Tamworth Regional Council v Johnson (No 2) [2019] NSWLEC 34

Land and Environment Court New South Wales

Medium Neutral Citation: Tamworth Regional Council v Johnson (No 2) [2019] NSWLEC 34 Hearing dates: 26 March 2019 Date of orders: 26 March 2019 Decision date: 28 March 2019 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [25]. Catchwords: INJUNCTION: application for an extension of interim injunctive relief – legal principles to be applied – serious question to be tried – potential for real harm to the environment and human health – usual undertaking as to damages given – balance of convenience favours the granting of further interim relief. Legislation Cited: Protection of the Environment Operations Act 1997, ss 92(2), 111(1), 321(1) Cases Cited: Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 Tamworth Regional Council v Johnson [2019] NSWLEC 32 Texts Cited: Category: Procedural and other rulings Parties: Tamworth Regional Council (Plaintiff) Jennifer Lynette Johnson (Defendant) Representation: Counsel: Mr Peter McEwen SC (Plaintiff) Ms Jennifer Johnson (in person) (Defendant)

Solicitors: Coutts Mallik Rees Solicitors (Plaintiff) Ms Jennifer Johnson (in person) (Defendant) File Number(s): 2019/91274 Publication restriction: N/A

Judgment

Tamworth Regional Council Seeks to Extend an Injunction 1. This judgment must be read in conjunction with the judgment in Tamworth Regional Council v Johnson [2019] NSWLEC 32. That judgment sets out the background facts and relevant legislative framework that govern the present application. These are relied upon without repetition. Moreover, for the sake of brevity, these reasons adopt the same abbreviations as contained in that judgment. 2. At the conclusion of the application for interim injunctive relief referred to in the case above, the Court granted the relief sought by the Council until 10am, 26 March 2019. It stood the proceedings over to the Court to that time and date. 3. When the matter resumed, the Council sought an extension of the injunction granted on 22 March 2019 (as amended on 23 March 2019) to 5pm, 28 March 2019. The Council relied upon an affidavit of Mr Ross Briggs, affirmed 26 March 2019 (an unsworn draft version was rejected by the Court). 4. Ms Johnson, who had been notified of the proceedings, appeared in person. She had driven from Manilla (near Tamworth) to attend. Given her ongoing health issues, this was commendable. 5. The extension of the interim injunction was to permit demolition and remediation works of the asbestos contaminated material and soil on the Property to be completed by the Council ("the works"). These works had commenced on 25 March 2019 and were due to be completed on or about 27 March 2019. Over the course of the weekend, Mr Briggs had arranged for the appointed demolition and remediation contractor to attend the Property for the purpose of commencing the works required by the s 91 Notice. 6. It should be noted that when the matter came before the Court on 22 March 2019, the Court was not informed that it was the intention of the Council to commence these works forthwith. Given the ex parte nature of the application, the Court should have been told of the Council's plans in this regard. Rather, the initial reason given to the Court for seeking the injunction was to ensure that Ms Johnson (or any one assisting her) did not enter the land and disturb any material on it; not to prevent her from impeding the foreshadowed works. At the very least, had the Council been entirely candid with the Court, much of the length of the hearing on 26 March 2019 may have been avoided. The Council could have endeavoured to satisfy the Court at that stage that the s 91 Notice had been properly served on Ms Johnson and that the Council had the power to enter the Property to effect the works. 7. The costs implications of this omission and of the failure of the Council to give the correct address for the Property the subject of the injunctive relief sought on 22 March 2019, were reserved. 8. After a lengthy hearing, orders were made by the Court on 26 March 2019 granting the further injunctive relief (although Ms Johnson was willing to give an undertaking not to enter the Property, the Council nevertheless pressed for the making of orders by the Court). Given that the matter concluded after 4pm, brief oral reasons were given for granting the relief with the promise that written reasons would follow. These are those reasons. 9. Upon been informed of the reason why the Council was seeking an extension of the injunction, the Court raised the following issues with the parties: 1. whether the Council had properly served the s 91 Notice on Ms Johnson. Ms Johnson disputed having received it; and 2. whether the Council had the power to enter onto the Property to carry out the works?