Blacktown City Council v Wilkie &

SECOND & THIRD RESPONDENTS: Mr M Fraser (Barrister) SOLICITORS: Mackintoshs

IN THE LAND AND Matter No. 40025 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 6 March 2001 Blacktown City Council Applicant v Misty Wilkie First Respondent Mark Reid t/as Graveyard Recycling and also t/as The Graveyard Recycling Second Respondent Graveyard Recycling Pty Limited ACN 094 059 417 Third Respondent EXTEMPORE JUDGMENT HIS HONOUR:

1. The applicant, Blacktown City Council ("the council") claims interlocutory relief against the respondents in which it seeks to restrain the use of a property at the corner of Grange Avenue and Riverstone Road, Marsden Park for the purpose of a tip, waste management facility, garbage depot, recycling yard or the like use.
2. Shortly stated, the council contends that the property is being used as a recycling yard or a waste management facility which is an industrial use. The land is within Zone 1(a) (General Rural Zone) under the Blacktown Local Environmental Plan 1998, which commenced on 28 October 1998. An industry other than a rural industry or an extractive industry is a prohibited use within such zone.
3. The respondents contend that the land is being used for the purpose of a landscape supply business pursuant to a development consent therefor granted by the council on 11 May 1998. That development consent allows the stockpiling and storage of sand, soil, compost and other landscape supplies in bins located within the property as shown on the plans to which the consent relates: see condition 17 of the consent.
4. The evidence shows that demolition materials such as bricks, concrete, timber and other building rubble are brought onto the site. The material is said by respondents to be material which is stored and sorted and unwanted material is then removed for tipping. The material is screened and then processed on the site. According to the respondents, concrete is crushed to create an aggregate for use in pathway and driveway construction or for drainage fill for landscaping works; bricks are crushed for the same uses; woodchips are obtained by the chipping of builders' timber; and soil is screened and sieved. The net result is said to be the production of recycled useable landscape materials.
5. It seems reasonably clear to me that the activities of crushing concrete and bricks and the chipping of timber are activities which are outside the terms of the existing development consent. That consent is subject to a condition that the development be conducted in accordance with a letter submitted with the development application. The letter submitted with the development application refers to landscaping materials being carted to the land and then sold. There is no reference to the breaking up of materials by crushing or chipping.
6. It also seems from photographs tendered in evidence that the material is not being stored within the bins as shown on the plans to which the development consent refers. This may simply mean that the use is not being carried out in accordance with the development consent.
7. The use of the land in the manner which I have briefly described is said by the council to give rise to environmental consequences. There are no controls in place to prevent the dispersion of wind blown material, although there is no evidence that any wind blown material is present. There are no sedimentation controls in place. It is suggested that pollution is entering a creek downstream from the land, but the evidence at this stage does not enable me to make a positive finding that this is occurring as a consequence of activities on the land.
8. The first respondent, Ms M Wilkie, is the holder of a lease of the land from the owner, Mr M Constantine. That lease is for a period of three years expiring in September 2002 but with an option to renew for a further period of three years expiring in September 2005. Ms Wilkie has agreed to sublease the property to the third respondent Graveyard Recycling Pty Limited for three years terminating on 22 October 2003.
9. The second respondent, Mr Mark Reid, is the sole director and secretary of the third respondent and he also carries on business under the business name of the Graveyard Recycling.
10. The third respondent employs six persons in the landscape supply business being carried out on the land. Mr Reid has personally invested approximately $290,000 in the business and has undertaken liabilities in the nature of bank guarantees and the like relating to the business of approximately $200,000.
11. If orders were made which prevented the business from continuing on the land it would be some months before the respondents would be able to find alternative premises. It would be necessary for the employment of the six employees to be terminated and, as Mr Reid's only income is from the operation of the business carried on by the third respondent, that income would cease and he is concerned that the third respondent would then be unable to pay its debts and could be forced into liquidation.
12. Mr Reid would then be unable to meet the liabilities that he had undertaken on behalf of the first respondent and could be forced into bankruptcy.
13. The relevant principles in applications such as this are well settled. They are best explained by Sir Anthony Mason in Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 at 153: The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show: (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
14. The evidence satisfies me that there is a serious question to be tried. The crushing of concrete and of bricks and the chipping of timber appear to be outside the terms of the existing development consent. Moreover, the use of the property generally does not conform with the terms of the development consent in that the material does not appear to be stored in bins as shown on the plans to which the development consent relates. I find, at least at this stage of the proceedings, that the current use of the property includes an industrial use which is not the subject of any development consent.
15. The next question is whether there will be any irreparable harm or injury if interlocutory relief is not granted. Although the council has expressed some fears of the possibility of some environmental harm, those fears have not, on evidence at present, been realised. At its highest it can be said that there is a concern of a risk of some environmental harm but, the evidence does not satisfy me that any such harm has yet occurred.
16. On the question of the balance of convenience I note that the council has declined to offer the usual undertaking as to damages. That is a matter which must be taken into consideration. I have referred to the impact that the grant of an injunction would have upon the second and third respondents' business.
17. Moreover, in Silkstone Pty Limited v Devreal Capital Pty Limited and Ors (1990) 21 NSWLR 317, it was held by the Court of Appeal that on an application for an interlocutory injunction, the impact of the interlocutory order upon third persons is a factor to be considered where a court considers the balance of convenience.
18. I do not consider the impact on the business of the second and third respondents particularly highly. They either knew or ought to have known of the terms of the existing development consent before commencing the use of the land. The impact upon innocent third parties, namely the six employees, is however a matter to which I have regard. Finally I repeat what I have already noted, namely the absence of any actual environmental harm.
19. An overall consideration of these balance of convenience issues suggests to me that the application for interlocutory relief should be declined. If this were a claim for final relief I would have been inclined to grant the injunction sought by the council but postpone its operation for a time to enable the respondents to regularise what is being done either by conforming to the terms of the existing development consent or finding an alternative site. Since, however, this is a claim for interlocutory relief and since the balance of convenience is against the granting of a relief at this stage I simply decline to grant the council the relief that it presently seeks.
20. The formal orders are: 1. The council's application for interlocutory relief is dismissed. 2. The costs of the application shall be costs in the proceedings. 3. The exhibits may be returned. 4. The matter be re-listed before the Registrar for directions.
21. O'CONNOR: I was going to ask if it could be listed as soon as possible before the registrar. I was actually asked for it to be referred down there this afternoon. I was going to see whether we could try and get a date as soon as possible.
22. HIS HONOUR: You're unlikely to get a date unless all the evidence is on. I presume more evidence has to be filed.
23. O'CONNOR: I wonder if that's the case then if the matter could be listed. I've had discussions with my friend. We were looking at putting some further evidence on by the end of next week. If maybe the matter could be put over before the Registrar on the Tuesday following which is two weeks from today which is the 20th.
24. HIS HONOUR: Is the 20th suitable to everyone?
25. HARRIS: Yes that'll be suitable your Honour.
26. O'CONNOR: Could it be noted if possible that the matter should be given some priority.
27. HIS HONOUR: Why?
28. O'CONNOR: The concerns are still there your Honour. We'd like the matter listed as soon as possible because we do have those worries about those concerns which I note what the Court says. At this stage there's no evidence to suggest that that's happening but we would like it on as soon as possible because as the Court indicated--
29. HIS HONOUR: Mr O'Connor as you know when cases are ready they're given a hearing date. There's no delay here in the Court's Listing.
30. O'CONNOR: All right. If the matter could be put over to Tuesday the 20th then your Honour.
31. HIS HONOUR: The matter will be listed before the Registrar on 20 March 2001 for directions.

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