Blacktown City Council ('the Council') has brought civil enforcement proceedings to restrain what it alleges are on-going breaches of the Environmental Planning and Assessment Act 1979 ('the Act') by Mr Jason Saker (the first respondent) carrying out or permitting the carrying out of prohibited development.
Mr Jason Saker is the occupier of land comprising Lot 134 in Deposited Plan 32148, known as 50 Shane Park Road, Shanes Park ('the property'). The property is owned by Mr Sam Saker (the second respondent) and Mr Bruce Gleeson, as trustee of the property of Mr Jason Saker, who is a bankrupt (the third respondent), as tenants in common in equal shares. Mr Jason Saker resides at the property.
The Council alleges that, from late 2016 to date, Mr Jason Saker has received fill consisting of building waste, soil, rocks and other material ('the fill material') on the property and undertaken earth works involving the spreading of the fill material. The Council alleges that the use of the property to receive the fill material and the undertaking of earth works involving the spreading of the fill material is development that is prohibited on the property, which is zoned RU4 Primary Production Small Lots, under Blacktown Local Environmental Plan 2015. The carrying out of prohibited development is forbidden under s 76B of the Act.
On 22 December 2016, the Council issued an order under s 121B of the Act ordering Mr Jason Saker to:
1. immediately cease the carrying out of unapproved earth works, including filling and levelling the property; and
2. within 60 days of the date of the order, restore the property to its approved status before the work was carried out by removing all fill material and returning the land to its natural ground level.
The Council alleges that Mr Jason Saker did not comply with either order: he continued to receive fill material and undertake earth works on the property, contrary to order 1, and did not restore the property within 60 days or at all, contrary to order 2.
On 1 March 2017, the Council issued an emergency order under s 121B of the Act ordering Mr Jason Saker to:
1. immediately cease carrying out unapproved earth works, including filling and levelling the property;
2. within 14 days of the date of the order, remove all fill material from the property;
3. within 14 days of the date of the order, provide the Council with receipts and documentation as to the lawful disposal of the fill material from the property; and
4. within 14 days of the date of the order, restore the land to its natural level before the work was carried out.
The Council alleges that Mr Jason Saker has failed to comply with any of these orders: he has continued to receive fill material and undertake earth works, contrary to order 1, and has failed to remove the fill material and restore the property within 14 days or at all, contrary to orders 2, 3 and 4.
On 22 March 2017, the Council commenced proceedings to restrain and remedy Mr Jason Saker's breaches of the Act. In the summons commencing the proceedings, the Council sought interlocutory injunctive relief restraining Mr Jason Saker, until further order, from receiving fill material and undertaking earth works involving the spreading of fill material on the property. The Council's application for interlocutory relief was heard ex parte on 24 March 2017. The Council had been unable to serve Mr Jason Saker by that time.
Justice Moore granted an interlocutory injunction restraining Mr Jason Saker, his servants, agents and invitees, from receiving fill material and undertaking earthworks involving the spreading of fill material. The injunction was stated to be until further order, although the matter was listed before the duty judge today.
Justice Moore also made an order that, if personal service of the orders of Mr Jason Saker was not able to be effected, the orders could be served by leaving a sealed copy of the orders in the letterbox of the property and affixing to the gates at the property a sealed copy of the orders in an envelope addressed to Mr Jason Saker.
Today, the Council appeared and mentioned the matter on behalf of Mr Sam Saker (the second respondent). Ms Lam, solicitor, appeared for the third respondent. Mr Jason Saker (the first respondent) did appear, although he was a little late. The matter was stood down to await Mr Saker's arrival. On appearing, I explained to Mr Saker what had occurred before Moore J and the interlocutory injunctive orders that his Honour had made. I inquired whether Mr Saker wished to apply to discharge the interlocutory orders. Mr Saker said that he did not wish to apply to have the interlocutory orders made by Moore J discharged. That is not to be taken as an admission of the breach alleged by the Council; simply that he did not wish to contest the interlocutory order but rather would wait to contest the proceedings at the final hearing.
In circumstances where the interlocutory injunction was granted ex parte, and hence Mr Jason Saker as the person enjoined did not have an opportunity to be heard before it was granted and to hear the reasons why the interlocutory injunction was granted, I consider I ought to now give some reasons why I consider that it is just and appropriate that the interlocutory injunction that has been granted should be maintained.
The grant of an interlocutory injunction depends on the applicant showing that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction: see Tegra (NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA 1; [2007] NSWLEC 806 at [6].
The Council has established that there are serious questions to be tried in relation to the breaches of the Act. The breaches involve, first, the failure to comply with the order under s 121B issued on 22 December 2016; secondly, the failure to comply with the emergency order under s 121B issued on 1 March 2017; and thirdly, the breach of s 76B of the Act by carrying out development that is prohibited on the land.
By the affidavit evidence of Mr Jason Roberts, the Council has established that the property is zoned RU4 Primary Production Small Lots under the Blacktown Local Environmental Plan 2015. In that zone, use of the land to receive the fill material and to undertake earthworks involving the spreading of fill material is prohibited. Mr Roberts's evidence, including photographic evidence, establishes that large volumes of fill material have been received over the period from late last year to the present day and that the fill material has been spread out across the property. The character, extent and other features of the fill received and the earthworks undertaken are such as to amount to development for a purpose that is prohibited. The carrying out of such prohibited development was and is in breach of s 76B of the Act.
Mr Roberts's evidence establishes that Mr Jason Saker failed to comply with each of the s 121B order of 22 December 2016 and the emergency order of 1 March 2017. Those failures involved breaches of s 121B of the Act.
The balance of convenience clearly favours the granting of the interlocutory injunction. There is a need to enforce the law and the orderly development and use of the environment: see Tegra (NSW) Pty Ltd v Gundagai Shire Council at [19]. Continued receipt of fill material is likely to cause harm to the environment: Tegra (NSW) Pty Ltd v Gundagai Shire Council at [18]. The environmental harm caused by continuing to receive fill material and undertaking earthworks involving the spreading of the fill material will be difficult and costly to remedy.
The prejudice that therefore will be suffered if the interlocutory injunction were not to be continued is significant.
On the other hand, there is no evidence that Mr Jason Saker will suffer any prejudice if the interlocutory injunction is maintained and he is prevented from receiving fill material and undertaking earthworks to spread the fill material until further order. Indeed, Mr Jason Saker is already prevented from receiving fill and undertaking earthworks on the property by an injunction granted by the Federal Circuit Court (Judge Street) on 23 March 2017. The interlocutory injunction granted by Moore J on 24 March 2017 was therefore after the interlocutory injunction granted by Judge Street and cannot cause any additional prejudice to Mr Jason Saker.
In these circumstances, the balance of convenience favours maintaining the interlocutory injunction that has been granted.
I, therefore, do not disturb the interlocutory injunction that was granted on 24 March 2017. It will continue until further order.
As the matter is listed before the Court today, it is appropriate to make case management directions to ready the case for hearing. The Council seeks directions setting a timetable for the Council's evidence, the respondents' evidence and the Council's evidence in reply and the listing for a second directions hearing, at which time the matter can be listed for a final hearing. The third respondent agrees with the Council's suggested directions. The second respondent has not had an opportunity to consider the Council's suggested directions, although he had asked the Council to mention the matter on his behalf. Mr Jason Saker, the first respondent, consents to the Court making the directions suggested by the Council. Mr Jason Saker said that he was going to seek legal advice and that that legal advice may affect his ability to comply with the timetable. However, the suggested directions include the grant of liberty to restore the matter to the Court with 24 hours' notice to the other parties. Mr Jason Saker could, therefore, exercise the liberty to restore the matter and seek a variation of the timetable if the legal advice he receives makes that appropriate.
I consider it is appropriate to make directions as sought by the Council and consented to by the first and third respondents. If the second respondent finds the timetable to be difficult to comply with, he too can exercise the liberty to restore the matter to the Court and seek a variation of the timetable.
Accordingly, the Court makes the following directions:
1. The applicant is to serve its affidavits in chief and bundle of tendered documents and points of claim by 21 April 2017.
2. The respondents are to serve their affidavits in chief and bundle of any additional documents and points of defence by 19 May 2017.
3. The applicant is to serve any affidavits in reply and bundle of any additional documents in reply and points of reply by 26 May 2017.
4. The matter is listed for a second directions hearing before the list judge on 16 June 2017.
5. At the second directions hearing, the parties are to hand to the Court an agreed estimate or competing estimates of the time required for the hearing, broken down as follows:
1. opening addresses,
2. tender of written evidence and objections,
3. cross examination,
4. any view of the property,
5. closing submissions.
1. Grant liberty to restore the matter with 24 hours' notice to the other parties.
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Decision last updated: 01 May 2018