Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185

Land and Environment Court New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185 Hearing dates: 28 October 2011 Decision date: 28 October 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Proceedings stood over for mention before judge who has reserved judgment in proceedings 40880/10. Catchwords: INTERLOCUTORY INJUNCTION:- to restrain work alleged to be in breach of a condition of a major project approval - issue closely related to or overlapping with issues in proceedings in which another judge of the Court has reserved judgment - whether an abuse of process to commence fresh proceedings without first seeking leave to re-open the proceedings before that other judge to include the new claim and to move in those proceedings for the interlocutory injunction. Cases Cited: Kennedy v NSW Minister for Planning [2010] NSWLEC 129 Kennedy v NSW Minister for Planning [2010] NSWLEC 240. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Category: Interlocutory applications Parties: Kennedy, Roy "Dootch" (Applicant) Stockland Developments Pty Ltd (Respondent) Representation: COUNSEL: Mr A Oshlack, agent (Applicant) Mr H El-Hage (Respondent) SOLICITORS: Herbert Greer (Respondent) File Number(s): 40977 of 2011

EX TEMPORE Judgment 1I am hearing an application for an interlocutory injunction. 2This the latest in a number of judicial review proceedings brought by the applicant Mr Roy "Dootch" Kennedy against Stockland Developments Pty Ltd, the developer of land at Sandon Point, a large coastal plain north of Wollongong. They include unsuccessful proceedings in which he claimed that a major project approval under Pt 3A of the Environmental Planning and Assessment Act 1979 was invalid and subsequent unsuccessful proceedings in which he claimed that approval of modifications to the major project approval were invalid: Kennedy v NSW Minister for Planning [2010] NSWLEC 129, Kennedy v NSW Minister for Planning [2010] NSWLEC 240. 3They also include proceedings 40880/10 in which Sheahan J has reserved judgment. In those proceedings Mr Kennedy claims (inter alia) declarations that Stockland has failed to comply with conditions of that approval, that any purported construction certificate is invalid, and that Stockland has carried out or is carrying out various works on the land without a valid construction certificate or development consent, or in breach of conditions of the development consent. In those proceedings he also claims an injunction in the following terms: "An order restraining [Stockland] its employees, sub contractors, servants or consultants to undertake any activity on the land and all areas outside the concept plan area in relation to the Approval that may impact on the environment including but not limited to: ground disturbance, vegetation clearance, removal of plants, tree marking, surveying and damage, movement or destruction to any item of Aboriginal heritage." 4Late yesterday afternoon Mr Kennedy commenced these proceedings by filing a summons in which he seeks a declaration that Stockland will, unless restrained, breach the same approval by undertaking work not authorised by it for the purpose of clearing and constructing a roadway and related infrastructure on a certain part of the site. He also seeks a final and interlocutory injunction in virtually identical terms to that sought in the proceedings in which judgment has been reserved except for the deletion of the words "and all areas outside the concept plan area in relation to the Approval". 5This morning Mr Kennedy's application for an interlocutory injunction in those terms came before me as the duty judge for an urgent hearing. 6The work to which these proceedings relate allegedly commenced earlier this week. 7This morning I asked Mr Oshlack, Mr Kennedy's authorised agent, to identify the alleged breach of the major project approval upon which Mr Kennedy relied. Mr Oshlack informed me that the alleged breach was of condition A4 of the major project approval which states: "The Proponent shall comply with all relevant conditions of the approved "Concept Plan for Redevelopment of Sandon Point MP06_0094", approved by the Minister 21 December 2006 including any approved modifications to the Concept Plan." 8Mr Oshlack told me that the "relevant conditions" of the concept plan approval with which the applicant alleges Stockland did not "comply" are conditions B1(2)(a) and (b) relating to Aboriginal cultural heritage. Condition B1 of the concept plan approval provides: "B1 Aboriginal cultural heritage (1) The ARV Statement of Commitments concerning cultural heritage are to be modified to include measures outlined below. (2)The Proponent shall: (a) include an appropriately qualified and practising anthropologist as part of any investigations into the potential Aboriginal cultural heritage values of a "Women's Area", and (b) submit the report by the appropriately qualified and practising anthropologist as part of any future application proposing to develop the ARV lands." 9Mr Oshlack told me that it is alleged, based on documents that he proposes to tender, that Stockland did not include any anthropologist as part of any investigations into potential Aboriginal cultural heritage values of a "Women's Area". Consequently, there was no "report" submitted by an anthropologist as part of any future application proposing to develop the ARV lands. Accordingly, condition B1(2)(a) and (b) of the concept plan approval was not complied with. 10Stockland, I understand, was unaware that this was the case that the applicant was seeking to advance on this interlocutory injunction application until it was articulated by Mr Oshlack. In the short time available to consider that case, Stock l a nd's response, at least in part, is that Condition B1 bound ARV, not Stockland. In that regard, I note that the concept plan approved by the Minister (in 2006) was lodged by Stockland and ARV (Australian Retirement Villages): Kennedy v NSW Minister for Planning [2010] NSWLEC 129 at [31]. 11It is now apparent that the issues in these proceedings are closely related to, or overlap with, the issues in the proceedings in which Sheahan J has reserved judgment. Thus, the spectre arises of different judges of this Court simultaneously considering and deciding closely related or overlapping issues in different proceedings unless Sheahan J were to determine both proceedings. The unfortunate appearance of judge-shopping, even if unintended (and I do not suggest that it was intended) may arise. In my view, if the work the subject of the proceedings before me had occurred or been threatened by the time of the hearing before Sheahan J, any legal complaint about them should have been included in those proceedings otherwise the applicant may have been estopped from raising them later under the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Under that principle, parties must bring forward all material matters for determination in the proceedings, meaning that the parties cannot raise in subsequent proceedings matters that could, and should reasonably, have been raised in earlier proceedings. The principle applies even though the matter was not essential to the determination of the earlier proceedings. 12I have formed the view that, in these circumstances, it is an abuse of process in the technical sense for Mr Kennedy to have commenced these separate proceedings without first seeking leave from Sheahan J, if his Honour was available, to re-open the proceedings before his Honour to include that claim and to move for an interlocutory injunction before his Honour based on that claim. Only if such leave were refused, might fresh proceedings be justified. One way or another, the issue now sought to be raised should be placed before Sheahan J, if he is available. His Honour will be available, I understand, for this matter to be mentioned before him today. 13Accordingly, I stand over these proceedings before Sheahan J today. That will give the applicant the opportunity, if he wishes, of applying to his Honour for leave to re-open the proceedings in which his Honour has reserved judgment and if leave were to be granted, to move for an interlocutory injunction. If his Honour were to decide that the appropriate course is to grant such leave, then the proceedings before me might be dismissed since they would become superfluous. That may not have any significant costs consequences because the material sought to be put before the Court is likely to be the same regardless of which procedural route is followed. 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. Decision last updated: 31 October 2011