COFFS HARBOUR ENVIRONMENT CENTRE INCORPORATED vy COFFS HARBOUR CITY COUNCIL and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 9 December 1991 [1991] NSWCA 58 Clarke JA This is an application for an injunction by the Coffs Harbour Environment Centre Incorporated in which it seeks to restrain the Coffs Harbour City Council in the State of New South Wales from carrying out any further works associated with the construction of the ocean outfall at Look-at-me-now Headland on the pieces of land which are specified in the Notice of Motion. The situation is that earlier this year his Honour Mr Justice Bannon heard and determined an application by the claimant for declarations to the effect that the Council resolution pursuant to which works were carried out were void and of no effect. In the course of his judgment Mr Justice Bannon concluded that the proposed development on portion 237 of the Parish of Moonee was prohibited under zoning 6A of the Local Environment Plan which had been published in respect of the city of Coffs Harbour. For reasons which appeared in his Honour's judgment he nevertheless declined to grant the relief which the claimant sought. An appeal from his Honour's judgment was heard as a matter of urgency last Friday. During the hearing of that appeal the claimant submitted that once it was concluded that the development on portion 237 was prohibited then it was entitled, almost as a matter of course, to the order sought. In this respect it was pointed out that there was no appeal by the opponents raising contrary considerations. At the end of the appeal the court sought from the opponents an indication whether they were prepared to desist from further works pending the handing down of the judgment prior to the end of the law term. Neither counsel was able to indicate to the court the precise nature of their client's attitude and neither was in a position to give any undertaking to the court. Subsequently no indication was given to the claimant that there was any intention on the part of the opponents to cease work pending the delivery of judgment. Accordingly, the claimant has now filed a motion for injunction seeking that all work stop until either delivery of judgment or further order of the court. The application is supported by much evidence concerning the interference to the lifestyle of persons who live in the neighbourhood and the damage caused to particular flora by the work that has already been completed and the likelihood that further damage will be caused by further works. The opponents have put evidence before the court to the effect that a 3-metre wide trench, about 300 millimetres deep has been excavated along the path of the proposed pipeline and that it is proposed to excavate to a deeper extent within that trench in order to lay the pipes. Therefore, according to the opponents, no further damage will be occasioned to the flora in the area. Subject to one matter it seems to me that the injunction falls to be considered at a broader level. The claimant has the benefit of a finding that the works on portion 237 are prohibited works. The reasons advanced by his Honour for declining to give the claimant relief despite that finding have not been supported by the opponents. Indeed they sought to support the ultimate outcome by 2 UNREPORTED JUDGMENTS reference to a savings clause in the Local Environmental Plan. In those circumstances it could be said that the claimant has at least a strong prima facie case that the order made below is not correct. In these circumstances and taking the view that any further excavation must inevitably involve further damage, I consider that, subject to one matter, the injunction should be granted. In coming to that conclusion I have taken account of the submission that if an injunction is granted then there is a prospect that damage will be caused by erosion of the existing trench during the next two weeks after which it is expected judgment will be given. I have also taken account of the fact that it is proposed to effect temporary remedial steps to the trench rather than allow damage to occur and that that remedial work will cost money. Notwithstanding these submissions, the balance of convenience favours the maintenance of status quo until the court delivers its judgment. The proviso to which I earlier refused is that I am of the opinion that it is appropriate that the claimant proffer an undertaking as to damages. This was originally resisted by the claimant's counsel who relied on the decision of Ross v the State Rail Authority of New South Wales, 70 LGR 91. There is some force in that submission but I have reached the conclusion that the better view in this case is that an undertaking should be proffered. Once I gave my preliminary view to that effect counsel for the claimant sought and obtained instructions to give to the court an undertaking as to damages. Once he had done this counsel for the first opponent raised another objection. There was no evidence, he submitted, that the claimant had the funds to meet any undertaking. That is correct, but until the submission had been made there had been no issue about that aspect of the case. Indeed counsel had earlier sought an undertaking as a condition of any relief granted against his client. The position is that there is no evidence either that the claimant has or does not have substantial assets to meet any undertaking. I do not think it is open to me to draw an inference that it has no assets from the name of the claimant alone. That would simply be guesswork. In these circumstances I do not see why I should not accept that the undertaking is given bonafide and that it is a proper undertaking for the purposes of granting the injunction. The orders I would propose therefore are that, upon the claimant giving the usual undertaking as to damages, O.1 in the Notice of Motion of 9 December 1991 be made. I make orders set out in the short minutes of order which have been initialled by me and placed with the papers. Orders accordingly.