Lester v Minister for Planning [2011] NSWLEC 178

Land and Environment Court New South Wales

Medium Neutral Citation: Lester v Minister for Planning [2011] NSWLEC 178 Hearing dates: 12 October 2011 Decision date: 12 October 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Interlocutory undertaking and injunction recorded in paragraph 25 Catchwords: INJUNCTIONS:- interlocutory injunction and undertaking to restrain work pending determination of claim that development consent invalid - discretionary considerations including the Applicant's delay in commencing proceedings and further delay in seeking injunction - whether interlocutory injunction should be granted on balance of convenience. Legislation Cited: Environmental Planning and Assessment Act 1979 National Parks and Wildlife Act 1974 s 90 Cases Cited: Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249 Lester v Ashton Coal Mining Operations Pty Ltd [2011] NSWLEC 155 Category: Interlocutory applications Parties: Robert Lester (Applicant) Minister for Planning (First Respondent) Ashton Coal Operations Pty Ltd (Second Respondent) Representation: Mr A Oshlack, agent (Applicant) Ms V M Bosnjak (First Respondent) Mr T Howard (Second Respondent) Department of Planning and Infrastructure (First Respondent) McCullough Robertson (Second Respondent) File Number(s): 40840 of 2011

EX TEMPORE Judgment 1This is a motion by the applicant for interlocutory injunctions against the second respondent. 2By summons filed on 15 September 2011 the applicant, Robert Lester, claims the following relief against the first respondent, the Minister for Planning ( Minister ), and the second respondent, Ashton Coal Mining Operations Pty Ltd ( Ashton ): 1. A declaration that DA 309-11-2001 Mod 7, consented to [sic] the First Respondent on the 15 th of June, 2011 to the Second Respondent on land within Mining Lease ML 1533 described as Lot 3 1114623 and Lot 2 1089848 ("The Land") is invalid void and of no effect insofar as it allows the construction and operation of 15 gas venting wells on the surface of the land above the underground mine. 2. An order restraining the First Respondent from carrying out any work which includes land clearance and construction of related infrastructure for the gas venting wells on, within and below the land which seeks reliance on the authority of the determination. 3. An order granting access for the Applicant and his archaeological and mining experts onto the land for the legitimate forensic purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, of the extent of work and consequential impact on Aboriginal sites by the activities of the First Respondent. 3The summons was returnable on 7 October 2011. A notice of motion was filed and served that day in which the applicant seeks interlocutory injunctions in terms of paragraphs 2 and 3 of the summons. I have heard the motion today. Any interlocutory injunction would be for less than three weeks because the final hearing is to be expedited to 1 November 2011. 4Ashton offers the following interlocutory undertaking: The second respondent undertakes to the Court not to carry out works for the purpose of the construction of any new surface gas well (including any land clearing for any such purpose) in reliance on Modification No 7, granted on 15 June 2011 to DA 309-11-201 for the period until 4.00 pm on 1 November 2011. 5The applicant seeks a supplementary interlocutory injunction until 1 November 2011: see [13] below. 6In light of the undertaking offered by Ashton, and without any admission by the respondents, the parties were content for the Court to proceed on the assumption that there was a serious question to be tried and to determine the residual question of the additional interlocutory injunction sought by the applicant on the balance of convenience.