Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157

Land and Environment Court New South Wales

Medium Neutral Citation: Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157 Hearing dates: 9, 10, 11 September 2015 Date of orders: 11 September 2015 Decision date: 11 September 2015 Jurisdiction: Class 4 Before: Craig J Decision: 1. Dismiss the applicant's notice of motion dated 4 September 2015.

2. Stand over the proceedings to 9.15am on Tuesday 15 September 2015 for directions and to fix a date for hearing.

3. Costs of the motion are reserved. Catchwords: INTERLOCUTORY ORDERS – application for urgent interlocutory injunction to restrain beach protection works – serious question to be tried – breach of s 112 of Environmental Planning and Assessment Act 1979 – whether proposed works are likely to significantly affect the environment – sufficient evidence to demonstrate a reasonably arguable case – balance of convenience – competing public interests – risk of harm to both the public and private domain if works are not carried out – absence of an undertaking as to damages – grant of injunction may not maintain the environmental status quo – prejudice to third parties if injunction granted – works able to be removed without significant detriment to the environment – application dismissed Legislation Cited: Coastal Protection Act 1979 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 Land and Environment Rules 2007 State Environmental Planning Policy (Infrastructure) 2009 Cases Cited: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; 195 LGERA 229 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 Positive Change for Marine Life Inc v Byron Shire Council [2015] NSWLEC 147 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1 Category: Procedural and other rulings Parties: Positive Change for Marine Life Inc (Applicant) Byron Shire Council (First Respondent) Shuttlewood Properties Pty Ltd (Second Respondent) John Vaughan (Third Respondent) Representation: Counsel: I Hemming SC with J Reid (Applicant) M Hall SC with C Novak (First Respondent) A Galasso SC (Second and Third Respondents)