Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2018] NSWLEC 38

Land and Environment Court New South Wales

Medium Neutral Citation: Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2018] NSWLEC 38 Hearing dates: 23 March 2018 Date of orders: 23 March 2018 Decision date: 23 March 2018 Jurisdiction: Class 4 Before: Moore J Decision: See [4] Catchwords: INTERLOCUTORY APPLICATION - ex parte application to restrain filling of land - serious issue to be tried - balance of convenience in favour of preserving the status quo - "usual undertaking" not required - interim injunction granted Category: Procedural and other rulings Parties: Central Coast Council (Applicant) 422 Pacific Highway Wyong Pty Ltd (First Respondent) Yialkin Shevket (Second Respondent) Ozel Shevket (Third Respondent) Arja Leena Jortikka (Fourth Respondent) Jarmo Kari Tapio Jortikka (Fifth Respondent) William A Dagger (Sixth Respondent) Representation: Counsel: Mr T To, barrister (Applicant)

Solicitors: Local Government Legal (Applicant) File Number(s): 92915 of 2018 Publication restriction: No

TABLE OF CONTENTS Introduction The evidence on the interlocutory application Material from the Company The matters demonstrating a serious issue to be tried The balance of convenience The absence of the "usual undertaking"

Judgment

Introduction 1. On Friday 23 March 2018, I agreed to issue, in modified form, ex parte orders sought by Central Coast Council (the Council) to restrain 422 Pacific Highway Wyong Pty Ltd (the Company) from continuing to import soil onto a property at Wyong comprising portions of Lot 21 in Deposited Plan 1006849 and Lot 3 in Deposited Plan 543325. These two allotments abut each other with Lot 21 having a frontage to the Pacific Highway. Lot 21 has a street address of 422 Pacific Highway, Wyong. 2. Mr T To, barrister for the Council, appeared before me on the making of the application for the interim injunction. The Council had commenced, earlier that day, Class 4 civil enforcement proceedings against the Company and five other respondents. These five respondents comprised the owners of Lot 3 (as the Second and Third Respondents); Arja Jortikka and Jarmo Jortikka (as the owners of Lot 21) (as the Fourth and Fifth Respondents); and Mr William Dagger, a private certifier who had issued a complying development certificate for the earthworks being undertaken by the Company on Lot 3 (as the Sixth Respondent). 3. At this point, I note that I was satisfied that it was appropriate to make short‑term interlocutory orders against the Company and against the Sixth Respondent as it was the potential (although unlikely) position that Mr Dagger could be regarded as being an agent of the Company for the purposes of the Company's activities. 4. I indicated that I was only prepared to make the orders on a short-term basis and that I required the matter to come back to me on the morning of Tuesday 27 March 2018 at 9.30 am for a further interlocutory hearing. For reasons later set out, I was satisfied that the Company had been served with the summons commencing the Class 4 proceedings, but that Mr Richard Clark, the Director of the Company, had informed my office that he was in Wyong and unable to attend the hearing. I concluded that it was appropriate that the adjournment, and further hearing, should be incorporated in the orders so that Mr Clark would have the opportunity to obtain legal representation, or appear himself at the resumed hearing. As a consequence, I made the orders set out immediately below: (1) The First Respondent, by itself, its servants or agents, case the importation of fill material to the land known as 422 and 450 Pacific Highway, Wyong (Land) immediately upon the service of these orders on the First Respondent pursuant to order 2(a). (1A) Order 1 has effect until 9.30 am on Tuesday 27 March 2018. (1B) The matter is set down before Moore J at 9.30 am on Tuesday 27 March 2018. (2) Service of these orders may be effected as follows: (a) In the case of the First Respondent, to the e-mail address: info@timecon.com.au, and by hand to 40 Gindurra Road Somersby NSW 2250; and (b) In the case of the Sixth Respondent, to the e-mail address: wadagger@bigpond.com. (3) Costs be reserved. 1. I made the orders because I was satisfied that there was a legitimate issue to be tried with respect to the substantive relief sought by the Council in the Class 4 proceedings and that the balance of convenience favoured restraining the Company from undertaking further action of the nature about which the Council made complaint (if only on the short-term basis until the time and date when I had had the matter set down for a further hearing before me).