In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
[2013] HCA 18
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806
Source
Original judgment source is linked above.
Catchwords
Mekail v HanaIn the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332[2013] HCA 18
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806
Judgment (6 paragraphs)
[1]
Judgment
At approximately 9.30am this morning, the Court received an application made pursuant to r 25.2 of the Uniform Civil Procedure Rules 2005 (NSW) for urgent interlocutory relief to restrain the respondent, David McSweeney, from removing a large mature tree located on the property of the respondent in a heritage conservation area in Darlinghurst. The applicant, Faye Ashworth, is a neighbour of Mr McSweeney.
The Court was initially provided by email a draft summons, draft orders and a number of background documents including a photograph and a copy of a letter dated 16 September 2019 from the Council of the City of Sydney ('Council') to Mr McSweeney styled "Permit for clearing vegetation - Approval" ('Permit'). A photograph of what the Court was informed was the Celtis sinensis (Hackberry tree), being the subject of Ms Ashworth's concern, was also tendered and became Exhibit A.
Thereafter at 10.15am, the ex parte hearing proceeded before me by way of audio visual link with Mr S Robertson of counsel appearing for Ms Ashworth. Ms Ashworth sought the interlocutory relief claimed in the draft summons, being:
"Interlocutory order
1 ORDER that the First Defendant is restrained from whether by himself or his servants or agents, demolishing (or cutting or taking other steps for the purposes of demolishing) any Celtis sinensis (Hackberry) tree from the First Defendant's property until further order.
Final relief
2 A declaration that the permit number TPR/2019/284 is void.
3 Such further or other orders as the Court thinks fit.
4 An order that the First Defendant pay the Plaintiff's costs of these proceedings."
Ashworth v McSweeney [2020] NSWLEC 50 | Case summary | Zoe
Following the short hearing, I granted the ex parte interlocutory relief sought, and indicated that I would thereafter publish short reasons. My reasons now follow.
Mr Robertson made the following submissions in support of the urgent relief:
1. Ms Ashworth in "recent days", after hearing a "rumour" that a significant tree was to be removed in the area, had made enquiries through her assistant with Council as to whether there were any development or other approvals to remove nearby trees and Ms Ashworth's assistant was informed by a Council representative that none existed.
2. Despite this, upon speaking with an arborist (or "tree lopper") who had this morning attended the property and had commenced removing the mature Hackberry tree, Ms Ashworth was shown the letter dated 16 September 2019 (being the Permit). Ms Ashworth again contacted Council and Council only then confirmed the existence of the Permit.
3. The incorrect advice previously received by Ms Ashworth from Council explains why the present application is now on an urgent basis and with "less than ideal material".
4. The tree was "being removed" as the application for interlocutory relief was being heard.
5. The basis of the challenge to be made in the summons for final relief relates to cl 5.10(3) of the Sydney Local Environmental Plan 2012 (NSW), which was the specific clause cited in the Permit pursuant to which the tree was being removed. Clause 5.10 relevantly provides:
Part 5 Miscellaneous provisions
5.10 Heritage conservation
...
(1) Objectives The objectives of this clause are as follows -
(a) to conserve the environmental heritage of the City of Sydney,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
...
(2) Requirement for consent Development consent is required for any of the following -
(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) -
(i) a heritage item,
(ii) an Aboriginal object,
(iii) a building, work, relic or tree within a heritage conservation area,
…
(3) When consent not required However, development consent under this clause is not required if -
(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development -
(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and
(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or
…
(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or
(d) the development is exempt development.
...
1. The documents before the Court demonstrate that Mr McSweeney's property is within a heritage conservation zone and cl 5.10(2)(a)(iii) requires development consent for the demolition or removal of a tree in a heritage conservation zone. While noting that, according to the investigations of Ms Ashworth, development consent had not been given for the removal of the tree, and the specific exemptions contained within 5.10(3)(a), Mr Robertson submits that, in order for these exemptions to apply, Council must have reached a state of satisfaction and provided advice in writing of its state of satisfaction.
2. No Council acting reasonably could have come to the view that the removal of such a substantial tree constitutes "maintenance", or that the removal of this tree could be regarded as of a minor nature, and, if there was the requisite satisfaction, it is therefore legally unreasonable in the Wednesbury sense and thus a nullity.
3. While it is not possible at this stage to demonstrate that there was not some alternate source of power on the material currently before the Court, the evidence at least demonstrates that what is required is not just a permit under cl 5.10, but also a state of satisfaction under cl 5.10(3) - whether that be by way of a notice in writing consistent with cl 5.10(3)(a), or through a development consent consistent with cl 5.10(3)(2).
4. Although there may be other facts not known to Ms Ashworth and that there is a suggestion in the documents before the Court that there may be some difficulty with the tree itself (disease etc), in circumstances where the tree is in the process of being cut down as the application is being heard, the balance of convenience strongly supports the grant of temporary relief for one day.
5. Given the public interest in the application (noting that there were a number of interested neighbours presently on the street adjacent to the activity being carried out) and the interests of the community more generally, the application is not solely for the benefit of Ms Ashworth and therefore the Court should not require an undertaking as to damages.
[2]
Applicable principles
The principles governing the grant of interlocutory relief are well-known. The applicant must demonstrate there is a serious question to be tried, such that there is a sufficient likelihood of success to justify the granting of the interlocutory injunction, and that the balance of convenience favours granting the injunction. These principles have been stated on many occasions: Tegra (NSW) Pty Limited v Gundagai Shire Council [2007] NSWLEC 806; (2007) LGERA 1 at [6].
[3]
Serious question to be tried
In considering the requirements in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] HCA 1 for a "prima facie" case, the following was stated in Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths) at [21-350]: "the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief were granted." Put another way, the applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending trial.
I am conscious that the power for the removal of the tree may arise under an alternate source of power, such as that which could be derived from cl 5.10(3)(c) in circumstances where Council is satisfied that the tree "is a risk to human life or property" and the requisite state of satisfaction under cl 5.10(3)(c) is not required to be in writing as is the case under cl 5.10(3)(a). Irrespective of this, the Permit does not invoke any alternate power and explicitly rather states that Council is satisfied that the tree may be removed on the basis that the "proposed works are of a minor nature /are for the maintenance of a tree within a heritage conservation area…". As such, given the significant stature of the tree as shown in the photographic evidence, I am satisfied that there is a serious question to be tried as to whether the purported state of satisfaction of Council, as expressed within the Permit, was unreasonable: Health Care Complaints Commission v Sultan [2018] NSWCA 303 at [170] (Meagher JA); Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ). I note that this question is also fundamental in order to determine whether the final relief sought by Ms Ashworth, being for a declaration that the Permit is null and void, should be granted.
[4]
Balance of convenience
In Iseek Communications Pty Ltd v Jones [2017] NSWSC 251 at [46], Emmett AJA stated the factors that should be taken into account in determining where the balance of convenience lies as follows:
"…the prima facie strength of [the applicant's] case, whether the potential damage that [the applicant] is likely to suffer if an order is not made outweighs the potential damage that [the respondents] are likely to suffer if an order is made and whether [the applicant's] undertaking as to damages is adequate."
Then it becomes a matter of seeing if, in all the circumstances, the Court should nonetheless exercise its discretion by declining to grant an interlocutory injunction: Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 at [34].
On the limited material before me, I was not satisfied that the circumstances articulated are such that an undertaking as to damages should not be given. However, I find that irreparable injury, which I consider as part of the balance of convenience, favours the granting of ex parte interlocutory relief.
In the circumstances, I am satisfied that there is a serious question to be tried and as the work is being presently undertaken, and with the requirement for an undertaking as to damages, the balance of convenience favours the granting of ex parte relief sought for a very limited time.
[5]
Orders
The orders of the Court are:
1. Upon the applicant giving the usual undertaking as to damages, order that the first respondent is restrained from whether by himself or his servants or agents, demolishing (or cutting or taking other steps for the purposes of demolishing) any Celtis sinensis (Hackberry) tree from the first respondent's property until further order.
2. The applicant is to file and serve the summons and order within 24 hours.
3. The proceedings will be listed on 8 May 2020 at 10.00am.
4. Liberty to apply on short notice.
[6]
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: 08 May 2020