Blacktown City Council v Aria [2023] NSWLEC 11

Land and Environment Court New South Wales

Medium Neutral Citation: Blacktown City Council v Aria [2023] NSWLEC 11 Hearing dates: 09 February 2023 Date of orders: 09 February 2023 Decision date: 09 February 2023 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraphs 32 and 33 Catchwords: INJUNCTION – ex parte application – serious question to be tried – balance of convenience – fill material contaminated with asbestos – prohibited development – interlocutory orders made Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Blacktown City Council (Applicant) Mohammad Samir Aria (Respondent) Representation: Counsel: R White (Applicant) No appearance (Respondent)

Solicitors: R White (Applicant) No appearance (Respondent) File Number(s): 2022/355904 Publication restriction: No

EX TEMPORE Judgment 1. HER HONOUR: In this matter the Applicant is the local government authority for Blacktown City Council. It has commenced proceedings in the substantive proceedings seeking civil enforcement in respect of land identified as Lot 7 and Lot 17 Section W DP 712 known as 34 Creek Street, Riverstone and Lot 17 Creek Street, Riverstone. 2. The Respondent, Mr Mohammad Samir Aria, is the owner of the land. It is alleged that the land has been the subject of earthworks being the cut and fill of the land which is prohibited development pursuant to the provisions of the Blacktown Local Environmental Plan 2015 (Blacktown LEP 2015). In addition, it is asserted in the substantive proceedings that the Respondent is undertaking development on the land relating to the storage of motor vehicles which use is again said to be development which is prohibited in the zone. 3. That summons was filed on or around 25 November 2022 and is listed for its first return and directions tomorrow 10 February 2023. In the summons the Applicant sought interim relief. By notice given to the Court yesterday the Applicant has sought to bring that matter forward seeking urgent interim relief on the basis that it has now become aware that there is a real potential that the fill that has been imported upon the land comprises in part asbestos which poses a risk to the environment including human health or potential risk to human health. 4. At 10 o'clock this morning the matter was called including being called three times in the precinct of the Court. There was no appearance by Mr Aria. I proceeded to hear this matter ex parte. 5. I am satisfied on the evidence before me the Respondent was made aware of the application being sought to be ventilated in the interlocutory application today. 6. The Respondent was personally served with the summons on 6 December 2022 which summons included the request for interlocutory orders. I am further satisfied that the Respondent was personally served at 10.25am on 8 February with a letter from the solicitors for the Applicant dated 7 February which indicated that the Council would approach the Court on Thursday 9 February to seek urgent interlocutory relief and also provided the Respondent by way of service with the short minutes of order that it was proposing to comprise the interlocutory relief together with the affidavits which were read in support of the application today. 7. In addition to the personal service of those documents upon the Respondent at 10.25am on 8 February, I am also satisfied that upon the order being made by the Senior Deputy Registrar last evening an email notification to the email address commonly used by the Respondent in his communications both with the solicitors for the Council and the Council itself advising him that the application for urgent interlocutory relief was listed before the Land and Environment Court at 10 o'clock today. 8. In the circumstances, I am satisfied that the Respondent has been made aware of the bringing of these proceedings on an urgent basis and has failed to appear. I am prepared to proceed on an ex parte basis. 9. The principal reason for the bringing of the interlocutory application is that an investigation was undertaken on behalf of the Respondent following an inspection on 30 January 2023. A series of tests were undertaken on what was understood to be the fill from the subject land and by report dated 2 February 2023 the Council was advised that present within the fill were substances which I will refer to compendiously as "asbestos" but which was identified as chrysotile asbestos and crocidolite asbestos within the fill. As a consequence of that information the Council has become concerned in relation to the potential for environmental harm and the risk of environmental harm comprised by the presence of the asbestos on the land. 10. In the application before me there are two questions to be answered. The first is whether or not there is a serious question to be tried. In considering whether there is a serious question to be tried it is necessary for the Court to be satisfied that there is a legal or equitable right which are to be determined at the trial, namely the substantive proceedings, and in respect of which final relief is sought. 11. The second question is whether the balance of convenience indicates that the making of the injunction is appropriate in the circumstances. In considering the balance of convenience the Court must consider whether the inconvenience or injury to the Applicant that it would likely suffer if the injunction was refused, is outweighed or outweighs the injury to the Defendant if the injunction were granted. 12. In this case, I am satisfied that there is a serious question to be tried. The evidence read in these proceedings comprised two affidavits of Mr Doolan sworn 9 November 2022 and 7 February 2023, the affidavit of Ms Lang sworn 7 February 2023 and the affidavit of Ms Chenhall dated 6 February 2022. On the basis of that evidence, I am satisfied that the land is zoned RU4 pursuant to the Blacktown LEP 2015. In that zone development which is not expressly nominated as permissible without consent or permissible with consent is an innominate prohibited use. 13. The evidence discloses that the Respondent has undertaken the cutting of the land to a depth of in the order of 500 mm at the boundary and in addition to that cut has filled the land such that the land now has as its level a level 2 metres over and above the pre-existing level prior to cut. On top of that 2 metre high level of fill are also mounds of fill not yet spread over the site (the earthworks). 14. I am satisfied that it is reasonably arguable that the earthworks comprised development in that it is the undertaking of "a work" and that such development is prohibited in the zone. I am satisfied, however, in regard to the evidence that the fill comprises fill both taken from the land and moved around the land together with fill imported from external parts of the land. 15. The Applicant, as it is required to do, has brought evidence indicating that it was Mr Aria's position that he was doing no more than what he was entitled to do either by a verbal indication from the Council that he was able to make his driveway weatherproof or alternatively he was undertaking works sufficient to meet an order or direction that the Council had given to restore the land when it first became aware that the cutting of the land had been undertaken. 16. In light of the amount of fill, the amount of cut and the terms of the development control order to which Mr Aria referred I am satisfied that there a real question as to whether or not the development is prohibited and it appears, at least, on the basis of the evidence that is before me today that the assertions made by Mr Aria that he was undertaking work either to weatherproof his driveway or to comply with the terms of the development control order are insufficient to account for the totality of the fill and the cut that has been undertaken on the site. 17. Accordingly, I am satisfied that there is a serious question to be tried as to whether the Applicant is undertaking development which is prohibited in the zone. 18. Having regard to the balance of convenience there are two matters which arise for primary consideration. The first is the risk of irreversible environmental harm if the interim orders sought are not made. I am satisfied on the evidence that is available to me that there is a strong likelihood that the fill on the Respondent's land contains asbestos. The Applicant has been constrained in the means by which it is able to inspect the site by Mr Aria preventing persons attending upon the site for the purposes of actual inspection of the fill on his land and objecting to Council officers and those representing the Council from attending the site. 19. The Council, in light of Mr Aria's objections, has undertaken testing of fill which has, from my assessment of the evidence, spilled from the Respondent's land onto the adjoining land and there is a strong inference available on the evidence that the testing of that fill is likely to represent the fill type on the Respondent's land. Having regard to that inference there is a strong inference that the fill or at least some of the fill which has been imported into the site contains asbestos. 20. Having regard to the report dealing with asbestos there is an immediate recommendation from an expert of the field that it is appropriate that access be prevented to the fill that contains the asbestos, as treating the fill in any way including merely by access over it, has the capacity to render the asbestos friable thereby increasing the risk of environmental harm including harm to humans. 21. The report also indicates that the asbestos should not be dealt with by persons other than in accordance with strict safety standards. Therefore, there is a risk that if the asbestos remains on the site and is able to be either accessed or moved otherwise than in accordance with the strict requirements that there is an immediate risk of harm to the environment and to the persons on the site and persons off the site. 22. Due to the volume and the placement of the fill and the fact that the land is within what is designated as a high flood risk area I consider this risk to be an immediate and real risk. The steps required to retain the asbestos undisturbed pending further investigation and on the final determination of the substantive proceedings are not unduly onerous and on the evidence before me is not likely to cause the Respondent any undue prejudice. 23. From the evidence, whilst Mr Aria is the owner of the land, I do not understand that he is presently occupying the land. The evidence indicates that he was not intending to occupy the land until he had completed the works that he proposed to do. In the circumstances, I consider that the risk warrants the balance of convenience in favour of the making of the injunction and the prejudice to the Respondent does not outweigh that. 24. I am satisfied that the Applicant made the Respondent aware both at the hearing of this application and the relevant evidence to be read including the evidence in the interlocutory application the likely presence of asbestos. Notwithstanding this evidence, the Respondent failed to appear or to communicate any submissions either to the Court, the Council or the Council's solicitor. The Council prior to commencing the urgent interlocutory application sought undertakings and again no response was received. 25. Absent the interim relief I am satisfied that there is a real risk that the Respondent will continue to import material that does not comprise virgin excavated natural material and, thereby, there is a risk that the amount of asbestos on the site may increase or that by bringing other material onto the site the risk may also increase. 26. I am satisfied that the urgency of the matter has not unduly prejudiced the Respondent in circumstances where he has on numerous occasions indicated that he has retained legal advisers in relation to the proceedings before the Court and his dealings with the Council. In light of the Council becoming aware of the presence of the asbestos on or about 2 February 2023 I do not consider that the Council has unreasonably delayed the bringing of this application and that the necessary urgency speaks in favour of the balance of convenience. 27. I also note that the matter is before the Court for the first return and directions tomorrow 10 February 2023 and that the Respondent is aware of this list date. This gives the Respondent ample opportunity, if he wishes, to ventilate any concerns he has in relation to the matter generally or in relation to the orders that I have made today should he wish to do so. 28. To enable that to occur I will retain the matter as listed before me such that if there is any argument to be had other than the making of the usual directions it can be dealt with by me sitting as duty judge rather than interrupting the busy list judge list. 29. Accordingly, for certainty of listing, I will list the matter before me for directions at midday on 10 February 2023 and I direct that the Applicant notify the Respondent of that listing time. The Applicant provided short minutes of order which were in broad and more general terms. I indicated to the Council that it was my firm belief that the orders should be in expressly particularised form so that the Respondent was aware of what he could and could not do pending further order of the Court. 30. It was my intent that the orders reflect the immediate action which had been recommended by the asbestos testing expert so that the risk of harm could be ameliorated in the interim period. I took a short adjournment to enable the Council to consider the form of those orders and they have provided me with short minutes of order. 31. I am now satisfied having regard to the terms of the order that the order is sufficient to constrain the risk in the intervening period without seeking to enjoin the Respondent from undertaking work which remains in dispute or potentially in dispute in the substantive proceedings. The risk from the asbestos, however, does require some considerable reduction of access over the fill and the short minutes of order will attend to that. 32. For the reasons I have given, I grant the interim relief sought by the Applicant in the summons and I make orders until further order of the Court in accordance with the short minutes of order that I will sign and place with the Court papers. 33. I note in order 4 that the Council is going to advise the term of the order by email. The Council will, however, in due course serve the order of the Court as is required by the Uniform Civil Procedure Rules 2005 (NSW).