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? Was Service of the s 91 Notice Effected? 1. Effective service of the s 91 Notice was critical because without it Ms Johnson could not be said to have breached the Notice. In the absence of breach, there was no serious question to be tried, and moreover, the Council were trespassing on her land and causing property damage. 2. Section 321(1) of the Protection of the Environment Operations Act 1997 ("POEOA") lists the methods of service that were available to the Council to serve the s 91 Notice (emphasis added): 321 Service of notices (1) For the purposes of this Act, any notice or other document may be issued or given to a person, or may be served on a person: (a) by delivering it personally to the person, or (b) by delivering it to the place of residence or business of the person and by leaving it there for the person with some other person, or (c) by posting it duly stamped and addressed to the person at the place last shown in the records of the appropriate regulatory authority as the person's place of residence or business, or (d) by posting it duly stamped and addressed to the person at the place indicated by the person as an address to which correspondence may be posted (including for example a post office box), or (e) by sending it by facsimile or electronic transmission (including for example the Internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person, or (f) by leaving it addressed to the person at a document exchange or other place (in accordance with usual arrangements for the exchange or other place) indicated by the person as an exchange or place through which correspondence may be forwarded to the person. 1. The Council relied on s 321(1)(e) of that Act. 2. Ms Johnson gave oral evidence to the effect that she did not recall getting a document that indicated that it was s 91 Notice and that she, in any event, had difficulty opening attachments to emails. 3. She was cross-examined by Mr McEwen SC, who showed her a number of emails passing between herself and the Council, and the Council and persons advising Ms Johnson at the relevant time (namely, Ms Belinda Rayment and Mr Robert Bell). These emails demonstrated, first, that this was, it could be readily inferred, the email address in use by Ms Johnson as at 20 July 2018, that is, the date of the s 91 Notice and the letter serving the Notice, both of which had been emailed to Ms Johnson using the same email address. I held that the s 91 Notice had been emailed to Ms Johnson in accordance with arrangements indicated by her as appropriate for transmitting documents. 4. Second, the emails referred explicitly to a "Clean Up Notice" and a "Clean Up Order" (see, in particular, the email from Mr Briggs dated 30 July 2018). An email from Ms Rayment to the Court dated 25 March 2019, stated that "we provided some initial telephone advice to Ms Johnson regarding the "Cleanup order"". I therefore find that Ms Johnson received the s 91 Notice and was aware of its contents. This finding is consistent with the conversation referred to in the file note of Mr Briggs of his site inspection of the Property on 21 March 2019, where the need to clean up the Property and a "Notice" were referred to by Ms Johnson and others on the Property at the time. Did the Council Have the Power to Enter the Property to Carry Out Demolition and Remediation? 1. Sections 92(2) and 111(1) of the POEOA provide as follows: 92 Clean-up by public authorities … (2) Voluntary clean-up action by public authorities If a public authority reasonably suspects that a pollution incident has occurred or is occurring, the public authority may take such clean-up action as it considers necessary. The public authority is authorised to take that action, whether or not it is directed to take clean-up action under subsection (1). ... 111 Power to enter land (1) A regulatory authority or public authority may, by its employees, agents or contractors, enter any premises at any reasonable time for the purpose of exercising its functions under this Chapter. 1. The Council is a "public authority" for the purposes of these provisions under the Act. 2. The s 91 Notice was not complied with by Ms Johnson. Pursuant to the provisions above, the Council was therefore authorised to enter the Property and carry out the works necessary to remove the asbestos contamination. 3. Ms Johnson gave oral evidence that in her opinion whatever asbestos there was on the Property was minimal (concentrated in and around the bathroom) and was not friable. Ms Johnson is, however, not an expert in this subject-matter and her evidence in this regard was inadmissible. Applicable Legal Principles 1. The applicable legal principles to be applied in granting interim injunctive relief were set out in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 (at [4] and [5]) and Tamworth (at [10]). Serious Question to be Tried 1. For the same reasons as those given in Tamworth (at [24]-[27]), I found with respect to this application that there was a serious question to be tried. Balance of Convenience 1. The balance of convenience also favoured the granting of a further extension, again largely for the reasons given in Tamworth (at [28]-[29]). As her oral evidence made plain, despite her best endeavours to clean up the Property (which I accept were genuine), Ms Johnson, who is on a disability pension, does not have the financial, physical, or mental capacity to comply with the terms of the s 91 Notice. This is understandable given its terms, terms which are justified given the nature of the risk posed by the asbestos on the Property. Ms Johnson confirmed that there were neighbours either side of the Property and that there was a school approximately 300m distance from her house. She also confirmed that she no longer resided at the Property. While Ms Johnson said that she asked the Council for assistance in cleaning up the property, ultimately, the responsibility for doing so was hers, and not that of the Council. 2. Further, while I accept that Ms Johnson (or those assisting her) did not remove the fence previously surrounding the Property, this did not matter. The attendant environmental risk remained, more than warranting the actions of the Council in entering the Property and carrying out the works. 3. Likewise, the Court was also very cognisant of the fact that after the works are completed, it is likely that little, if anything will remain of Ms Johnson's house located on the Property. Ms Johnson told the Court that the Property was her only asset. The house was, however, uninhabitable and the land was contaminated with asbestos. Orders 1. The orders of the Court were as follows: 1. that the defendant and her employees, agents, contractors, invitees, friends, associates any other person/s acting under her direction, authority or instruction, be immediately restrained from carrying out any works at the property known as 24 Northbrook Lane Manilla NSW 2346 ("the Property") until 5.00pm, 28 March 2019; 2. that the defendant and her employees, agents, contractors, invitees, friends, associates any other person/s acting under her direction, authority or instruction, immediately vacate the property and are restrained from entering the property until 5.00pm, 28 March 2019; 3. the question of costs is reserved; 4. the matter is stood over before Pepper J at 9.15am on 5 April 2019 (the defendant is to appear by telephone); and 5. the exhibits are to be returned. ********** 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: 28 March 2019