Land and Environment Court of New South Wales CITATION : Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 APPLICANT: Shoalhaven City Council PARTIES : FIRST RESPONDENT: Bridgewater Investments Pty Ltd SECOND RESPONDENT: Josa Pty Ltd FILE NUMBER(S) : 40437 of 2010 CORAM: Biscoe J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- ex parte interlocutory injunction to restrain works allegedly in breach of conditions of development consent and terms of construction certificate - legal principles. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005, r 25.8 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 European Bank Ltd v Evans [2010] HCA 6, 264 ALR 1 Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 CASES CITED: Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 International FinanceTrust Company Ltd v New South Wales Crime Commission [2009] HCA 49 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 Thomas A Edison Pty Ltd v Bullock (1912) 15 CLR 679 DATES OF HEARING: 11 June 2010 EX TEMPORE JUDGMENT DATE : 11 June 2010 APPLICANT: Mr J Maston SOLICITORS: Sparke Helmore LEGAL REPRESENTATIVES: RESPONDENT: N/A SOLICITORS: N/A JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 11 June 2010 40437 of 2010 SHOALHAVEN CITY COUNCIL v BRIDGEWATER INVESTMENTS PTY LTD AND ANOR EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an urgent motion for an ex parte injunction in proceedings commenced earlier this morning. 2 The applicant, Shoalhaven City Council, moves to restrain the respondents, Bridgewater Investments Pty Ltd and Josa Pty Ltd, from carrying out any further works, including clearing or construction or subdivision works, on the land comprised in Lot 13 DP 787669 at Jervis Bay Road, Huskisson, other than works implementing erosion and sediment control works in the schedule to the summons to prevent pollution of waters resulting from clearing and earthworks on the property. The complaint is that the works have been carried out in breach of conditions of a development consent and in breach of the terms of a construction certificate and are causing harm to the environment. 3 The evidence indicates that the first respondent is the registered proprietor of the land and the second respondent is the first respondent's contractor which carried out the work. Legal Principles re Interlocutory Injunctions 4 An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 at 153-4; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 at [13] (Campbell J); Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 at [6] (Preston CJ). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent or a third party would be likely to suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Tegra at [18]–[19]. Thus, the balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536 (McLelland J). Although normally the Court does not undertake an interlocutory trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case (Beecham at 622), in some cases the strength of the applicant's case, above the threshold of a serious question, may be relevant to the risk of doing an injustice: Castlemaine at 154; Kolback at 536. 5 Usually, an applicant for an interlocutory injunction is required to give the Court an undertaking as to damages. This undertaking underwrites the risk, and responds to the court's anxiety, that the grant of the interlocutory injunction might later prove to be the wrong course of action and cause the respondent or a third party damage for which there is no redress except by an order for costs: European Bank Ltd v Evans [2010] HCA 6, 264 ALR 1 at [15]; Inetstore at [28]; Tegra at [28]-[31]. The "usual undertaking as to damages" is defined in r 25.8 of the Uniform Civil Procedure Rules 2005 as follows: " 25.8 Meaning of "usual undertaking as to damages" The 'usual undertaking as to damages', if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking." 6 On an ex parte application for an interlocutory injunction, the applicant must make full and frank disclosure of all material facts adverse to the applicant's case which are known to the applicant or would have been known if the applicant had made proper inquiries: Thomas A Edison Pty Ltd v Bullock (1912) 15 CLR 679 at 681-2; Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 676-7 (CA). The form of an ex parte interlocutory injunction and whether it should be granted at all were considered in International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49 by Heydon J: "146. The courts are extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them… … 148 Interlocutory injunctions in equity . The sensitivity of the law towards the interests of parties who may be affected by ex parte substantive orders is illustrated by various aspects of equitable practice in relation to interlocutory injunctions. 149 There is a general rule of practice that no injunction will be granted ex parte unless it takes one of two forms. One form of injunction is that granted for a very short period within which notice is given to the defendant of its existence, so that the defendant may oppose any extension of it beyond that very short period. The second form of injunction is that granted until further order, but with liberty for the defendant to make a speedy application for it to be set aside. The former type of order is usually regarded as the more desirable. But our equitable practice knows nothing of an ex parte injunction granted until trial without liberty to apply for speedy dissolution. 150 Another instructive aspect of equitable practice is afforded in relation to the question of whether an ex parte injunction should be granted at all. It was summarised thus by Lord Hoffmann, delivering the opinion of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd : 'Although the matter is in the end one for the discretion of the judge, audi [alteram] partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. … Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none.'" Serious question to be tried 7 I am satisfied that there is a serious question to be tried. According to the council's evidence, the respondents have carried out the works in breach of conditions of a development consent granted by the council to the first respondent in respect of a subdivision, and in breach of the terms of the subdivision construction certificate. 8 Conditions 3(a) and (c) of the development consent were in the following terms: "3. To ensure satisfactory roads and drainage works are constructed, the following engineering conditions apply. (a) construction of five metre bitumen sealed pavement together with 0.5 metre shoulder and necessary culverts and table drain within the proposed road reserve, to the requirements of the Engineering Works Manager. ... (c) For the effective control of erosion and sedimentation from the subdivision, the areas of disturbance are to be minimised wherever possible. The retention of maximum ground cover and natural vegetation is critical. Therefore the applicant is advised that no clearing or under-scrubbing is to be carried out without direct consultation and direction from Council Officers and the Department of Conservation and Land Management. Any clearing works carried out without the approval of Council will cause all work within the development to be stopped until control measures have been employed." 9 On 7 October 1999 a subdivision construction certificate was issued under the Environmental Planning and Assessment Act 1979 which approved works on the road running through the proposed subdivision only from chainage 30 to chainage 180, a distance of approximately 150 metres. This constituted only a relatively small length of the road the subject of the development consent. 10 The evidence supports the council's contention that there has been a breach of the development conditions and the terms of the construction certificate in that the clearing of the road seems to have been carried out for virtually its full length and to a far wider extent than that which was permitted. Balance of convenience 11 As for the balance of convenience, the evidence indicates that the allegedly unlawful works continued after the council issued a cease-work notice and that the works have caused and are continuing to cause environmental damage. 12 On 4 March 2010, the council served a cease-work order both personally on the plant operator on the site as well as by registered mail on each of the respondents. Clean-up notices were issued on 5 March 2010 and 21 May 2010. On 10 May 2010, a council inspection indicated that further works had been carried out. On 7 June 2010, a further council inspection did not reveal any additional clearing, but indicated that one of the existing silt fences was engorged with silt and a number of the fences required re-staking; two dams on the property were full and scouring had occurred around the outlet pipe; erosion and sediment controls on the property were inadequate and not being maintained; and soil and sediment had been washed from exposed areas into the surrounding vegetation. The evidence indicates that runoff of sediment and soil from land which has been cleared has the potential to impact on a State Environmental Planning Policy 14 Wetland and endangered ecological communities in a number of ways. There is evidence that immediate action needs to be taken to minimise or prevent further erosion and sediment runoff from the property into this wetland from the clearing and earthworks carried out on the property. 13 In the circumstances indicated by the council's evidence, particularly the need to take immediate action to protect the environment, I am persuaded that the balance of convenience favours the grant of an ex parte interlocutory injunction for a very short period until the next sitting day of the Court when the respondents will have the opportunity to be heard. Orders 14 Upon the applicant by its counsel giving the usual undertaking as to damages, the Court makes the following orders: 1. Until 5pm on Tuesday 15 June 2010, the first and second respondents be restrained from carrying out any further works including clearing, construction or subdivision works on the land comprised in Lot 13, DP 787669 at Jervis Bay Road, Huskisson, other than the works referred to in claim [6] of the summons filed in these proceedings. 2. The time for service of the applicant's notice of motion be abridged to 4 pm on 11 June 2010. 3. The proceedings be stood over to Tuesday 15 June 2010 at 9:30 am. 4. Liberty to apply. 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.