Friends of Gardiner Park Inc v Bayside Council (No 2) [2021] NSWLEC 14

Land and Environment Court New South Wales

Medium Neutral Citation: Friends of Gardiner Park Inc v Bayside Council (No 2) [2021] NSWLEC 14 Hearing dates: 9 February 2021 Date of orders: 9 February 2021 Decision date: 09 February 2021 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraph 17 Catchwords: ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – variation of undertaking – heritage item – leave granted Legislation Cited: State Environmental Planning Policy (Infrastructure) 2007 Category: Principal judgment Parties: Friends of Gardiner Park Inc (Applicant) Bayside Council (First Respondent) Polytan Asia Pacific Pty Ltd trading as Polytan (Second Respondent) Representation: Counsel: Mr P Holt, solicitor (Applicant) Mr J Cole, solicitor (First Respondent) Ms G Ellis, solicitor (Second Respondent)

Solicitors: Holding Redlich Lawyers (Applicant) HWL Ebsworth Lawyers (First Respondent) Bartier Perry Lawyers (Second Respondent) File Number(s): 2020/334247 Publication restriction: No

EX TEMPORE Judgment 1. HER HONOUR: In this matter the Applicant, Friends of Gardiner Park Inc, have commenced proceedings seeking to restrain the Council from carrying out certain works at land known as Gardiner Park. That summons is presently not the subject of a hearing date. The Applicant sought an interlocutory injunction precluding the Council from taking any action in accordance with the works at Gardiner Park. That application for interlocutory relief was heard before Pepper J of this Court on 7, 9 and 10 December 2020. 2. Her Honour found in relation to each of the matters that were raised in the application for interim relief that an interlocutory injunction should not be made either because the Applicant: had failed to disclose through the evidence that there was a serious question to be tried; in the alternative, she determined that the balance of convenience favoured the Council and that the interlocutory injunction should be refused. 3. One of the grounds which was raised as a reason for the granting of the interlocutory injunction was whether or not the provisions of the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) applied to various heritage items, including a concrete stormwater pipe bisecting the park. At [51] of her Honour's judgment she notes that, notwithstanding it is arguable that the heritage items do not engage the provisions of the ISEPP or whether the works in respect of the heritage items are permissible without consent under the ISEPP, the Council conceded that there was a serious matter to be tried in relation to the ISEPP. 4. The Council gave an undertaking at that time to the Court that it would not demolish or remove the heritage items, pending final determination of the proceedings. The Council, by Notice of Motion, has sought to vary the terms of the order by releasing it from the original undertaking and providing for an undertaking that now provides that the Council undertakes to the Court that: …pending further order, final determination, disposal or discontinuance of the Proceedings: (a) it will not demolish or remove the heritage items as defined at [50] of the Judgment, except to set out at (b) below, and (b) the works expressly set out at paragraphs 6 & 7 in the affidavit of John Cole sworn 2 February 2021, to the extent that any of those works might constitute demolition or removal of any part of the concrete stormwater pipe referred to at [50(b)] of the Judgment. 1. In the affidavit of Mr Cole, the relevant paragraphs depose that an inspection of the stormwater pipe the subject of the reference in her Honour's judgment, has disclosed that it has a defect such that the stormwater from the pipe has been leaking over a period of time and has eroded the soil below the pipe and caused the collapse or subsidence of the land above it. The Council has been advised that in order to deal with the subsidence and to preserve the existing pipes, so as to avoid the need for demolition or removal of the pipes, work needs to be undertaken. 2. The nature and scope of those works are those referred to in paragraphs 6 and 7 of Mr Cole's affidavit that states: 6. To deal with the subsidence and preserve the existing pipe in situ and so as to avoid the need for its demolition or removal the following works need to be undertaken: (a) The ends of the existing pipe need to be sealed at the upstream and downstream pits to prevent further water entering it; and (b) The existing pipe needs to have grout pumped into it to preserve it in place and ensure no further collapse. 7. To effectively carry out the grouting works there is a need to drill two holes in the top of the pipe each of 100mm in diameter for aeration and a 250mm diameter hole in the top of the pipe so as to be able to pump the grout into the pipe. 1. Mr Holt, the representative for the Applicant, opposes the variation to the undertaking given to the Court as he submits from the bar table that the provision of grout in the pipe will have the effect of demolition insofar as it will no longer render the pipe capable of performing the function that it presently serves, being the carriage of stormwater. Further, Mr Holt, again from the bar table, contended that the grout that the Council was proposing to be used potentially would not be strong enough to retain or maintain the weight of fill placed above it from the resurfacing of the park. 2. Further, in support of the application the Applicant filed at 12.57pm a document that purported to be evidence on the Notice of Motion. It was not in the form of an affidavit, but in the form of what was described as an "Expert Statements of Facts and Opinions - Heritage". In relation to the work, apart from opining on the potential heritage significance of the pipes themselves, which was accepted by Pepper J in any event, paragraph 22 of that report was relied upon where it is stated: Without a proper heritage assessment of the significance of the subterranean pipes and the context of their importance to a large design system of stormwater management, demolishing the pipes or making them non-functional presents a high risk of substantial impact to the heritage significance of Gardiner Park. 1. In respect of this matter when it was before her Honour Pepper J, she observed on a number of occasions that in relation to the evidence relied upon by the Applicant, they adduced evidence in relation to matters for which expertise was required and which the deponents did not have expertise. Included in those areas of expertise were heritage. She also observed, at [31], that a heritage referral response from a heritage advisor employed by the Council had been prepared which did not support the carrying out of the works. 2. There is no evidence before me that would suggest that the Council has not taken into account the heritage significance of the pipe. This is not a merit hearing, this is judicial review proceedings seeking to challenge the decision-making process of the Council and to determine, insofar as relevant to the matter before me today, whether the provisions of the ISEPP operate in a way that would preclude the Council from undertaking the works that it has determined are appropriate for Gardiner Park. 3. The issue in relation to the ISEPP is the demolition or removal of the heritage items, which include the pipe. The proposed change to the undertaking expressly retains the obligation not to demolish or remove the pipe. To the extent that the Council is proposing to retain the pipe's structure by the introduction of a grout or concrete, that cannot, of itself, be seen to be the demolition of the pipe. It may alter the use of the pipe, but it does not comprise its demolition. 4. In any event, after taking further instructions, Mr Cole amended the terms of the undertaking such that the reference to the grout in paragraph 2(b) would be qualified by the words; "Provided that the grout referred to in those paragraphs is capable of being removed without demolishing the pipe". 5. Having regard to the totality of the material that was before Pepper J and the evidence that is before me on the Notice of Motion, the undertaking proposed by the Council does not diminish the undertaking that was given to her Honour upon which she relied for the purposes of determining that there was not a serious question to be tried in relation to the ISEPP. 6. Accordingly, I do not consider that the variation of the undertaking to the Court in the terms now proposed is a material change in circumstances such that there would be prejudice that would flow to the Applicant from not having the terms of this undertaking before her Honour when she heard the matter such that it would warrant me not accepting that the undertaking should be revised in the terms. 7. Further, the evidence adduced by the Council, and not addressed by the Applicant, is that there is a real risk that the integrity of the pipes will be compromised if they are not stabilised in the interim period pending determination of the matter. In order that the Applicant can argue its case that the pipes remain and if successful such argument has some consequence, it is important, in my view, that the pipe's integrity be retained. The only evidence that I have before me is that such can be accommodated only in the event of an imposition of a grout material to the internal portions of that pipe until such time as it can be supported. The asserted heritage significance of that pipe in the event that the grout can be removed to the extent that it conveys water now, it will be able to convey water in the future. 8. For those reasons, I consider it is appropriate in the circumstances of this case and on the evidence before me after hearing the submissions of both parties, to grant the orders sought in the Notice of Motion, with the additional words that Mr Cole has proffered through his instructions. 9. Accordingly, the Court orders that: 1. Leave is granted to the First Respondent to withdraw its undertaking previously given to the Court pending final determination of the substantive proceedings to not demolish or remove the heritage items as define at [50] of the interlocutory decision of 14 December 2020 in these Proceedings (the Judgment); 2. Note and accept the fresh undertaking of the First Respondent to the Court that, pending further order, final determination, disposal or discontinuance of the Proceedings: 1. it will not demolish or remove the heritage items as defined at [50] of the Judgment except to set out at (b) below, and 2. the works expressly set out at paragraphs 6 & 7 in the affidavit of John Cole sworn 2 February 2021, to the extent that any of those works might constitute demolition or removal of any part of the concrete stormwater pipe referred to at [50(b)] of the Judgment provided that the grout referred to in those paragraphs is capable of being removed without the demolition of the pipe; and 1. Costs are reserved.