Land and Environment Court of New South Wales CITATION : Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216 APPLICANT Allan Carriage PARTIES : RESPONDENTS Stockland (Constructors) Pty Ltd and Ors FILE NUMBER(S) : 40863 of 2002 CORAM: Pain J KEY ISSUES: Interlocutory Relief :- discretionary consideration - serious question to be tried - irreparable damage - inconvenience to respondent - balance of convenience - public interest in protection of aboriginal relics Environmental Planning and Assessment Act 1979 National Parks and Wildlife Act 1974 s 90, s 176A, s 118A, s 118D LEGISLATION CITED: Rivers and Foreshore Improvements Act 1948 State Environmental Planning Policy no. 55 Threatened Species Conservation Act 1995 s 91 CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 DATES OF HEARING: 18/11/2002 DATE OF JUDGMENT: 11/20/2002 APPLICANT Mr A Oshlack (agent) SOLICITORS N/A FIRST RESPONDENT Mr T Hale SC with Mr S Brockwell (barrister) SOLICITORS Baker & McKenzie SECOND RESPONDENT LEGAL REPRESENTATIVES: Mr J Whyte (barrister) SOLICITORS National Parks and Wildlife Services (submitting appearance at hearing) THIRD RESPONDENT submitting appearance save as to costs FOURTH RESPONDENT Mr A Gemmell (barrister) SOLICITORS Peedoms (submitting appearance at hearing) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40863 of 2002 Pain J 20 November 2002 ALLAN CARRIAGE Applicant v STOCKLAND (CONSTRUCTORS) PTY LTD First Respondent DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE OF NEW SOUTH WALES Second Respondent THE MINISTER FOR THE DEPARTMENT OF LAND AND WATER CONSERVATION Third Respondent WOLLONGONG CITY COUNCIL Fourth Respondent Judgment on Interlocutory Relief Introduction 1 The Applicant has commenced Class 4 proceedings seeking declarations and orders in relation to various matters concerning the First Respondent's subdivision development at Sandon Point, Bulli. This judgment concerns an interlocutory application by Mr Carriage, who is represented by his agent Mr Oshlack, in relation to some of the matters raised in the amended Class 4 application. The orders sought by Mr Carriage are as follows: 1. An order restraining the first respondent from carrying out any activity which relies on authorisation granted by consent 1427 and in terms set out in paragraph 13 of the application class 4 until further order. 2. An interlocutory order restraining the first respondent, his employees, contractors, servants and agents from carrying out any work which involves the disturbance of any soil stockpiled on land described as Lot 2 DP 595478 the AIR land taken from the Sandon Point construction site until further notice. 3. An order allowing the applicant and chosen delegates to inspect the land referred to in paragraphs 1 and 2 above. 4. In reference to the paragraph above the court make a direction that an officer of the third respondent accompany the applicant upon the inspection. 5. Costs. 6. Any further order or direction the court deems appropriate. 2 The Applicant's claim relates to three areas of land known as Lot 235, the AIR land and residue Lot 238. Argument was heard in relation to the interlocutory relief sought on Monday 18 November 2002. 3 The Third Respondent has filed a notice of submitting appearance (except as to costs) and did not appear at the hearing. The Second and Fourth Respondents were represented at the hearing but stated they were making a submitting appearance only. No submissions were received from the Second or Fourth Respondents. Lot 235 4 The Applicant has taken action, amongst other matters, pursuant to s 176A of the National Parks and Wildlife Act 1974 (NPW Act) alleging that there have been breaches of the permit No. 1427 granted by the National Parks and Wildlife Service (NPWS) in relation to "Proposed subdivision and construction of related stormwater, drainage and services infrastructure works, Stages 2 to 6, Sandon Point". A key issue in the Applicant's argument is that the operation of that permit depends on the First Respondent obtaining all necessary consents for work conducted in the hatched area on the map attached to the permit, known as residual Lot 235 which adjoins stages 2 - 6 of the subdivision area. 5 The Applicant argues that the permit no 1427 issued by the Director-General of the National Parks and Wildlife Service is being breached by the First Respondent as there is work going on in the area known as Lot 235 which: (i) requires development consent under the Environmental Planning and Assessment Act 1979 (EP&A Act) (par 4 of the amended Class 4 application); (ii) is in breach of the Threatened Species Conservation Act 1995 (TSC Act) and the NPW Act because of clearing of endangered vegetation (par 9 and 10 of the amended Class 4 application); (iii) requires a Pt 3A permit under the Rivers and Foreshores Improvement Act 1948 (par 7 of the amended Class 4 application); (iv) A further issue also raised at the hearing was that there was contamination on this land to which SEPP 55 applied. As a result it also required development consent under SEPP 55, and this had not been obtained. (there is no ground in the amended Class 4 application) 6 Special condition 3 of permit No. 1427 states the permit is conditional upon all relevant development approvals having been obtained. There is a hatched area on the map attached to the permit which identifies "Area for which consent is required". The Applicant submitted this meant that all relevant consents are required to be obtained for this area before the permit is valid. 7 The First Respondent relied on an affidavit of Mr Paul Hedge, the First Respondent's project manager for the Sandon point development, dated 15 November 2002. The First Respondent submitted that it had obtained development consent from this Court in proceedings no. 10026 - 10030 of 2001. That consent consisted of five integrated development applications to create 89 commensurate or attached housing allotments, three super allotments for future medium density housing development and residue lots for future development and area zoned open space. The land was identified in the consents by reference to various lots in various deposited plans. As part of the Stage 2 conditions the Court gave approval for roadworks and other activities related to drainage works around a riparian corridor on Lot 235. A construction certificate which included plans for earthworks and filling of land on Lot 235 was annexed to the affidavit. The First Respondent submitted that it had complied with the development consent issued by the Court and this was a complete answer to all of the Applicant's claims in relation to Lot 235. I will refer to the Applicant's four grounds in turn. In relation to(i) - Breach of the EP&A Act 8 The Applicant relied on an affidavit of Ms Jill Walker sworn 8 November 2002 which referred to work being done on coke ovens on Lot 235, which was said by Mr Oshlack to be work which required development consent. As no further context was provided for this evidence by the Applicant, clearly necessary given the First Respondent's submissions, I did not find this material persuasive. In relation to (ii) - Breach of the TSC Act/NPW Act 9 The evidence relied on by the Applicant in relation to the clearing of vegetation was: (a) an affidavit of Mr Robert Miller dated 8 November 2002. Mr Miller is a horticultural/botanist with expertise on the flora of eastern Australia. He runs a consulting service known as Cumberland Flora and Fauna Interpretative Services. His evidence was that he had inspected the site (which is undefined in the affidavit but which I was informed by Mr Oshlack was Lot 235) in October 2000 at which time most of the soil was intact. He again inspected the Lot 235 area on 20 May 2002 when he observed the area had been slashed which impacted upon significant vegetation forming part of the "Endangered Ecological Community Sydney Coastal Estuarine Swamp Forest Complex" (SCESFC). (b) an affidavit of Mr Tony Stevenson sworn 8 November 2002 referring to an occasion on 4 July 2002 when he filmed an excavator destroying vegetation on Lot 235. (c) an affidavit of Ms Jill Walker sworn 8 November 2002 annexing photographs taken on 9 October 2001 concerning a site inspection by a NPWS threatened species officer which showed slashing of an endangered plant community (SCESFC) which she says she witnessed on 8 October 2001. Further photographs were attached to her affidavit taken on 15 May 2002 and further on 20 May 2002 which are said to show destruction of endangered plant species on Lot 235. 10 In relation to par 9 of the amended Class 4 application alleging that there has been a breach of s 91(1)(a) (b) and (d) of the TSC Act in that work has been carried out on Lot 235 which has resulted in destruction of part of the SCESFC, identified under Sch 1 of the TSC Act as an endangered ecological community. I note that s 91 of the TSC Act provides that the Director-General of NPWS may grant a licence authorising a person to take action which results in picking of or damage to a threatened species. That section does not provide for an offence so I am unclear as to what the Applicant is intending by his pleadings in his amended Class 4 application. 11 In relation to par 10 of the amended Class 4 application alleging that the First Respondent has breached s 118A and 118 D of the NPW Act in that work has been carried out on Lot 235 which has resulted in destruction of part of the SCESFC, identified under Sch 1 of the TSC Act as an endangered ecological community, there is a defence available to a prosecution of this matter if it was essential to be carried out in accordance with a development consent within the meaning of the EP& A Act. I note that I do not have a prosecution before me as these are Class 4 proceedings, and once again the Applicant's pleadings on this issue are unclear. 12 The First Respondent's submission on this issue is that the development consent obtained from this Court enables the work undertaken on Lot 235 in relation to the SCESFC. One of the plans tendered in evidence as part of the development consent granted by this Court included a "Plan of location of the SCESFC and Buffer Zone - Tramway and Woodlands Creek - modified from that contained in Sandon Point Flora and Fauna Assessment by Connell Wagner Pty Ltd and Sainty & Associates Pty Ltd reference no. 1008.27.GF and received by the Department of Land and Water Conservation on 22 June 2001 with consignment note WCBB890950". The First Respondent submitted that any work done which involved changes to the SCESFC was done in accordance with the development consent granted by the Court. 13 The affidavit material presented in support of this claim by the Applicant is not sufficiently specific as to its location to enable the Court to adequately assess the Applicant's claim in this matter. I also note that the affidavit material relied on refers to inspections that are several months or more old. The Applicant's claim as pleaded is unclear in any event. Given that the work has been going on for sometime and these interlocutory proceedings were first pressed in Court on November 13 2002 this delay is also relevant in deciding if interlocutory relief ought be granted. In relation to (iii) - Breach of the Rivers and Foreshores Improvement Act 1948 14 The Applicant did not present any evidence to the Court to enable this ground to be assessed. The affidavits referred to at ground (ii) may have been intended to support the Applicant's case on this aspect but the Court was unable to assess these in relation to this ground as the case was presented by Mr Oshlack. The First Respondent tendered in its evidence a Pt 3 permit issued by the Third Respondent in relation to work being conducted on Lot 235 around Tramway Creek and the Sandon Point Riparian Zones Vegetation Management Plan Pt 1. A report prepared for the First Respondent and referred to in the Pt 3 permit issued by the Third Respondent to the First Respondent was tendered by the Applicant (the Sainty report) but in the absence of clear evidence about non-compliance with the report I am unable to determine this matter. In relation to (iv) - Contamination/SEPP 55 15 The only evidence admitted in support of the Applicant's contention is an extract from the last page of a contaminated site audit summary report dated 9 March 1999 for BHP Sandon Point last page where the reference is made to "A portion of the site, located between Tramway Creek and the site to the north, was impacted by PAH contamination, at levels above the guidelines for the proposed site use." On this basis Mr Oshlack submitted that SEPP 55 applied to the Lot 35 area and further development consent was required. 16 Mr Oshlack also made submissions from the bar table as requested by Mr Carriage about health concerns amongst Aboriginal site officers who sift through soil with bare hands looking for relics. In the absence of any evidence on which to base these submissions apart from the very general report referred to in the previous paragraph I am simply unable to assess the Applicant's claim on this matter. 17 The First Respondent argued that contamination was dealt with in the consent issued by the Court for Stage 2 at conditions 33 and 34. Reference is made to arsenic contaminated soils and there are also a number of other measures in relation to contamination referred to. 18 I am unable on the evidence before me to assess the Applicant's claim for relief on this ground. AIR land 19 A separate claim is made by the Applicant in relation to land known as the AIR land, a map of which is annexed to a Notice of Determination of Development Consent for DA 99/588 issued by the Fourth Respondent. There were two arguments mounted by the Applicant in relation to this land; (1) The present stockpiling of soil on this site from the Stage 2 - 6 development is not covered by the consent for development application no D99/588 issued by the Council and therefore work is being conducted illegally as it does not have a development consent as required by the EP&A Act. (2) The soil being presently stockpiled on this site contains Aboriginal relics from the Sandon Point development stage 3 and a permit is required under s 90 of the NPW Act before the movement and possible destruction of relics is lawful at this site. There is no such permit at present. 20 The First Respondent was granted development consent to DA 99/588 by Wollongong City Council on 24 July 2000. DA 99/588 relates to the demolition of disused brick refectory buildings. 21 The evidence relied on by the Applicant in support of its claim was an affidavit sworn 8 November 2002 of Mr Tony Pagett, a site monitor for stage 3 of the Sandon Point development since it started. In his affidavit he states his opinion that the fill being deposited on the AIR land is from stage 3 of the Sandon Point subdivision and contains aboriginal relics. He also states that there are large areas of fill. The Applicant further submitted that permit No. 1427 extends only to the area in the attached map and this does not include the AIR land which is separate. 22 The First Respondent argued that the existing permit no 1427 which allows the dealings with aboriginal relics from the Sandon Point site covered the relics being deposited on the AIR land because it allowed for their removal and destruction and this could clearly mean removal to another area such as the AIR land. Further, the development consent obtained from Wollongong City Council for DA 99/588 included a plan on which the stockpile area where the fill is being deposited is clearly located. Noted on that plan is the following notation: "Backfill all excavations as required in the specification to the level of the existing surface in the area". This was said to be sufficient to cover the fill being brought from the Sandon Point site. Residual Lot 238 23 There is no specific evidence before me in relation to the land the Applicant referred to as residue Lot 238 and accordingly I will be making no orders in relation to it. 24 I admitted into evidence minutes of a meeting held with officers of Wollongong City Council and the First Respondent's development manager Mr Paul Hedge dated 29 August 2002. The Applicant sought to rely on statements concerning the filling of land in Stage 7 (Lot 235) in which a council officer advised that it appeared that work approved by the construction certificate did not have development consent. It also said debate about this issue occurred and the follow up action was that Mr Hedge was to provide clear substantiation that this work has development approval. 25 The same minutes also stated that in relation to the AIR land, the Council officer advised that it seemed the filling did not have approval and that the Council was waiting on legal advice before finalising its position. 26 The Council, as the Fourth Respondent, made no submissions to the Court about these matters. Matters to be taken into account on interlocutory applications 27 In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, Mason ACJ states at 153 - 154: The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 28 In relation to item (2) referred to in the above quotation, as to whether the Applicant will suffer irreparable injury for which damages will not be adequate compensation unless the injunction is granted, I note that the Applicant filed an affidavit sworn 13 November 2002 of Associate Professor Peter Hiscock who is Head of Archaeology at the School of Archaeology and Anthropology, Australian National University. Attached to the affidavit is his report titled "Appraisal of Archaeological Studies at Sandon Point New South Wales". In his affidavit Dr Hiscock states that the available evidence obtained by archaeologists reveals that within the development area at Sandon Point there is an enormous archaeological site containing several million artefact fragments that, known disturbances notwithstanding, those artefacts are likely to contain significant scientific information that can be obtained from few if any other sites and further, that the archaeological investigations have failed to provide an extensive or detailed characterisation of the site that would stand as a final statement of scientific significance. He further concludes that he believes the proposed development activities will irreparably damage the archaeological material at Sandon Point and that inadequate archaeological salvage actions have been taken to recover an adequate level of cultural information about past Aboriginal activities. His view is that without further investigations the proposed and current development of the archaeological site at Sandon Point will result in the loss of considerable and significant heritage information. 29 I note that Dr Hiscock's report is essentially a review of the archaeological investigations undertaken at Sandon Point and focuses on the area known as stages 2 - 6. The area before me in Lot 235, the AIR land and the residue of Lot 238 is outside this area. Mr Oshlack put to me that the land the subject of these interlocutory proceedings is contiguous to this area and all of it is one large site of considerable significance for aboriginal heritage. The material in Dr Hiscock's report is not directed to the issues raised in these interlocutory proceedings. It appears more relevant to an analysis of the processes giving rise to the issue of a s 90 permit by the National Parks and Wildlife Service in relation to the site. It is therefore of limited assistance in determining the precise matters before me in this application. I note however that the statements set out above relating to Dr Hiscock's conclusions suggest that the Sandon Point area generally has considerable significance from an Aboriginal heritage perspective, and I take it into account to that extent only. 30 The Applicant has offered an undertaking to pay damages. The First Respondent submitted that this was worthless as the applicant is impecunious, a statement not challenged by the Applicant. 31 Mr Hedge, the First Respondent's development manager for Sandon Point, stated in his affidavit that the First Respondent is currently marketing the lots in subdivisions for stages 1 - 6 and has sold 14 lots. The program of works is scheduled to be completed by November 2002. If an interlocutory injunction is granted it is likely to delay the issue of a linen plan, with delays in sales and attendant costs such as land tax, Council rates and water rates. Estimated site costs if there is delay are contractor's delay costs at $15,000 - $20,000 per day, contractor's site reestablishment costs when work recommences at $20,000 and security cost at $12,000 a week. Findings and Orders 32 In relation to the first order sought in the Applicant's notice of motion concerning permit No. 1427 and activity on Lot 235 and residue Lot 238, I cannot be satisfied on the evidence before me that there is a serious question to be tried. I therefore decline to make that order. 33 In relation to the second order sought concerning the AIR land, it seems to me that there is a serious question to be tried in relation to the issues raised by the Applicant. As I have heard no submissions from the Second or Fourth Respondents, despite their representation at the hearing, I am not aware of their views on these questions which clearly concern them as the relevant responsible government agencies. The irreparable damage caused to the Applicant in terms of the destruction of Aboriginal heritage on the AIR land in the absence of a s 90 permit from the National Parks and Wildlife Service is also a serious matter for the Applicant and not one for which damages are appropriate compensation. While there is inconvenience and possible loss of income to the First Respondent which I must consider in weighing up the balance of convenience if I make an interlocutory order in relation to the AIR land, in light of all these matters I am minded to make the interlocutory order sought in par 2 of the Applicant's Notice of Motion. 34 I note that the Applicant is prepared to give an undertaking as to damages. 35 In relation to the fourth order sought, that the Court order that a representative of the Third Respondent attend at the site, I am not prepared to make that order. The Third Respondent has filed a notice of submitting appearance, did not appear at the hearing and sent a letter to the Second Respondent stating that it opposed the orders sought and asked the Second Respondent to draw the letter to the Court's attention. 36 Before finalising the orders in relation to the second and third orders sought, further discussion with the parties is necessary. Orders Accordingly, the Court makes the following orders (second and third orders sought still to be finalised): 1. The orders sought in par 1 and 4 of the Applicant's notice of motion are not granted. 2. The question of costs is reserved. 3. The exhibits may be returned. 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.