the works activity, it had failed to take into account the environmental impacts of the use activity of Gardiner Park. To reinforce its submissions in this regard, it emphasised the singular nature of the description of the "activity" contained in the approval (see the quote above from the approval at [24]). 8. Leaving aside whether or not this is a correct understanding of Preston J's reasons at the paragraphs cited in Palm Beach, the submission is factually misconceived. Both the REF and the EA are replete with references to both the impacts of the works and the impacts of the works on the existing and future use of Gardiner Park. 9. Again, as discussed above, reliance by Friends on the summary tables in the REF and the EA in support of its submission was disingenuous and reflected a marked failure by Friends to engage with the totality of the material before the Council in granting the approval. 10. For these reasons, while Friends may have raised some questions to be tried with respect to the Council's obligations under ss 5.5(1) and 5.7 of the EPAA, I am of the opinion that a serious question to be tried in this regard has not be established. The ISEPP Question 1. The Council conceded that there was a serious question to be tried as to whether, under cl 65(3)(c) of the ISEPP, development consent was needed in respect of the carrying out of the works on various heritage items, namely, the proposed demolition and removal of ("the heritage items"): 1. a small portion of the stairs at the north western corner of the playing fields near the amenities building; 2. a concrete stormwater pipe bisecting the park; and 3. the cricket pitch. 1. This was conceded notwithstanding the decision in Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240; (2018) 98 NSWLR 439 that held that a road is not a "building" for the purposes of the EPAA (at [98]). In other words, it is arguable that the heritage items do not engage cl 65(3)(c) of the ISEPP as a matter of construction. 2. A serious question may also arise as to whether the works in respect of the heritage items are not permissible without consent under that clause of the ISEPP because the whole of Gardiner Park is a heritage item (item I79) under the LEP and the heritage items are located within the Park itself. 3. No doubt for these reasons, the Council was prepared to undertake not to remove or demolish these heritage items pending final determination of the substantive proceedings. 4. To the extent that this might represent a modification of the works, the modification is exempt from further assessment under s 5.4(a) of the EPAA. 5. The undertaking was insufficient for Friends which curiously submitted that it ought not be accepted by the Court because its proffering would breach the Council's contract with Polytan. There are at least two responses to this submission: 1. the contractual arrangements, and any negotiated variation thereof, between the Council and Polytan are a matter for those parties to determine. The contract was not, in any event, before the Court and it could not therefore be determined that the undertaking would give rise to any breach; and 2. it is not only inconsistent with Friends's reliance on the undertaking given by the Council that has caused the works to temporarily stop, it is also inconsistent with the very grant of interim relief that it presently seeks. 1. The ISEPP question did not therefore give rise to a serious question to be tried in light of the undertaking given by the Council, which the Court accepts. Alternatively, if it did give rise to a serious question to be tried, the question was rendered otiose in light of the undertaking given by the Council not to demolish or remove the heritage items pending final determination of the matter. The SEPP 55 Question 1. The serious question to be tried raised by SEPP 55 was whether or not the works constituted category 1 remediation works requiring consent by reason of the contamination present in Gardiner Park (see Appendices K and J to the REF) as required by cl 9 of that instrument. 2. It was all but conceded by the Council that the works were, at least in part, "remediation works" as that term is broadly defined in SEPP 55. 3. However, the Council submitted that these works were category 2 remediation works that did not require consent pursuant to cll 14(2)(ii) and 19(4) of SEPP 55 because the works fell within cl 65(3)(b) of the ISEPP when regard is had to the definition of "environmental management works" in the latter provision. 4. In my view, while the application of cl 65(3)(b) of ISEPP to the works does, contrary to the submissions made by the Council, give rise to a question to be tried, it does not exhibit a sufficient likelihood of success to justify the preservation of the status quo pending trial. Put another way, it does not amount to a serious question to be tried. The POM Question 1. The 2015 POM for Gardiner Park relevantly provides for the following uses of the Park: 1. current use - "Active recreation – Soccer/Cricket"; 2. future use – "Active recreation"; and 3. future permitted purposes – "active recreation needs", which include, for example, sportsground amenities, park furniture, stormwater harvesting, mitigation of climate change, large cultural events, activities, and festivals. 1. A relevantly similar provision is made for its use in the 2016 POM. 2. It was unclear whether by the POM question Friends was contending that the works breached the 2015 and 2016 POM because they amounted to a change of use requiring public notification. If so, then there is no serious question to be tried because it is clear that the works do not involve a change of use of Gardiner Park and the works are permitted under the 2015 and 2016 POM. To the contrary, the use of Gardiner Park identified in both the 2015 and 2016 POM for active recreation wholly embodies not only the purpose of the works but the future use of the Park after their completion. 3. Friends also submitted that the works breached the 2015 and 2016 POM because there was non-compliance with the Council's Conservation Management Plan for Arncliffe, Gardiner, and Bexley Parks, NSW for the City of Rockdale, Final Report (October 2013) ("the CMP"), in particular Policy 40 to Policy 44 (predominantly concerning heritage). 4. The CMP was expressly referred to in both the 2015 and 2016 POM. 5. But again, Friends has failed to engage with the material that was before the Council at the time approval for the works was granted. The CMP was considered in the REF. The Court was taken to nothing that indicated that compliance with the CMP was mandatory. While Friends may cavil with whether, in its opinion, the works are in conformity with Policy 40 to Policy 44 of the CMP, even if they are not, this does not give rise to a serious question to be tried. 6. Friends relied on the Thom recommendation that the works should not proceed (see above) as evidence of reviewable error by the Council. But similarly, merely because that recommendation was not followed does not give rise to relevant error and does not give rise to a serious question to be tried. In this regard, the REF appended a Heritage Impact Statement dated May 2020 by Sue Rosen Associates (Appendix F) ("the HIS") with respect to the works. The HIS came to a contrary view to that expressed by Thom. 7. To the extent that Friends asserted that the construction of the fence around the synthetic playing field would either breach the CMP or change the prescribed use of Gardiner Park because it was exclusionary in nature and would prevent the use of the Park for active recreation or community events, again there was no evidence (only conjecture and speculation) to support either claim. The various pedestrian entry points onto the synthetic field are not locked and it was not envisaged that the Tigers would have exclusive use of the synthetic playing field. The REF and EA referenced and discussed the continued use of Gardiner Park for community events and active recreation. 8. In short, there is no serious question to be tried with respect to any alleged non-compliance with either the 2015 or 2016 POM. There Are No Serious Questions to be Tried 1. There being no serious questions to be tried raised by the application for injunctive relief, this is of itself sufficient to dispose of the motion. However, the Court will, in case it is wrong, proceed to consider where the balance of convenience lies. The Balance of Convenience Strongly Favours the Council 1. Despite being repeatedly pressed by the Court, Friends could point to scant evidence demonstrating that the balance of convenience lay in its favour. 2. As stated above, albeit well meaning, little to no weight could be placed on most of the evidence contained in the Brownbill and Carver affidavits for this purpose. 3. In my opinion, the balance of convenience weighs heavily in favour of the Council. This is because: 1. as discussed above, the strength of Friends's case is weak having regard to the serious questions to be tried raised by it (Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157 at [53]); 2. contrary to the submissions of Friends and the evidence of McKenzie, there is no special feature of the environment which would be harmed or lost if the Court did not grant the interlocutory relief sought. To the extent that Friends contended that irreparable harm to trees and other vegetation would occur, the evidence relied upon by it did not bear this out. The evidence of McKenzie in this regard was largely speculative. For example, as stated above, there was no evidence to support his opinion that up sizable volumes of compacted fill would be placed over major areas of the TPZs. From the material before the Court, it appeared that only two or three trees (see the Thom recommendation where she identified two trees of significance) out of a possible 50 or 51 that were in proximity to, and would potentially be impacted by, the works that were of heritage significance. Other material relied upon by Friends was either entirely equivocal or established the contrary position, namely, that either no further protection beyond the TPZ was required or that further measures were to be implemented to protect the tree (see, for example, the Aboriculture Impact Assessment by Owen Tebbutt dated 21 August 2020 at Appendix H to the REF). While it is true that the entirety of Gardiner Park is heritage listed and, as Friends submitted, the trees form part of the Park, not only was this a fact about which the Council was aware and took into account (see the CMP, the REF and the EA), this does not of itself act as a prohibition against the carrying out of the works. The Council has considered the impact of the works on the surrounding vegetation (Appendix H) and biodiversity (Appendix G) in the REF and in the EA, and has provided safeguards to limit or prevent any adverse consequences of those works on the trees in granting the approval. That some trees may be damaged or destroyed is not, without more, sufficient to warrant the grant of injunctive relief sought. With the exception of one Brush Box tree and the two referred to by Thom, none have particular value and there was no evidence to contextualise the asserted damage to the trees to the whole of the vegetation contained in Gardiner Park. As England deposed, the proposed synthetic sports field will occupy an area of approximately 6,144m2, which is only around 14.2% of Gardiner Park's total area. The total area of the works will comprise approximately 16,000m2, or 37% of the Park's total area; 3. to the extent that Friends argued that the works would cause harm to the environment by, for example, the application of fill to the sporting fields altering the existing height and contours of Gardiner Park, as England deposed, if Friends is ultimately successful, the playing fields and their surrounds can be reinstated to their current form by the removal of all imported materials and the original landform can be restored; 4. if the works do not proceed, because the grass had already been poisoned and was dying, there was a very real potential of harm to human health and the amenity of the surrounding neighbourhood. This harm included dust and sediment impacts, stormwater impacts, and contamination impacts; 5. if the works are delayed, there is the possibility that the free fill available from the M6 motorway construction will no longer be available resulting in increased costs in the works; 6. delay in the completion of the works will impact the Tigers and impact the community insofar as it will increase the time that the sporting fields will be fenced off and unusable and will delay the community's enjoyment of the benefits of the upgrade; 7. the improved stormwater management occasioned by the works will also be deferred; and 8. finally, the usual undertaking as to damages was not offered by Friends. Its failure to offer the undertaking is not fatal to the application, rather, this is no more than a factor to be considered by the Court in determining whether or not to grant interim injunctive relief. The Application for Interim Injunctive Relief Must be Refused 1. There being no serious questions to be tried and the balance of convenience favouring the Council, the application for interim injunctive relief must be refused and the notice of motion dismissed. 2. In dismissing the motion, the Court notes the undertaking given by the Council not to demolish or remove the heritage items (as specified at [50]) referred to above (at [53]) pending the final determination of the proceedings. 3. The costs of the motion are reserved. 4. The exhibits are to be returned. 5. The matter is stood over for mention before the List Judge on 18 December 2020. ********** 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 December 2020