Land and Environment Court of New South Wales CITATION : Campbelltown City Council v Simon's Earthworks Pty Ltd [2000] NSWLEC 225 APPLICANT: Campbelltown City Council PARTIES : RESPONDENT: Simon's Earthworks Pty Ltd FILE NUMBER(S) : 40096 of 2000 CORAM: Bignold J KEY ISSUES: Injunctions and Declarations :- Injunctive relief - interlocutory and permanent relief claimed in proceedings commenced after unlawful activity has ceased. No justification for any relief. Each party should pay its own costs - the Applicant because it failed to obtain any relief in the proceedings and the Respondent because it by its prior conduct brought the proceedings upon itself. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 CASES CITED: DATES OF HEARING: 7 July 2000 EX TEMPORE 07/07/2000 JUDGMENT DATE : APPLICANT: Mr D Wilson, Barrister SOLICITORS Marsdens LEGAL REPRESENTATIVES: RESPONDENT: Mr D Newhouse, Barrister SOLICITORS L P Alidenes & Co JUDGMENT: IN THE LAND AND Matter No . 40096 of 2000 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 7 July 2000 CAMPBELLTOWN CITY COUNCIL Applicant v SIMON'S EARTHWORKS PTY LTD Respondent JUDGMENT Bignold J: 1. This is an application for interlocutory relief in Class four proceedings filed in Court on 30 June 2000. The permanent relief claimed in those proceedings included both declaratory and prohibitory injunctive and mandatory injunctive relief against the Respondent in respect of its use of premises known as number 3 Bosci Road, Ingleburn, being Lot 304 in Deposited Plan 807937, the relevant use being the receiving and storing on the premises of waste material contrary to the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Protection of the Environment Operations Act 1997 (PEO Act). 2. The proceedings as filed claim by way of interlocutory relief, orders restraining the Respondent from depositing or causing to be deposited on the land waste material of any kind until the final determination of the proceedings. The claim for interlocutory relief was fixed for today in the duty list. When the matter was called on today, the Court was informed that events had occurred which largely had overtaken the proceedings inasmuch as Counsel to the Respondent informed the Court on instructions that the aforesaid use of the land had ceased on 29 June 2000 and all of the material erstwhile stored on the land had been removed by that date, that is, the day before the commencement of the proceedings. 3. Counsel for the Respondent also informed the Court that if the Court was satisfied that some injunction was warranted (and his submission was that there was no such warrant), then the Respondent was prepared to give undertakings to the Court without admissions. This is confirmed in a letter written by the Respondent's Solicitor to the Council's Solicitor yesterday and transmitted by facsimile transmission. The contents of the letter should be noted, they include the following: We're informed that all materials were removed by the Respondent on 29 June 2000 which was prior to the commencement of the proceedings. It is arguable that these proceedings were commenced presumptuously. In good faith, and to avoid any further and unnecessary costs in preparation on Friday (that is a reference to today's proceedings) we are instructed to provide an undertaking to the Court on the following basis. 4. The letter then sets out the terms of the undertaking on a without admission basis and continues— obviously such terms are not to be disclosed to the general public. 5. The letter then continues— The undertaking is given on the basis that the Respondent pay the Applicant's reasonable costs avoiding the costs of hearing and that the proceedings be dismissed. 6. The letter sought an urgent response from the Council's Solicitor by stating: We request that you obtain instructions from your client urgently. Please confirm your position with this office in writing by 12 noon today. If this undertaking is not agreed to we will endeavour to file evidence to oppose the Notice of Motion and to seek costs. 7. As it happened, the Council's Solicitor did respond to the letter by facsimile transmission but regrettably directed the facsimile transmission to the wrong address. This is made clear by the terms of the Council's letter itself, which cites the facsimile address number of the Respondent's Solicitor's office. But that number, in fact, is the telephone number and not the facsimile number of the firm, as is made clear by the formal contents of the Respondent's Solicitor's letterhead. The matter, though not in any doubt, is confirmed by the affidavit, sworn today, of the Solicitor having carriage of the matter for the Respondent. 8. Despite this unfortunate lapse in effective communication, when the matter was called on today, Counsel for the Council informed the Court that the Council would be prepared to accept the undertaking offered by the Respondent in lieu of any injunctive relief, not only in lieu of the interlocutory injunctive relief claimed, but in lieu of the permanent relief claimed in the proceedings. It also submitted that it should have its costs of the entire proceedings, including the costs of today. The evidence that has been filed in the proceedings has been read and I only refer to the relevant aspects of it. 9. Critically, so far as the present proceedings are concerned, the commencing point I think must be the Council's Solicitor's letter to the Respondent calling upon the Respondent to cease the unauthorised activity on the land and threatening legal proceedings in the event of default. That is the letter dated 14 June 2000 addressed to the Respondent and also the separate letter addressed to the owner of the subject land, being a person different from the Respondent. That letter refers to the allegation that the subject land was being used for the purpose of dumping, storing and sorting of waste materials contrary to the EP&A Act and contrary to the PEO Act. 10. After pointing out the criminal sanctions available under each Act in respect of such activity, the letter continued:- Unless you cease using or allowing or permitting the use of the said land for the purpose of dumping, storing or sorting of waste material forthwith and arrange for all waste material currently stored on the land to be removed by 5pm 28 June 2000 we are instructed to commence proceedings in the Land and Environment Court seeking orders requiring you to do so. An order will also be sought requiring you to pay the Council's legal costs and expenses incurred in connection with the proceedings. 11. The letter to the Respondent and to the owner of the land received prompt responses. The response from the Respondent was given the very next day. It said— We are not aware of the Acts ( that is the Planning Act and the Environmental Protection Act that I have referred to ) you have quoted. However, we are not dumping or permitting to dump or store waste on lot 304. We are only removing the waste from lot 304 and 303. We are acting on the orders from the last court case at which we were given three months to remove all the waste. We would ask you to hold off any legal action as we are trying desperately to remove the building waste. 12. I interpose at this point the fact that the Respondent's letter in referring to lot 303 is referring to the land immediately adjoining the subject land. In respect of that land, the Council had brought in this Court separate proceedings against the Respondent. Having obtained some relief on 3 April this year in those proceedings, which are numbered 40216/99, substitute orders were obtained by the Council against the Respondents on 28April 2000 requiring the Respondents to cease using lot 303, ie the adjoining land, for the purpose of receiving, storing or processing waste materials and requiring the Respondents to remove from the land all garbage, rubbish, other waste materials stored thereon within a period of three months from the date of the orders. So it is that, in relation to the adjoining land which also contained large volumes of waste and other materials stored thereon, the Respondents, by Court order, were required to clear the land of such materials by 28 July 2000 , that is, three months from the date of the Court orders. 13. Returning to the Respondent's letter, it is apparent that the response was to the effect that the Respondent was engaged in the removal of waste from both lots at the very time that the Council's letter was received and in the case of the adjoining land, the Respondent was acting in fulfilment of the obligations cast upon them by the Court's orders. There is nothing in the Council evidence to refute the assertion contained in the Respondent's letter (which is otherwise borne out by the facts, as will be presently noted) that the Respondent was desperately at that time engaged in the task of removing the building waste from both lots. 14. The other response that the Council received was from the owner of the land. That response, (dated 21 June 2000) indicated to the Council that the owner had given notice to the Respondent to vacate the subject land, also pointing out that a short term lease held by the Respondent of the land was, in any event, due to expire by the effusion of time on 7 July 2000. The information that was furnished to the Council's Solicitor from the owner of the land included a letter dated 9 May 2000 to the Respondent from the owner giving notice that the premises were to be cleaned and vacated. 15. The evidence filed by the Council indicates that inspections of the subject land were being undertaken on almost a daily basis by Council's servants. From early in May 2000 observations were being made of not only what the state of affairs was on the subject land, but some of the observations also included the adjoining land. The Council's own evidence indicates that inspection on 29 June 2000 satisfied two Council servants that all of the waste material on the subject land had been removed except for two piles "of fine dirt-like material located on the southern boundary." 16. The evidence of Mr Emerzidis, a director of the Respondent company, contained in his Affidavit of 6 July (a copy of which had been transmitted by facsimile to the Council's Solicitors at 5.00 pm yesterday) confirms the observations made by the Council's servants and completes the picture by deposing that an hour or so later, ie by 5 o'clock, the land had been entirely cleared of all stored waste materials. The Affidavit of Mr Emerzidis also indicates that from early June 2000, ie a fortnight before the Council's Solicitor's letter was received, he commenced removing materials from the subject land on a daily basis until, on 29 June 2000 when the task had been entirely completed. 17. There is no dispute (and the evidence is unequivocally clear) that from the end of June, ie at the time (perhaps coincidentally) that the proceedings were commenced, the hitherto apparently unlawful use of the subject land had entirely ceased, all stored materials had been entirely removed and the Respondent had no entitlements to use or occupy the subject land. For whatever reason, not explained in the evidence, in this state of affairs the Council commenced its action in this Court on 30 June 2000. 18. In my opinion, on the facts as found, there is (as at today) simply no basis or justification for granting any relief in respect of what now has become a historical use of the subject land by the Respondent where that use has terminated and the land has been left entirely free of any manifestation of the storage activity hitherto employed in relation to the land. Not only, as at today, is there no evidence of continuing breach of the Act in relation to the subject land, but there is not the slightest evidence of any apprehended or threatened breach of the Act in relation to the use of the land. It follows that the claim to interlocutory relief and all the claims to final relief are simply not substantiated on the facts. Council's submission that the Court would accept the undertaking proffered in the letter written by the Respondent's Solicitor yesterday to the Council's Solicitor is not accepted because it is apparent from the terms of the letter that I have recited that the purpose and motivation of the Respondent suggesting the proffer of an undertaking without admission was, to go back to the terms of the letter, "in good faith and to avoid any further and unnecessary costs in the preparation on Friday". So understood, the offer of the undertaking cannot, in my respectful opinion, justify any inference adverse to the Respondent that an undertaking was necessary or is otherwise required. As I said earlier in my reasons for judgment, the events have largely overtaken the Council's case. There is, in short, no relief, interlocutory or permanent, that is required in the present case because there is no current breach or threatened breach of either the EP&A Act or the PEO Act. 19. Counsel for the Respondent very candidly and helpfully drew my attention to some jurisprudence in the Federal Court dealing with breaches of the Trade Practices Act and the circumstances there encountered where the Court from time to time has granted an injunction to mark its disapproval of some conduct committed in breach of the Trade Practices Act. However, Counsel for the Respondent submitted that in the light of the evidence of this case and especially the Respondent's immediate response to the Council's threat of legal proceedings, and the fulfilment within a fortnight of all that was there expressed (as confirmed by Mr Emerzidis' affidavit filed yesterday) that the present case provides no warrant for the Court to mark its disapproval of the Respondent's conduct. 20. Significantly, Counsel for the Council did not invite the Court to exercise this exceptional form of remedy and in my opinion it is simply inappropriate. If there has been a historical breach of the Planning Act and the PEO Act 1997 it is past history. Any sanction in relation to it might well give rise to proceedings for offences which were rightly referred to in the Council's letter of 14 June 2000 threatening proceedings but they provide, for the reasons that I have given, absolutely no warrant for basing injunctive relief - interim or permanent. 21. That being the view of the case, the question ultimately for decision being the only outstanding issue is the question of costs. In this respect, the Council's submission that it should have all of its costs in the proceedings is, in my respectful opinion, wholly unsustainable, if for no other reason than the fact of the Respondent's Solicitor's letter received by the Council's Solicitor yesterday (that I have earlier referred to). As I say, it is unfortunate that the Council's response to that letter was misdirected in terms of using the wrong facsimile address details, but that does not eliminate or neutralise the fact of the Respondent's Solicitor's letter. Its existence means that there could not possibly be any justification for costs in favour of the Council of today's proceedings. 22. The Council's claim to costs in relation to matters occurring before today stands on a different footing. Here it is submitted that the Court would be satisfied that the Council's proceedings were properly commenced. I have already expressed my view that they were not properly continued in the sense of the hearing today, but in my view I do not think that a reasonable assessment of the facts as I have recited them admits of a conclusion that the proceedings were in any event, properly commenced. This is because of the undisputed fact that a day before commencement of proceedings whatever breaches of the Act may have existed in relation to the Respondent's prior use of the land, had entirely ceased. 23. This cessation, I would emphasise, was not accidental, fortuitous or opportunistic. Rather, it was the very fulfilment of what the Respondent had informed the Council's Solicitor two weeks earlier in its immediate response to the threat of legal proceedings. That fact, that is the result of the cessation of use and the complete removal of all materials from the subject land the day before the proceedings were filed (understood in the light of the Respondent's immediate response to the Council's threat of legal proceedings) in my view, inevitably leads to the conclusion that the proceedings were not commenced reasonably appropriately in this case. That is to say nothing as to whether they could have been commenced earlier in point of time, because it appears, from the Council's evidence, that the use of the land for the alleged unlawful purpose at least was being made within the Council's knowledge at least as early as April of this year. However, that observation is not to the point, the point being they were commenced when they were, namely on 30 June 2000 and in my respectful judgment they were not commenced appropriately, having regard to the state of affairs then existing. 24. That is not to say that I overlook the fact that the preparation of paperwork required for filing of proceedings in Court obviously does take some time. I have no doubt that the filing of the originating process, together with the ample affidavit evidence that has been prepared in the Council's case, took some time. There is no suggestion that it happened only after the Council's inspection of the premises on 29 June 2000 or their inspection on 28 June 2000. However, the point is that the revelations of those inspections by the Council's officers should have put the Council on notice that the legal proceedings about to be filed should be reviewed because of the dramatically changed circumstances. Changed circumstances that, I would emphasise, merely reflected the Respondent's advice to the Council's Solicitor in response to the threat of proceedings of what the Respondent was doing to clear the land and thereby avoid the need for any proceedings. In those circumstances I do not think that the Council is entitled to any costs in the proceedings. 25. Finally, this brings me to the Respondent's claim for costs in the proceedings, including the costs of today's hearing. Ultimately, I have concluded that there should be no costs in the proceedings for the reason that the Respondent's conduct, historical though it may be, was the undoubted and justifiable cause for the Council commencing the proceedings. As I have pointed out, the decision to bring proceedings did not happen in an instant of time. Rather, they were foreshadowed in the Council's Solicitor's letter of 14 June 2000 and they were commenced a little more than a fortnight later. However, the alleged unlawful activity had been undertaken on the subject land for at least (according to the Council evidence) a period of two or three months prior thereto. And one cannot lose sight of the fact that the Respondent was also the subject of Court orders made in relation to its similar use being made on the adjoining land, which proceedings had been filed in the Court in 1999 and had resulted in orders being made by the Court initially on 3 April and thereafter substitute orders being made on 28 April 2000 that I have earlier referred to. In the circumstances, I think the Respondent must ultimately, on the question of costs, be regarded as having brought the proceedings upon itself and for that reason I think in all of the circumstances there should be no order as to costs in its favour despite the result in the litigation. 26. For all of the foregoing reasons, the parties having indicated to me that I should now deal with the case for final relief as well as interlocutory relief, the orders of the Court are that the class four proceedings are dismissed and that each party pay its own costs. 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