Carriage v Stockland

CITATION : Carriage v Stockland (Constructors) Pty Ltd and Ors [No 3] [2003] NSWLEC 86 APPLICANT Allan Carriage PARTIES : RESPONDENTS Stockland (Constructors) Pty Ltd and Ors FILE NUMBER(S) : 40863 of 2002 CORAM: Pain J KEY ISSUES: Injunctions and Declarations :- second application for interlocutory injunction - whether circumstances have changed since first application such as to warrant grant of injunction - discretionary considerations - whether serious question to be tried - irreparable damage - balance of convenience Environmental Planning and Assessment Act 1979 s 80(12) LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 145(2) National Parks and Wildlife Act 1974 s 90 Threatened Species Conservation Act 1995 CASES CITED: Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 DATES OF HEARING: 19, 21/02/2003 DATE OF JUDGMENT: 02/24/2003

APPLICANT Mr A Oshlack (agent) SOLICITORS N/A

FIRST RESPONDENT Mr T Hale SC with Mr S Brockwell (barrister) SOLICITORS Baker & McKenzie LEGAL REPRESENTATIVES: SECOND RESPONDENT Ms A Pearman (barrister) SOLICITORS National Parks and Wildlife Services

THIRD RESPONDENT submitting appearance

FOURTH RESPONDENT submitting appearance

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40863 of 2002

24 February 2003 ALLAN CARRIAGE Applicant v

STOCKLAND (CONSTRUCTORS) PTY LTD First Respondent DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFESERVICE OF NEW SOUTH WALES Second Respondent THE MINISTER FOR THE DEPARTMENT OF LAND AND WATER CONSERVATION Third Respondent WOLLONGONG CITY COUNCIL Fourth Respondent Judgment

1 The Applicant is seeking an interlocutory order in its Notice of Motion dated 3 February 2002. The urgent interlocutory order sought is an order: …restraining the First Respondent from carrying out any activity which relies on authorisation granted by consent 1427 granted by the Second Respondent to the First Respondent and in terms set out in paragraph 13 of the Amended Application Class 4 until further order. 2 For reasons that I will give shortly I have decided that I should not grant that application.

3 This order is in virtually identical terms to one of the interlocutory orders sought on a previous occasion by the Applicant and in relation to which I gave judgment on 20 November 2002 (see Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216). In that judgment I declined to grant relief in relation to the order sought. When a further interlocutory order is sought after the first application is unsuccessful the Applicant must show there is a relevant change of circumstance for the Court to consider in revisiting the same question on a subsequent interlocutory application such as this.

4 The Applicant was represented by Mr Oshlack, a non legally qualified agent. I note the Second Respondent was represented by a barrister at the hearing but did not bring forward any evidence and did not make any submissions to the Court at the hearing. The Third and Fourth Respondents have filed submitting appearances only and did not appear at the hearing.

5 The area of land at Sandon Point the subject of this application is part of Lot 235 in an area known generally as Stage 7 by some of the parties. This area has been cleared and filled in by the First Respondents, it claims pursuant to development consents granted in matters numbers 10026 to 10030 by the Land and Environment Court on 8 October 2001. The Applicant disputes this, hence this application. Evidence 6 The following evidence was relied on by the Applicant in addition to the evidence from the previous occasion: · an affidavit of Professor Webber sworn on 13 February 2003 in which Professor Webber stated that "obviously work outside the area defined in the subdivision plans is not authorised by the Land and Environment Court consents". · an affidavit of Dr Jamieson sworn 11 February 2003 which attached a number of documents to which I will refer in more detail later in this decision. · an affidavit of Mr Kennedy sworn 2 February 2003 in which he stated he undertook a site inspection of the relevant area in Lot 235 on 29 November 2002 at which time he discovered the stockpiled material contained many significant artefacts. · an affidavit of Mr Miller sworn 12 February 2003 in which he states the work undertaken on the land as a result of the removal of the SCESFC and that the filling activities have altered the flow regime on the land, which will in turn impact on the SCESFC. · an affidavit of Ms Walker sworn 3 February 2003 in which she stated, excavators, a truck and bulldozer were spreading soil over the land on 1 February 2003. · an affidavit of Mr McCarthy sworn 2 February, in which he states he saw a bulldozer spreading soil on the land on 29 January 2003.

7 Also tendered to the Court were some of the plans from the development consents issued by the Court in October 2001 (Exhibits J and H) and the Sandon Point Fauna and Flora Assessment Report (Exhibit 3). The Applicant's agent also relied on the oral evidence of Mr Hedge, the First Respondent's development manager, whom he called to give evidence. Applicant's submissions 8 The Applicant argued that condition 3 of permit number 1427 issued by the National Parks and Wildlife Service (NPWS) pursuant to s 90 of the National Parks and Wildlife Act 1974 requires that all necessary consents and approvals be obtained by the First Respondent in relation to that part of Lot 235 hatched on the plan attached to that permit. For the purpose of these proceedings the consents said to be required were development consent under the Environmental Planning and Assessment Act 1979 (the EP&A Act) and the necessary licence under Pt 6 of the Threatened Species Conservation Act 1995 in order to allow the removal and destruction of the endangered ecological community Sydney Coastal Estuary Swamp Forest Complex (SCESFC).

9 The Applicant argues the development consents in matter number 10026 - 10030 of 2001 granted by this Court and the subdivision plans therein do not include development consent for the activities conducted on part of Lot 235 known as stage 7. This area was marked out by Mr Hedge on Exhibit H in the course of his evidence. The Applicant submitted the First Respondent had not produced any evidence to show the development consents issued authorised the clearing and filling activities which have taken place there. The Applicant relied on the affidavit of Professor Webber, Emeritus Professor of Architecture and consultant on planning, urban design and architecture, in support of its case. The Applicant submitted on the basis of his findings the land was clearly outside the subdivision plans approved by the Court.

10 The Applicant's agent, Mr Oshlack, also relied on various documents attached to the affidavit of Dr Jamieson. The Applicant's agent submitted that there were doubts raised in some of the documents attached to Dr Jamieson's affidavit as to whether development consent had been issued for the filling works and also the clearing of the SCESFC on the relevant land. These documents included the correspondence between Mr Hedge and Andrew Schofield, Council officer, dated 9 September 2002, correspondence between MBK South Coast Pty Limited and Mr Schofield dated 27 August 2002, a fax from Mr Schofield to Martin Bremner of the NPWS dated 23 July 2002 and a fax from Mr Bremner to Mr Schofield dated 23 July 2002.

11 This material was all relied on as the basis for the submission that the necessary approvals were not obtained and therefore the permit number 1427 had been issued on a false premise.

12 Further, the Applicant's agent argued that as there had been no development consent issued over the land in question the First Respondent is unable to rely on the construction certificate as a valid consent for the works on the land. The Applicant's agent drew the Court's attention to cl 145(2) of the Environmental Planning and Assessment Regulation 2000, which states that a construction certificate cannot be issued unless it is consistent with a development consent. As there was no development consent issued the construction certificate cannot be relied on as it has no foundation in law.

13 Further, it was also argued the development on the land in question now requires ministerial consent. The Applicant relied on a letter dated 30 October 2002 from the Honourable Mr Andrew Refshauge MP to Mr Oxley, the General Manager of Wollongong City Council and an attached Gazettal notice which declared land on the attached map to that Gazettal notice to be State significant development. It is submitted the land included Lot 235 owned by the First Respondent. The Applicant's agent submitted that as there was no valid development consent in place prior to the ministerial consent being required work is continuing without necessary approvals.

14 The Applicant's agent submitted that the Sandon Point Flora and Fauna Assessment (Exhibit 3) showed there was no eight part test conducted for the land or submitted with the development application in relation to the SCESFC at the time the development application was assessed by the Land and Environment Court. The Applicant's agent also relied on Mr Miller's affidavit which suggested there was potential flooding impact which had not been properly assessed when heard before the Land and Environment Court in 2001 at the time development consent was granted.

15 The Applicant's agent submitted it had raised the evidentiary bar and had now proven there is a serious question to be tried. In terms of the balance of convenience, the Applicant's agent also submitted that excavation and fill work was done prior to the issue of the s 90 permit by the First Respondent last year. The affidavit of Professor Hiscock and his report relied on at the first interlocutory hearing before me was also relied on to show the Sandon Point area was a significant Aboriginal site containing many artefacts.

16 In relation to irreparable harm, the Applicant's agent pointed to the harm caused to the SCESFC community and the Aboriginal relics on the site which Professor Hiscock regarded as one of the most significant Aboriginal sites in Australia. It was further submitted that matters such as flooding had not been assessed before the Court when the development consent was issued. The Applicant's agent submitted that the public interest in the matter generally, because it is controversial, and the clear need to uphold the State's planning laws and stop development being conducted without consent are further reasons to act in the public interest.

17 In relation to balance of convenience, the Applicant's agent further argued that there had been no evidence brought by the First Respondent in relation to financial loss if an injunction was granted. Respondent's evidence/submissions 18 The First Respondent relied on the evidence from the previous occasion before this Court. Only one additional piece of evidence was tendered, being the report of Robinson GRC Consultant Pty Ltd dated 10 January 2003. This dealt with the flooding impact, if any, of the filling work undertaken on part of Lot 235.

19 The First Respondent's counsel relied on Mr Hedge's oral evidence that 98 per cent of the work over the land in question is complete. The effect of the injunction would therefore be to restrain the First Respondent from tilling, seeding, undertaking grass regeneration and remediation of the SCESFC area. Mr Hedge testified there was no filling now to be completed in the SCESFC area. Clearly, on the balance of convenience there is nothing therefore to justify the Court granting the order sought.

20 Further, when the order sought in par 1 is compared with the previous order sought by the Applicant, when relief was refused, it is clear that they are almost identical orders and it is necessary for the Court to consider what additional evidence has been presented to make the Court change its mind.

21 The First Respondent submitted the Applicant failed to understand the development consent and the planning regime. It was the evidence of Mr Hedge that the development consents relate to the entirety of the First Respondent's land that is referred to in the Court consent in matter numbers 10026 - 10030 of 2001. The last plan under tab one in Exhibit 1 shows the development consent relates to a series of title boundaries. This includes the land in question and the other subdivision stages. Mr Hedge also referred to the works permissible under numerous development consent conditions notably condition 111 which specifically relate to the riparian zone in Lot 235.

22 The construction certificate and plans become part of the development consent under s 80(12) of the EP&A Act so that the development consent now includes the construction certificate. The Applicant must accept the validity of the construction certificate because it was not entitled to challenge it in this interlocutory application. The construction certificate permits fill in the area, the development consent therefore also permits fill in the area in question.

23 In relation to the evidence relied on by the Applicant, the First Respondent made the following submissions. The affidavits of Mr McCarthy and Ms Walker do no more than confirm that work is being undertaken. This has never been denied by the First Respondent and is undertaken pursuant to the existing consent. The affidavit of Professor Webber gives an opinion but does not assist because it is simply talking about general concepts and provides no new evidence from which the Court can obtain assistance. Mr Kennedy's affidavit confirms the land contains artefacts which is a matter that is already known to all the parties. In relation to Mr Miller's affidavit evidence, the basis on which he made his assumptions, as a botanist giving evidence outside his expertise on hydrological matters, in relation to harm from flooding was never made clear by the Applicant's agent. Furthermore, the Robinson report tendered by the First Respondent establishes there was no flooding impact from the fill on the area in question.

24 The First Respondent also assumed there would be an undertaking as to damages offered by the Applicant but submitted it would be worthless due to the Applicant's lack of financial means and this was not disputed. Essentially, the First Respondent concluded by saying there was no evidence before the Court that would cause it to change its mind. Finding 25 Applying the well known principles enunciated in Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 particularly at p 153 to 154 in relation to the granting of interlocutory relief there are three or four key areas that the Court must consider. The first of these is, is there a serious question to be tried or that there is 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 Applicants would be entitled to relief.

26 I indicated in my previous judgment in November 2002 that as presented to me on that occasion the Applicant did not appear to have a serious question to be tried. The Applicant's case has certainly been better articulated at this second hearing and I think its legal arguments may be stronger than I thought on the previous occasion but I do not think the test referred to in Castlemaine Tooheys is satisfied on this aspect. I note the Applicant's agent has sought to rely on the affidavit of Professor Webber to support its construction of the development consents. His evidence is general in nature although he states that he has referred to the relevant development consent documents. I do not find it very persuasive given that it does not address the detail of particular consents here in dispute.

27 I should also note there were documents attached to the affidavit of Dr Jamieson which were obtained on informal discovery from the Council's files which suggested that in July, August and September last year there were issues raised by Wollongong City Council officers and NPWS officers about the clearing of threatened species habitat and the filling activity on the relevant area of Lot 235. This material is not evidence of the matters raised in it, particularly in the absence of any further evidence from Wollongong City Council, the Fourth Respondent, or the Director General of National Parks and Wildlife, the Second Respondent.

28 I should also note that the fact the land in question may fall under the recent ministerial declaration of State significant development does not directly affect the legal issue presently before me. Consequently, the new material relied on by the Applicant's agent in this regard does not advance the Applicant's legal argument to any great extent in my view.

29 The second aspect I must consider is whether the Applicant will suffer irreparable harm for which damages will not be adequate compensation. Essentially, no new material has been presented to the Court in relation to the issues of irreparable harm to Aboriginal relics relied on by the Applicant at the first interlocutory hearing. The evidence relied on is referred to at par 28 and 29 of my previous judgment and I adopt my findings there about the nature of the material and Professor Hiscock's report.

30 Thirdly, does the balance of convenience favour the granting of an injunction? One of the reasons I gave for not making the first order sought in November 2002 was the delay in applying for the interlocutory order given the evidence adduced as to when work was done. I refer to that at par 13 of my judgment dated 20 November 2002. It seems to me that that finding still applies. In addition there is oral evidence given by Mr Hedge, who is the First Respondent's project manager, that the work in the part of Lot 235 in issue is now 98 per cent complete.

31 The other matters raised by the Applicant's agent arguing the matter is public interest because it is controversial, does not apply on the basis of case law in this Court. The Applicant must demonstrate more than mere controversy to make good a claim of public interest. It should otherwise be noted there are clearly are other issues asserted here in relation to the protection of Aboriginal relics which are definitely important in terms of public interest matters.

32 Lastly, I note the issue of the undertakings as to damages. I do not think it was formally offered by the Applicant, but it was assumed, and not denied, that there would be an offer of such an undertaking. The Applicant has not disputed the First Respondent's submission that given his very limited means it is likely that such an undertaking could not be met if called upon.

33 I otherwise accept the First Respondent's counsel's submissions that there is not any new evidence adduced since the first interlocutory application hearing which would warrant a change of view on my part. I consider in all these circumstances the balance of convenience does not justify the making of an interlocutory order such as the one sought in this matter. Accordingly, Prayer 1of the Applicant's Notice of Motion dated 3 February is refused.

Orders The Court orders that:

1. Prayer 1 in the Applicant's Notice of Motion dated 3 February 2003 is refused.

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