F. Hannan Pty Ltd v Wyong Shire Council & Ors [2006] NSWSC 634

New South Wales Supreme Court

CITATION : F. Hannan Pty Ltd v Wyong Shire Council & Ors [2006] NSWSC 634

HEARING DATE(S) : 21 June 2006

JUDGMENT DATE : 21 June 2006

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 06/21/2006

DECISION : Plaintiff's motion dismissed with costs.

CATCHWORDS : INTERLOCUTORY INJUNCTION – NUISANCE – BALANCE OF CONVENIENCE – Plaintiff seeks interlocutory injunctions restraining further works on land causing discharge of water onto plaintiff's land – balance of convenience is contrary to grant of injunctions.

LEGISLATION CITED : Local Government Act 1993 (NSW) – s.733

F. Hannan Pty Ltd – Plaintiff Wyong Shire Council – First Defendant Eaton & Sons Pty Ltd – Second Defendant PARTIES : Larbane Pty Ltd – Third Defendant A.V. Jennings Ltd – Fourth Defendant Bolte Industries Pty Ltd – Fifth Defendant A. Van Stappen Pty Ltd – Sixth Defendant

FILE NUMBER(S) : SC 3276/06

A.J. Sullivan QC, R.P.L. Lancaster, J.S. Emmett – Plaintiff C.J. Leggat SC, R.M. O'Gorman Hughes – First Defendant COUNSEL : D. Eaton (Sol) Second and Sixth Defendants M.W. Sneddon – Third Defendant J.B. Maston – Fourth Defendant N. Bolte (in person) – Fifth Defendant

SOLICITORS : Gilbert & Tobin – Plaintiff Solicitors for Defendants: unknown

1 This application has been brought on as a matter of urgency in the Duty Judge List today. The hearing has occupied the whole of the day. It is now 4.30 in the afternoon and the parties seek a decision. In view of the time limited to give judgment, my reasons necessarily will be brief and will touch upon only the main points which have been argued by Counsel. 2 The Plaintiff is the owner of 208 hectares of vacant land at Warnervale on the Central Coast of New South Wales. The property is within the Local Government area of the First Defendant, the Wyong Shire Council. The Second, Third and Fourth Defendants, to whom I will refer as Eaton, Larbane and Jennings, are the owners of separate and substantial parcels of land at Warnervale which are in the course of development pursuant to development consents given by the Council. The land of Eaton, Larbane and Jennings is not contiguous with the Plaintiff's land. 3 The Sixth Defendant, to which I will refer as Van Stappen, is the owner of a substantial parcel of land at Warnervale which also is in the course of development pursuant to a Development Consent given by the Council. Van Stappen's land is contiguous with the Plaintiff's land. 4 The Fifth Defendant, to which I will refer as Bolte, is a contractor engaged to carry out development work on the Eaton land and the Van Stappen land, and certain culvert road works affecting the Jennings land. 5 The Plaintiff alleges that recently constructed development works on the lands of Eaton, Larbane, Jennings and Van Stappen, being work carried out principally by Bolte, are causing, and will increasingly cause large, volumes of storm water accumulating on those lands to be discharged onto the Plaintiff's land, damaging the Plaintiff in its use and enjoyment of its land. 6 The Plaintiff seeks interlocutory injunctions restraining the Council from: "… taking any step to facilitate any works (including without limitation clearance of land, excavation, digging, channelling works, construction or laying of pipes or other infrastructure) connected with the construction of any culvert, channel, drain or other watercourse that would directly or indirectly cause or permit surface water or stormwater from land not belonging to the Plaintiff to be discharged or to flow onto the Plaintiff's land … ." 7 The Plaintiff seeks interlocutory injunctions restraining each of the Eaton, Larbane, Jennings, Bolte and Van Stappen from: "undertaking or continuing to undertake, any works … that would directly or indirectly cause or permit surface water or stormwater … discharged or to flow onto the Plaintiff's land …." 8 This being an interlocutory application for injunctions, I must decide it under two broad headings: firstly, whether there is a serious question to be tried as to the existence of a cause of action against each of the Defendants; secondly, where the balance of convenience lies. 9 I will not spend a great deal of time in considering whether there is a serious question to be tried as, in my view, the Plaintiff's application fails for convincing reasons under the heading of balance of convenience. However, I will deal briefly with the evidence adduced in support of the Plaintiff's case. 10 A report prepared by an engineer, Mr Van Drie, establishes, at the very least, a prima facie case that works on the lands of Eaton, Larbane, Jennings and Van Stappen, which have been approved by the Council, are likely to cause storm water accumulating on those lands to discharge onto the Plaintiff's land. 11 Larbane may be in a special position because the evidence suggests that the water from other lands is taken through Larbane's land over an easement owned by the Council and it may be the case that there is little, if any, water separately discharged from Larbane's land onto the Plaintiff's land. However, I do not think that Larbane has demonstrated convincingly that there can be no serious question to be tried as to whether the water on its land is not, by one means or another, eventually finding its way into discharge on to the Plaintiff's land. 12 The Council seems to acknowledge that affectation of the Plaintiff's land from storm water taken from other lands, including the Defendants' lands, is a necessary part of its management of drainage and storm water problems arising from the development of the Defendants' lands which it has approved. It is this very affectation which underlies the Council's stated intention to alleviate the Plaintiff's loss and damage by the expedient of acquiring the Plaintiff's land, either by a process of negotiation or by a process of compulsory acquisition. 13 In accordance with that stated intention, it is a condition of the Council's consents to the development of the Defendants' lands that the developers must make financial contributions to the Council to cover the cost of acquiring lands affected by the developments, including the Plaintiff's land. 14 In short, having regard to the evidence of Mr Van Drie, I am satisfied that there is a serious question to be tried that discharge of a substantial additional volume of water on to the Plaintiff's land has been occurring, and will be occurring in the future, by reason of the works now complained of, and that that discharge would be a nuisance actionable per se, subject to defences which may be available to the Council under s.733 of the Local Government Act 1993 (NSW). 15 I come now to the question as to where the balance of convenience lies. As I have indicated, I think that it is under this consideration that the application of the Plaintiff for the interlocutory injunctions must fail, for a number of reasons. 16 The first concerns the utility of the injunctions sought. The evidence of Mr Bolte and, indeed, the evidence of Mr Van Drie which shows photographs of the works undertaken, reveals that the works complained of on the Defendants' lands have largely been completed. Mr Bolte's evidence was that the works with which his company was concerned are substantially completed and only minor aspects remain to be done. 17 The evidence of Mr Van Drie shows that the works already completed are very substantial. Mr Van Drie's evidence is that those works have already caused a substantial discharge of water onto the Plaintiff's land. 18 The injunctions sought are to restrain the Defendants, in effect, from carrying out any further work on the construction of the drainage facilities. It is to be noted that no injunctions of a mandatory type are sought, the effect of which would be to require the Defendants to undo the works already done in order to prevent further discharge of water onto the Plaintiff's land. 19 It seems to me that there is very little, if any, utility at all demonstrated in the injunctions in the terms sought. The damage, if it is actionable, has already been done and nothing has been suggested by the Plaintiff as to any means of alleviating the discharge of water occasioned by the works which is already occurring. 20 The second consideration under balance of convenience is the question of comparative hardship to the parties, including the interests of third parties. There is the most vestigial evidence as to the use to which the Plaintiff has been putting its land. All that is said is that the land is used "for grazing purposes" . However, there is no evidence at all as to the nature of the Plaintiff's business, the extent to which the land has been used in the past for grazing operations, and the extent to which it would now be used but for the nuisance which is said to be created by the additional discharge of water from the Defendants' activity. 21 I do not know whether the Plaintiff has a substantial herd of cattle, sheep or some other livestock which were grazing on the subject land prior to the carrying out of the works and which can no longer be grazed there. I do not know anything at all about the financial impact on the Plaintiff's operations which the alleged nuisance is said to have. The Council has recently invited the Plaintiff to commence the negotiations for the Council's acquisition of the Plaintiff's land but the Plaintiff has not responded. 22 On the other hand, I must take into account that there is an element of public interest involved in the activities which have taken place on the Defendants' land and which have received the development consents of Council. The developments on the Defendants' lands, although carried out by private developers, are largely for the construction of housing for the public in the context of what, so the evidence suggests, is an expanding demand for housing on the Central Coast. There is an evident legislative policy in protecting the activities of councils in approving developments and insuring that developmental works are properly carried out. That policy is evidenced in s. 733 of the Local Government Act . 23 The Plaintiff says that the Defendants have adduced no evidence as to the hardship which injunctions would cause to them. However, I think that the hardship in restraining the completion of development works which have as their ultimate object the provision of public housing is self-evident. On the other hand, as I have noted, there is no evidence upon which I can make any assessment at all of the adverse impact which the withholding of injunctions in the terms sought would have upon the Plaintiff's operations, if any, during the time it takes for the Council to acquire the Plaintiff's land, by negotiation or by compulsory acquisition. 24 The next consideration is the question of delay on the part of the Plaintiff in seeking these injunctions. The photo evidence supplied by Mr Van Drie demonstrates that the construction works of which the Plaintiff complains are very substantial and must have been very evident to the Plaintiff during the several months which it must have taken in order to carry them to the stage at which they now are. Also it is a clear inference from the evidence that the construction works must have been discharging additional water on to the Plaintiff's land for some time, yet there is no explanation from the Plaintiff as to why it did not seek relief prior to the development works being substantially completed. 25 The evidence indicates that the Plaintiff has been actively monitoring development activity within the Warnervale area. There is evidence to suggest that the Plaintiff has acquainted itself with other development applications within the Council area and has objected to some of them. It is difficult to accept, and I do not accept, that the Plaintiff woke up to the fact that the works on the Defendants' lands had been constructed and could cause it loss only in the last few days, justifying an urgent application to the Court brought on with very short notice. 26 The next ground upon which I consider the balance of convenience is the vagueness of the terms of the orders which are sought. It seems to me that the wording of the order sought against the Council, namely, "taking any step to facilitate" any works, is far too imprecise to warrant the imposition of injunctive relief, with the consequence that there would be hanging over the Council's head the threat of contempt proceedings should the Plaintiff wish to complain that the terms of the order have, in some manner or other been breached. 27 In view of the time, I will not elaborate further upon the reasons which I have enunciated for my refusal of the application. I should say, in fairness, that there have been a number of subsidiary arguments addressed to me by counsel which I have not dealt with in these reasons, mainly for considerations of time. However, I trust that my reasons so far reveal the principal points upon which I have decided the application. 28 For the reasons which I have given, the Plaintiff's Notice of Motion is dismissed. 29 In my opinion, the issues arising on this application are sufficiently discrete and self-contained to warrant the costs of this application being paid by the Plaintiff. I order that the Plaintiff's Notice of Motion be dismissed with costs. – oOo –