Land and Environment Court of New South Wales CITATION : Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 [2010] NSWLEC 210 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Hill Top Residents Action Group Inc PARTIES : RESPONDENT Minister Administering the Sporting Venues Authorities Act 2008 FILE NUMBER(S) : 40839 of 2010 CORAM: Pepper J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- ex parte application for interim injunctive relief - principles to be applied - a serious question to be tried - balance of convenience did not favour granting of injunction - application refused International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) CLR 319 CASES CITED: National Commercial Bank Jamaica Limited v Olint Corporation Ltd [2009] 1 WLR 1405 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 DATES OF HEARING: 15 October 2010 EX TEMPORE JUDGMENT DATE : 15 October 2010 APPLICANT Mr J Lazarus SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT No appearance SOLICITORS Crown Solicitor's Office JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 15 October 2010 40839 of 2010 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: Before the Court is an ex parte application bought by Hill Top Residents Action Group Inc ("Hill Top") by way of notice of motion filed instanter seeking urgent interim injunctive relief. The application is urgent because the clearing works the subject of the application for injunctive relief have commenced and have been ongoing since at least 11.30 am today. 2 In support of the application Hill Top relies on an affidavit sworn by Mr Peter Jackson on 15 October 2010. Mr Jackson is a partner at Pikes Lawyers, the solicitors for Hill Top. Issues the Subject of the Application for Injunctive Relief 3 The bases of the application are twofold and relate to alleged breaches of an approval given on 1 March 2010 for the construction of the Southern Highlands Regional Shooting Complex at Hill Top, New South Wales ("the approval"). 4 Schedule 2 of the approval states that: the development shall be in accordance with the NSW Sport and Recreation Southern Highlands Regional Shooting Complex Environmental Assessment dated February 2008 prepared by GHD and all Appendices, except where varied by the Preferred Project Report NSW Sport and Recreation Southern Highlands Regional Shooting Complex Submissions Report prepared by GHD dated July 2008, including the revised Statement of Commitments and all Appendices. 5 When further regard is had to those two documents, two breaches of the approval are said by Hill Top to emerge. They are, first, that during the construction and preconstruction phase of the development, which includes the present clearing, there has been a failure to wholly implement the Construction Environmental Management Plan because no fencing has been erected around the areas to be cleared for construction. Hill Top submits that there is an obligation to fence the proposed development areas with appropriate temporary fencing to ensure that any construction does not trespass into surrounding native vegetation and habitats, otherwise known as "no go zones". This fencing has not been done. 6 Second, there has been a breach of the obligation to undertake vegetation clearing outside breeding periods for the Yellow-bellied Glider. This obligation, as specified in the Statement of Commitments attached at Schedule 3 to the approval, is as follows (emphasis added): Undertake vegetation clearance and tree-felling outside breeding periods for the Yellow-bellied Glider, which breeds November to May . …During construction An ex parte Application 7 Before I examine whether or not there are serious questions to be tried, I wish to make an observation in relation to the ex parte nature of this application. 8 Counsel for Hill Top conceded that no notification had been made to the respondent after it had been made aware that clearing had commenced. The only reason offered to the Court for this state of affairs was by the tender of a letter dated 17 September 2010 from the Crown Solicitor's Office where, upon reading the contents of the letter, it is apparent that a request made by Hill Top for seven days written notification to be given to it prior to any construction works commencing was refused by the respondent. 9 I do not, however, understand how this refusal explains Hill Top's failure to notify the respondent of this application. In my view, the failure to make any attempt to notify the respondent is unsatisfactory. It is a factor that weighs heavily in the determination of this application. 10 In this regard I rely on the observations made by Heydon J in International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319 (at [150]) (where his Honour quoted from National Commercial Bank Jamaica Limited v Olint Corporation Ltd [2009] 1 WLR 1405): 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 Corpn 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." (emphasis in original) 11 International Finance was quoted and endorsed by Biscoe J in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 (at [6]), where his Honour set out the principles that are to be taken into account in relation to the granting of an ex parte application for interlocutory injunction. I adopt and apply the principles summarised therein, together with the caution urged in International Finance. 12 I also adopt the more general principles Biscoe J summarised in relation to the granting of interlocutory injunctions in Shoalhaven (at [4] and [5]). Serious Questions to be Tried 13 Turning, first, to whether there is a serious question to be tried, in my view, there is no serious question to be tried in relation to the issue concerning the breeding periods for the Yellow-bellied Glider. On a proper construction of the Statement of Commitments, as quoted above, clearing is not to take place during the months of November to May because that is the breeding period for the Glider. It is currently October, and therefore, clearing is permitted. 14 Counsel for Hill Top urged upon the Court a construction which would have transformed the comma contained in that proscription into a full stop. The submission was that the words "which breeds November to May" are merely descriptive and that the actual proscription is not to undertake vegetation clearance during the breeding periods, whenever they may be, but including November to May. 15 I do not accept this interpretation. It strains the construction of the plain and unambiguous words of the document. 16 But even if I did accept this construction, the evidence does not convincingly support the granting of the injunction. In this regard, the Court was taken to a statement of Dr Stephen John Ambrose, which was attached to the affidavit of Mr Peter Jackson. 17 The statement, although purportedly prepared pursuant to the New South Wales Land and Environment Court's Expert Code of Conduct, is unsigned. But in any event, Dr Ambrose states at paragraph 6, that in habitat areas of southern New South Wales, peak breeding is in August and September. That is to say, not October. I did not find it persuasive. 18 Dr Ambrose also went on to state that the young remains in the pouch for up to 100 days, after which time it is left in the nest while the mother forages. After leaving the pouch, the young are suckled for up to sixty days. Therefore, juvenile Yellow-bellied gliders are dependent on their natal dens for up to 160 days or nearly twenty three weeks after their birth. 19 Counsel for Hill Top therefore suggested that the term "breeding" in the approval incorporated the time after gestation, including while the young were left in the nest and being suckled. In my view, this construction does not accord with the plain and ordinary meaning of the term "breeding", which typically is used to describe 'mating' and not antenatal care. I would require evidence that "breeding" incorporated more than mere mating in order for that argument to be attractive. I therefore reject this basis for the grant of the interlocutory injunction, namely, there being no serious question to be tried because the clearing is in conformity with the approval. 20 Turning to the issue of the fencing, however, there was evidence contained in Mr Jackson's affidavit that the construction by way of clearing that had commenced was unfenced and contrary to the approval. This testimony was given to Mr Jackson from various witnesses, including Ms Clare Strang and Mr Ben Crockford. Accepting this evidence at face value as I must, there would appear to be a prima facie breach of the approval. This does give rise to a serious question to be tried. However, this is not the end of the matter. Balance of Convenience 21 The Court must also have regard to the balance of convenience. Ultimately, I do not find that the balance of convenience is weighed in favour of granting the injunctive relief sought. The principal reason for coming to this conclusion is that although counsel for Hill Top stated that there was "a risk" that some damage could occur to threatened flora and fauna occasioned by the lack of fencing, no evidence at all was tendered to support this bald assertion. In my opinion this is insufficient. 22 There is no evidence whatsoever that any threatened flora and fauna are being harmed by the clearing as it is presently being undertaken. There is no evidence whatsoever that the clearing is trespassing into the "no go zones". 23 While the Court is cognisant of the vice that the "no go zones" seeks to protect against, nevertheless, there was no material before the Court to allow it to make an assessment that there was, or could be, damage consequent upon the absence of fencing. In my view, more must be demonstrated, however slight. Otherwise, all that the Court is left with is that there has been, on a prima facie basis, a breach of the approval. This is not enough in the present circumstances. 24 As no further submissions were proferred on where the balance of convenience lay, I am therefore of the opinion that the injunction ought not, at this stage at least, be granted. 25 I have come to this conclusion notwithstanding that the usual undertaking as to damages was given by Ms Strang, through Mr Jackson. Mr Jackson was called to give evidence that he had had a recent conversation with Ms Strang, a member of Hill Top, to the effect that an undertaking as to damages would, in all likelihood, be required to be given. Mr Jackson stated that he explained the ramifications of giving such an undertaking and that nevertheless it had been willingly proferred by Ms Strang. Mr Jackson also told the Court that Ms Strang had substantial assets, including property assets, which were, in his view, capable of satisfying any undertaking given. I accept this evidence. 26 I have also had regard to the fact that by the time that the application was heard before the Court, construction had virtually finished for the day and that construction could not, under the terms of the approval, proceed on Sunday (although I accept that construction could proceed for half a day on Saturday). Conclusion 27 As I have emphasised above, although I have found there to be a serious question to be tried, absent any evidence whatsoever of harm, or potential harm, to the environment caused by the absence of fencing and given the lack of notification to the respondent of today's application, in my view, it is not appropriate that the Court grant the injunction sought. Orders 28 I therefore decline to grant the relief sought and dismiss the notice of motion in this respect. ********** 26/10/2010 - Respondent name incorrect in case citation - Paragraph(s) cover sheet 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.