Central Coast Council v 40 Gindurra Road Somersby Pty Ltd

Land and Environment Court (NSW)|2018-05-21|Before: Molesworth AJ, Moore J

Judgment

Central Coast Council (Applicant Council) seeks an interlocutory injunction against 40 Gindurra Road Somersby Pty Ltd (Respondent) to restrain the Respondent from continuing to fill the land at Lots 1-7 SP 96758 and the common property of SP 96758, known as 40 Gindurra Road, Somersby (Land).
I have decided that there is a legitimate issue, indeed a number of legitimate issues, to be tried with respect to the substantive relief sought by the Applicant Council in the Class 4 proceedings and that the balance of convenience favours restraining the Respondent from importing further fill material to the Land. I am satisfied that the Applicant Council has a seriously arguable case, based on the evidence and submissions advanced by it on this interlocutory application.
Unlike the situation with the hearing of many interlocutory applications before this Court, the hearing did not proceed ex parte. In this instance the Respondent was represented at the hearing by Mr Richard Bernard Clark, the sole director, company secretary and shareholder of the Respondent. Mr Clark's legal status was confirmed by the first document contained in a bundle of evidence tendered at the hearing by the Applicant Council and marked "D" being an "ASIC Current Organisation Extract" dated 12 April 2018. In the course of his submissions, Mr Clark produced and then relied upon an 83 page document titled "Reply" that was a composite of part submissions and part copy documents upon which he relied. Mr Clark's Reply was marked "1" for identification (Respondent's Reply).
I accept that on the hearing of an interlocutory application the appropriate course to adopt is that which Moore J did in Central Coast v 422 Pacific Highway Wyong Pty Ltd [2018] NSWLEC 38, a case coincidently involving a related company to the Respondent before me and involving the same Mr Clark as the sole director, company secretary and shareholder. At [18] His Honour said: "It is not appropriate for me to set out, in detail, the various bases upon which the Council proposes that these conclusions should be drawn lest I appear to be prejudging any of the matters that would potentially be in contest in any substantive hearing in the proceedings".

Factual background

The Respondent is the owner of Lots 1-7 of SP 96758 and was the owner of the predecessor title of the Land. The Land is within an area identified as the Somersby Business Park in the Gosford Local Environmental Plan 2014 (Gosford LEP).
The Land is adjoined on its western and southern boundaries by public reserves owned by the Applicant Council and known as, respectively, 32 and 34 Gindurra Road, Somersby. Each reserve contains an unnamed creek, both of which are tributaries of Piles Creek. These public reserves and part of the Land are identified in the Gosford LEP as 'Ecologically Significant and Aboriginal Heritage Lands'.

Approvals history

The table which follows, for convenience of reference, sets out the approvals history of the Land. The references in the table are to the location of the documents in those folders of evidence, marked Exhibit "A" to the affidavit of Mr Stephen Ryan sworn 16 May 2018, Subdivision consent 19 September 2005 Development consent DA25533/2004 for 8 lot industrial subdivision granted in relation to a parent lot which includes the Land (Subdivision Consent). (SR2 tabs 1 and 2) 17 August 2006 Application for modification of the Subdivision Consent 19 September 2006 Council grants partial consent to the requested modification (SR2, tabs 4 and 5) 27 October 2008 Second application for modification of the Subdivision Consent (SR2, Tab 6) 15 December 2008 Council grants approval to the modification applied for on 27 October 2008 (SR2 Tab 7) 5 February 2009 Third application for modification of the Subdivision Consent (SR2 tab 8) 4 March 2009 Council grants approval to the modification applied for on 5 February 2009 (SR2 Tab 7) Landfill consent 7 May 2007 Development consent DA 32465/2007 for Landfilling granted by Council (Landfill Consent) (SR3 Tabs 1-3) 10 May 2007 Application for modification of Landfill Consent (SR3 Tab 4) 22 November 2007 Council grants approval to the modification applied for on 10 May 2007 (SR3 Tab 5) 19 April 2011 Second application for modification of Landfill Consent (SR3 Tab 6) 14 June 2011 Council grants approval for modification applied for on 19 April 2011, noting that it is a minor modification and substantially the same development. Replacement condition 6 and addition of condition 16 (SR3 Tab 7) 10 November 2011 Third application for modification of Landfill Consent (SR3 Tab 8) 26 April 2012 Council grants approval for modification applied for on 10 November 2011, replaces conditions 1, 12 and 16 (SR 3 Tab 9) Complying Development Certificate - Masterplan 21 December 2015 Complying Development Certificate CDC14-0912 issued by Mr William Dagger for "Masterplan for 89 warehouse buildings + phase 1 development: industrial building for resource recovery site" (SR 4 Tab 1) 18 November 2016 Interim Occupation Certificate IOC14-0912 issued for "Phase 1 Development: Industrial Building for resource recovery use" (SR4 Tab 2) 20 March 2017 Modified Complying Development Certificate CDC14-0912-3 issued by Mr William Dagger for "Modified master plan for 89 units industrial warehouse building development (adjusts warehouse generic construction & engineering + raises permissible envelope heights to 9800mm and undertakes minor fill to grade adjustments of previous land fill for the site- all within CDC limits)". Annexed to that certificate (at folio 196) was a diagram of the Land, entirely- save the far south west corner- shaded in yellow, which the key indicated "Denotes proposed fill area. Lift up to 1.95m" (SR 4 Tab 3) 26 September 2017 Complying development certificate CDC14-0912-4 issued by Mr William Dagger for "Phase 2 Masterplan: Construction upon future strata plan- lot 102 warehouse units 11 to 20 "

Complying Development Certificate - Strata subdivision 6 July 2016 Complying Development Certificate FS041CDC021 issued by Mr Phillip Hayward for strata subdivision (SR4 Tab 5)

Subdivision consents

On 19 September 2005, the Applicant Council granted development consent for an 8 lot industrial subdivision of a parent lot which includes the present Land (Subdivision Consent). The Subdivision Consent was modified a number of times, including on 15 December 2008, to permit staging of the subdivision. The result of this modification was that, pending the later development of the approved 7 lots as Stage 2, they were contained in a residue lot, Lot 10023.

Landfill consent

On 7 May 2007, Council granted development consent for filling of the approved 7 lots, to specified levels for each lot (Landfill Consent). This consent was modified a number of times, including on 26 April 2012, altering the specified levels of each lot.
Common to both the Subdivision and Landfill Consents, and unchanged by any modifications, was a requirement to provide a 10m wide conservation buffer to the western and southern boundaries of (what was to later become) the Land, adjoining Council's public reserves, and a requirement to provide erosion and sediment controls.

Masterplan Complying Development Certificate

On 21 December 2015, a private certifier, Mr William A Dagger, issued a complying development certificate that purported to approve development of "Master Plan - For 89 Factory Warehouse Units Plus Phase 1 Development - Industrial Building for Resource Recovery Use" (Masterplan CDC).
This Masterplan CDC has been subsequently modified, including on 20 March 2017, which was expressed as approving bulk fill on the approved 7 lots, by "up to 1.95m". Despite all previous consents and their modifications retaining the buffer zone, this private certifier issued Masterplan CDC does not refer to buffer zones at the western and southern (or indeed, any) boundaries of the Land.

Council investigations

By early 2017, the Applicant Council submitted, it had become concerned about filling being carried out on the Land. It issued a notice of intention to the Respondent and, on 21 April 2017, an order under s 121B of the Environmental Planning and Assessment Act 1979 (EPA Act).
On 5 December 2017, the Applicant Council gave notice of an intended order under s 121B of the EPA Act and an intended prevention notice under the Protection of the Environment Operations Act 1997 (PEO Act). No representations were made in response to each notice, and so an order and a prevention notice were given in February 2018. On 1 March 2018, the Respondent, by its solicitor, invited Council to revoke the order and notice on the basis of what were said to be multiple deficiencies affecting the validity of each instrument. On 6 March 2018, Council revoked the order and the prevention notice.
Throughout 2017 the Applicant Council engaged in correspondence with the Respondent's director, Mr Richard Clark, and the private certifier, Mr Dagger, who issued the Masterplan CDC. Both the Mr Clark and the certifier asserted that the Respondent had a lawful basis for the filling of the Land.
The Applicant Council carried out various inspections of the Land during 2017 and 2018, including : 1. by Council officer Tansy Collyer on 10 November 2017, 23 March and 3 April 2018; 2. by Council officer Stephen Ryan on 2 February, 23 March and 24 April 2018; 3. by Council officer Leah Hitchenson on 3 April 2018.

The interlocutory application

On 18 May 2018, the Applicant Council filed a Class 4 Summons seeking relief against the Respondent, including, at [6], an interlocutory injunction, with the balance of orders and declarations to be considered at the substantive hearing in the proceedings. The interlocutory injunction sought was in the following terms: An interlocutory order that the Respondent, by itself, its servants and agents, cease the importation of fill material to the Land immediately upon the making of the order, until further order.
The Applicant Council read three affidavits on the interlocutory application: 1. Affidavit of Mr Stephen Ryan sworn 16 May 2018; 2. Affidavit of Ms Leah Hitchenson affirmed 16 May 2018; and 3. Affidavit of Ms Tansy Collyer affirmed 16 May 2018;
Each of these affidavits exhibited, inter alia, photographic evidence, including stills from the footage taken by drone and exhibited to the affidavit of Ms Hitchenson, showing that extensive filling of the Land has occurred, with quantities of fill piled on site in mounds that - on any fair viewing - exceed 1.95m by a significant margin (1.95m being the height specified in the Masterplan CDC). The Applicant Council submitted that this photographic evidence also documented fill material encroaching into the public reserves and the creeks therein, and that such sediment control measures that were in place were inadequate and were being breached by sediment and other fill material.
The Applicant Council handed up an additional bundle of documents, exhibit D, which included a company search of the Respondent; Strata Plan 96758; Historical titles search for Lot 1002 DP 1138136 and transfer AG114500R; extracts from the Gosford LEP; an approved plan of subdivision - the Subdivision Consent; and an approved plan for landfilling - the Landfill Consent. The Court noted that by transfer AG114500R dated 28 February 2011, recorded on 11 March 2011, the Respondent became the registered proprietor of Torrens Title, being the Land in Folio 1002/1138136.

Applicant Council's submissions

Relying on the principles applicable to the granting of interlocutory injunctions as summarised in in Blacktown City Council v The Penetrators Pty Ltd [2013] NSWLEC 169 at [25]-[26], [33]-[35], the Applicant Council argued that there is a serious question to be tried in this matter. It contended that the photographic evidence demonstrated that extensive filling of the Land has occurred, and that that filling is far in excess of levels authorised by the Landfill Consent or Masterplan CDC.
For the purposes of the interlocutory application, proceeding (for convenience) on the basis that the relevant consents are in force and valid (but without taking a settled position on validity), the Applicant Council contended that the carrying out of such filling is in breach of both the Landfill Consent and the Masterplan CDC. Additionally, it submitted that neither instrument authorised the use of the Land generally for waste disposal or waste recovery purposes.
The Applicant Council submitted that the evidence provided by Mr Ryan, Ms Collyer and Ms Hitchenson about fill and sediment moving from the Land into the creeks on the two public reserves also demonstrates there is a serious question to be tried as to a contravention of the PEO Act (in terms of water pollution).
The Applicant Council, in its submissions, contended that the balance of convenience favoured the granting of an interlocutory injunction, for the following reasons: The apparent strength of Council's cases means the risk of doing an injustice to the respondent is lower than might otherwise be the case; The degree of filling is substantial - the heights of at least some stockpiles appear to exceed 10m or more; Fill has encroached into the adjacent public reserves; The potential for adverse environmental impacts from the filling and movement of the filling is real - trees and vegetation in the adjacent public reserves have been smothered with fill and sediment, and sediment has entered the creeks; The public reserves are identified specifically as being ecologically significant by the GLEP. This is so because it provides habitat to a number of threatened species of flora and fauna. The reserves are also approximately 100m upstream of an endangered ecological community, Sandstone Hanging Swamp that is sensitive to water pollution. Both the Subdivision and Landfill Consents required erosion and sediment controls in accordance with Council's Code. The controls that do exist are plainly inadequate to prevent sediment moving into the public reserves and into the creeks. The risks of environmental harm to vegetation, to potential habitat, to the creeks, and to the downstream endangered ecological community are all powerful factors favouring the grant of an injunction. The respondent has been given significant time and opportunities to address the issue of unlawful fill.
The Applicant Council offered no undertaking as to damages, noting that the proceedings were "brought in the public interest to uphold the integrity of the environmental law and to avoid or mitigate harm (or further harm) to the environment". In addition to r 4.2(3) of the Land and Environment Court Rules 2007, it cited Willoughby Council v Sahade [2000] NSWLEC 38 at [24] as authority for the proposition that an undertaking may not be required in cases brought by public authorities in the public interest.

Respondent's submissions

The Respondent resisted the Applicant Council's application for interlocutory injunctive relief and the substance of the Summons, raising a multiplicity of contentions with respect to both. For present purposes, it is not necessary to deal with those matters in detail. Rather I briefly set out below, where relevant, the Respondent's key arguments as they relate to the application before me.
First, the Respondent questioned the Applicant Council's evidence as to the location of the boundaries of the Land. The Respondent contended that the use of words such as "approximate" and "about" in relation to survey locations exposed a weakness in the Applicant Council's substantive case and weighed against the balance of convenience as to whether an interlocutory injunction ought to be granted.
Secondly, the Respondent queried the validity of the Subdivision Consent, arguing that condition 12 (which became condition 11 following the third application for modification of the Subdivision Consent) - requiring a construction certificate for subdivision works to be granted prior to the commencement of any work - had not been met, but that nonetheless the subdivision had been approved and a subdivision certificate was granted in contravention of the former s 109J (now s 6.15) of the EPA Act. The Respondent argued that the consent was therefore not valid and could not be enforced (including conditions requiring the creation of a 10m buffer).
Thirdly, the Respondent asserted that the Masterplan CDC authorised fill material being placed to the boundaries of the Land (that is, without the 10m buffer provided for in the Subdivision Consent and Landfill Consent). The authorisation provided by the Masterplan CDC under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP), the Respondent asserted, prevailed over the Subdivision Consent and Landfill Consent granted pursuant to the EPA Act.
The Respondent further contended, with respect to the Masterplan CDC, that the Applicant Council could not challenge its validity pursuant to s 101 (now s 4.31) of the EPA Act because the three month period within which such a challenge is available has expired.
As to the stockpiled material on site, the Respondent argued that its placement without specific consent is authorised by the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). Clause 94 of the Infrastructure SEPP provides (relevantly): 94 Development permitted without consent - general (1) Development for the purpose of a road or road infrastructure facilities may be carried out by or on behalf of a public authority (emphasis added) without consent on any land. However, such development may be carried out without consent on land reserved under the National Parks and Wildlife Act 1974 only if the development: (a) is authorised by or under the National Parks and Wildlife Act 1974, or (b) is, or is the subject of, an existing interest within the meaning of section 39 of that Act, or (c) is on land to which that Act applies over which an easement has been granted and is not contrary to the terms or nature of the easement. (2) In this clause and clause 96, a reference to development for the purpose of road infrastructure facilities includes a reference to development for any of the following purposes if the development is in connection with a road or road infrastructure facilities: (a) construction works (whether or not in a heritage conservation area), including: (i) temporary buildings or facilities for the management of construction, if they are in or adjacent to a road corridor, and (ii) creation of embankments, and (iii) extraction of extractive materials and stockpiling of those materials, if: (A) the extraction and stockpiling are ancillary to road construction, or (B) the materials are used solely for road construction and the extraction and stockpiling take place in or adjacent to a road corridor, and (iv) temporary crushing or concrete batching plants, if they are used solely for road construction and are on or adjacent to a road corridor, and (v) temporary roads that are used solely during road construction, (b) emergency works or routine maintenance works, Note. See clause 8(4) regarding emergency works and routine maintenance works on land to which clauses 10 and 11 of State Environmental Planning Policy (Coastal Management) 2018 apply. (c) alterations or additions to an existing road (such as widening, duplication or reconstruction of lanes, changing the alignment or strengthening of the road), (d) environmental management works, if the works are in or adjacent to a road corridor.
With respect to the balance of convenience, the Respondent argued that an interlocutory injunction would have a substantial impact, and result in hardship to the Respondent. Although no evidence as to the scope of that hardship was before the Court, the Respondent in oral submissions said that an interlocutory injunction would have a "massive impact", including requiring that the Respondent forgo arrangements made to take more fill and therefore to lay off contractors who were on site ready to proceed. This, the Respondent argued, would have an impact on the local economy. The Respondent in its response document, the Reply, argued that further matters to be taken into account by the Court were the "contracted damages [to the Respondent] that will occur if the injunction proceeds and the public interest in completing the NorthConnex project as providing a solution for pavement material to return to the NorthConnex" (Respondent's Reply, p 10).
Further, the Respondent argued that the "length of time that the site has been operating as a resource recovery site without any harm to the environment" (this time period was not specified, however presumably did not refer to a point in time earlier than December 2015 when the Masterplan CDC was granted), weighed against the grant of an interlocutory injunction.
The Respondent also submitted that the doctrine of laches should apply in this instance, that there had been an unreasonable delay on the part of the Applicant Council in bringing the proceedings, given the Applicant Council had notice of the Masterplan CDC from 21 December 2015.
In final oral submissions, the Respondent sought two weeks within which to obtain an independent survey of the land and to construct batters to the fill currently on site. During the Court hearing there was a brief exchange whether the creation of batters would in the Respondent's view require heavy earthmoving equipment to enter the environmentally sensitive public reserves in order to push back cascading fill material that may, on a prima facie assessment of the photographic evidence, have encroached, as alleged by the Applicant Council, into the reserves.
It ought to be noted that the Respondent raised an objection to the use of drone footage or, presumably, stills from the drone footage, on the basis that such images may not have been legally obtained in compliance with the regulatory regime applicable to drones, and therefore should be inadmissible. In an exchange with Mr Clark, the Court queried the veracity of the objection, indicating that even on a superficial analysis it would appear that many of the drone shots were taken outside the Land, most probably from a vantage point over the Council's own public reserves, looking at times towards the stockpiles on the Land. This objection was not further pressed and no evidence was provided to substantiate the suggestion the evidence may be inadmissible.

Informal First Cross-Claim and Cross-Summons

The Respondent handed up, but did not seek to formally file, a document headed "First Cross-Claim and Cross-Summons". The Court indicated that this document was not the subject of the interlocutory hearing and that it, or something like it, could be filed with the Court at a later stage and thereafter be considered at the substantive hearing in the proceedings. However, the Court forewarned that a number of complications might arise with the current state of the document due to lack of clarity, relevance and particularisation, in order to meet the requisite standards for legal pleadings. These issues would need to be rectified, irrespective of what stance the Applicant Council might take with respect to such a document.

Matters demonstrating a serious issue to be tried

I am satisfied that there are a number of serious questions to be tried, based on the Applicant Council's evidence and submissions. The Respondent's Reply gives rise to additional serious questions. In summary, the following questions arise, however the Court does not consider the list is closed, given the Respondent's Reply and its draft "Cross-Claim Cross-Summons" referred to above. 1. First, the inter-relationship, or absence thereof, between the Subdivision Consent, the Landfill Consent, the Masterplan CDC and the Complying Development Certificate - Strata subdivision, gives rise to serious issues of inconsistency, leaving, potentially, at-large, the identification and status of development controls applicable to the Land. 2. Secondly, related to the first serious question, is the extent, if any, to which conditions of development approval which were evidently intended to ensure compliance with provisions and objectives of the Gosford LEP, such as ensuring that development does not have an adverse impact on the protection of ecologically significant land and land with Aboriginal heritage characteristics within Somersby Business Park, specifically the condition requiring the retention of a 10m buffer adjoining the two Council reserves, can subsequently be overridden by complying development certificates issued by a private certifier. 3. Thirdly, there is a further serious question whether the stockpiling of waste recovery material has a relationship with the allegedly authorised filling of areas of the Land to 1.95m or alternatively whether a distinct different land use and development of the Land is occurring which could be more properly characterised as waste disposal and/or resource recovery - which has led to the creation of hillocks of material which may, on the evidence, be 10m high. If waste recovery is the correct characterisation of the land use, then it may lack the requisite development consent. 4. Fourthly, there is a further serious question raised by the Respondent, whether the waste recovery/recycling, as being carried out on the Land, is exempt from the usual consent requirements by virtue of the Infrastructure SEPP. A related question, if the answer is yes to the first question, is whether such SEPP- consistent activity can occur without regard to, or compliance with, provisions in the Gosford LEP which are, for instance, directed at protecting the ecological significance of the adjoining public reserves. 5. Fifthly, there is the serious question raised by the Applicant Council, foreshadowed in [24] above, relating to a potential contravention of the PEO Act.

The balance of convenience

The Court must consider "whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted": Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 at 623. Also of relevance is Blacktown City Council v The Penetrators Pty Ltd [2013] NSWLEC 169, relied on by the Applicant Council. I have considered the submissions of the Respondent referring to commercial consequences, potential social consequences relating to less commercial activity and employment and impacts upon public road construction projects. I am not persuaded that any of these considerations have been established with any certainty nor represent hardship sufficient to overcome the public interest in upholding the rule of law - which would be the case should the Applicant Council's case ultimately be established.
"The greater the hardship to the defendant, the greater the reluctance of the Court to grant the injunction. However, if an equal or greater hardship would be caused to the plaintiff by refusing an injunction, that reluctance will be dissipated" Belongil Action Group Association Incorporated v Byron Bay Railroad Company Limited [2017] NSWLEC 187 per Preston CJ at [18] citing Tegra (NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA 1; [2007] NSWLEC 806 at [13]. Considering those principles, in this case the environmental damage that may be established in the substantive hearing may represent a blatant and serious breach of the law.
In determining the application before me, I am of the opinion that the Applicant Council's request for interlocutory relief should be granted and that, specifically, it is in the public interest that the Court should grant it. The Court has concluded that there are a range of serious questions that need to be determined and that until such determination occurs the Respondent should be restrained in accordance with the interlocutory order sought. In understanding the principles which are pertinent to the consideration of the public interest, I adopt the following passage from the judgment of Preston CJ in Tegra (NSW) Pty Limited v Gundagai Shire Council: 53 The court may consider the public interest. The public interest is multi-faceted and may be a factor in favour or against the grant of an interlocutory injunction. 54 There is the public interest in the proper enforcement of public welfare statutes, such as planning and environment laws. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 - 340, Kirby P stated that a public interest exists "in the orderly development and use of the environment" and that there is purpose in "upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which is the purpose of the orderly enforcement of environmental law to avoid": see also Ellison v Warringah Shire Council (1985) 55 LGRA 1 at 13; Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 161; South Sydney City Council v Rennoc Australia Pty Ltd [2003] NSWLEC 45 (29 November 2002) at [12]; and Reg v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603 at 673. 55 There is also the public interest in the reliable and predictable public administration of the law: Ellison v Warringah Shire Council (1985) 55 LGRA 1 at 13; Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 161-162; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGERA 436 at 438. 56 There is the public interest in protecting the environment and components of it, and cultural heritage: Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 117 (16 July 2002) at [39]; Williams v Homestake Australia Ltd (2002) 119 LGERA 55 at 66 [53]; Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 216 (20 November 2002) at [33]; Williams v Director General of National Parks and Wildlife Service [2002] NSWLEC 235 (6 December 2002) at [68]-[73], [77], [98].
Although on an interlocutory application the Court does not need to complete an analysis akin to that which would be required for the substantive hearing in the proceedings, the Court should be satisfied that there is at least a prima facie case on the evidence that gives rise to one or more serious questions to be heard.
With respect to the possibility of environmental damage occurring by reason of the Respondent's actions, the Court considers the following evidence to be relevant. Ms Hitchenson, Senior Environmental Officer - Environmental Protection, with the Applicant Council observed that: "In my opinion the activities conducted at 40 Gindurra Road Somersby have caused water pollution incidents, and are likely to cause further water pollution incidents. The water pollution incidents have negatively impacted the two unnamed creeks, causing sediment to be deposited within the creeks and increasing turbidity of the water within the creeks. A portion of one unnamed creek has been completely filled in with sediment" (Affidavit of Leah Hitchenson, [79]). Further, during the course of the inspection dated 3 April 2018, Ms Collyer in her affidavit at [35] observed: a. There appeared to be more fill evident at the north of the premises than during the inspection on the 23 March 2018. b. Fill from the premises was observed within the creek beds in areas on the south and west of the premises. c. Sediment originating from the premises was observed in the creek beds in areas on the south and west of the premises. These creeks are tributaries of Piles Creek. This observation was determined based on the different colour ofthe soil in the reserve (dark brown loamy soil or stone creek bed) and from the premises (cream to red coloured sandy/clay soil and rocks). There appeared to be more sediment in the creek beds than observed during the inspection on the 23 March 2018. d. Rill erosion on slopes of fill on the south and west boundary of the premises. This observation was based on channels cut out of the soil on fill slopes and fine sediment movement downslope. Sediment appeared to have moved further downslope and closer to the unnamed creek on the west boundary of the premises since the inspection conducted on the 23 March 2018. e. A stockpile of recycled glass on the west boundary of the premises. Fragments of glass appeared to have travelled downhill from the stockpiles and in close proximity to the unnamed creek which is a tributary of Piles Creek. f. Numerous trees on the south and west of the premises had fallen over and some of them were dead. The trees that had fallen over had fill from the premises covering their bases or had damaged trunks. g. Areas of the unnamed creek located on the west of the premises had turbid water. h. The slopes of the fill onsite were steep and the soil was exposed. i. No sediment basin or catch drains were observed onsite. j. Fill from the premises had passed the tree line in areas on the south and west boundary of the premises. k. …..
The Court also notes that these deponents have relevant professional experience and qualifications which entitle them to form and express opinions regarding the environmental quality of these two reserves and the streams therein. In the exercise of discretion it is relevant to take into account the attitude of the Respondent. Forming a view regarding the attitude of the Respondent goes to the question whether assurances of future compliant or responsible conduct can be anticipated with confidence or whether, on the contrary, conduct which is unacceptable, potentially contrary to law, is a more likely scenario. This anticipated context is relevant to the exercise of discretion, whether or not to grant a restraining injunction. If the Court has confidence in assurances of future compliant or responsible conduct, that could well be a persuasive consideration that obviates the need for an injunction.
With the Respondent being a company, one must look to the officers and directors to form an attitudinal perspective. In this case that analysis is made easier by the fact that Mr Richard Clark is the sole director, sole company officer and sole shareholder. In essence, Mr Richard Clark is the Respondent company. So the attitudes and approach of Mr Clark will be indicative of the attitude and approach of the Respondent company - effectively there is no one else involved.
The context to consider, which is relevant to the Respondent's attitude, is the status of the reserves. Apart from being bound to apply the provisions of the LEP, the Court accepts that the two abutting reserves to the Land were designated "Ecologically Significant and Aboriginal Heritage Lands" in the Gosford LEP, that they were so designated for sound reasons. As said earlier the Court was assisted in understanding the appearance and integrity of these two reserves, in particular the creek environments, by photographs which were annexed to the affidavits of Stephen Ryan and Leah Hitchenson both affirmed on 16 May 2018. In particular I refer to the photographs 14-17 which appear under tab 4 in Exhibit SR-1 and folios 365, 366 and 381 in Exhibit LH-1.
In the course of the hearing Mr Clark, on behalf of the Respondent, interrupted Mr To's submissions and challenged his reliance upon the above evidence, in particular challenging the descriptions given of the creeks. He indicated that he objected to the statements being made regarding the status and nature of the creeks. He asserted that the creeks were nothing other than "ephemeral drainage lines". On the first occasion of Mr Clark objecting, I noted his objection but indicated that a determination as to whether his opinion or the assessment of the Applicant Council's experts was correct would be a matter for consideration at the substantive hearing of the proceedings.
On the second occasion that Mr Clark objected to references to the creeks, the Court disallowed his objection, allowing Mr To to proceed. I also informed Mr Clark that I was now concerned that Mr Clark was so insistent on referring to the creeks in the reserves in such disparaging terms. I advised that the Court was bound by "the rule book", as indeed was Mr Clark, whether or not he liked it. The Court indicated that the parameters within which these proceedings are being heard are the planning controls that apply to the Land and its locale. In this instance, the reserves and part of the Land are identified in the Gosford LEP as 'Ecologically Significant and Aboriginal Heritage Lands' and contain creeks, not "ephemeral drainage lines". Mr Clark has to accept that in the context of planning and environmental considerations in this case, the Gosford LEP is the relevant "rule book" and as a consequence there are relevant provisions in the LEP which confirm that assessment of significance and then set down controls which allow or disallow certain activity.
The Court has subsequently confirmed that in cl 7.4 of the Gosford LEP, which is headed "Development in Somersby Business Park", the objectives of the clause include, inter alia, "(b) to protect ecologically significant land and land with Aboriginal heritage characteristics in Somersby Business Park". Clause 7.4(4) confirms that in deciding whether to grant development consent the consent authority must consider, inter alia, that future development "will not have an adverse impact on the protection of the ecological and Aboriginal heritage characteristics of the locality".
The Court considers Mr Clark's attitude to the creeks and the two public reserves within which they are situated is concerning, undermining the confidence that might otherwise have been placed upon his assurances that there would be rectification of any issues with respect to the reserves if, upon clarification by independent survey, it is shown that environmental damage has occurred or is likely to occur. Despite being in full knowledge that two public reserves adjoin his company's Land, despite knowing that there is environmental sensitivity with respect to those reserves (just one indicator of which, amongst others, being the requirement for a 10m wide buffer zone abutting those reserves having been prescribed in the first development consents - such consents "coming with the land", which Land the Respondent acquired), to press his view in his objections to the Council's case in terms disparaging the status of the creeks within the reserves was indicative of an approach which gives the Court no encouragement to exercise its discretion in the Respondent's favour.
This attitude becomes relevant when considering Mr Clark's submission that there was no need for an injunction to restrain further fill being brought onto the Land and that he should be given a fortnight to have a survey carried out to determine whether or not the fill material has actually escaped from the Respondent's Land and has cascaded (as the Court described it) into the adjoining reserves. If Mr Clark demonstrated with such alacrity his keenness to disparage the official designation of the reserves as ecologically significant and thereby, by implication, concurrently questioned the evidence of environmentally qualified Council deponents, the Court rhetorically asks "how can the Court have any confidence that the Respondent will not press ahead as it has done to date (as the Council submits), without being restrained by an appropriate injunction?"
As for asserting that instead of granting injunctive relief to the Applicant Council, it would be reasonable to allow time for the Respondent to have an independent surveyor survey the boundaries of the Land so as to clarify whether or not the fill material has escaped beyond the boundaries of the Land, the Court is of the view that that exercise might be carried out in any event, as a prudent step, by the Respondent if it has confidence in its stance responding to the Summons. Evidence of any such survey would be material to deliberations in the course of the substantive hearing.

The absence of the usual undertaking

I have decided that the approach adopted by Moore J in Central Coast v 422 Pacific Highway Wyong Pty Ltd at [22] in not requiring an undertaking as to damages from the Applicant Council is apposite for the case before me. Moore, J. said: "The Council did not offer to give the "usual undertaking" as to costs and damages. It declined to do so on the basis that it was a public authority, acting in the public interest, seeking to uphold the integrity of the State's land use planning system. Councils are not required, as a matter of course (as compared to the position in private litigation), to give the "usual undertaking" when they are conducting public interest litigation such as these Class 4 proceedings. The refusal of the Council to give the "usual undertaking" in these proceedings does not act as a barrier to me concluding that I ought make the orders …" His Honour's decision clearly follows the expression of the principle stated at [24] by Pearlman CJ in Willoughby Council v Sahade, the authority cited and relied upon by the Applicant Council, and the practice reflected in r 4.2(3) of the Land and Environment Court Rules.

Orders

The Court orders that: 1. The Respondent, by itself (including its sole director and company secretary), its servants and agents, cease the importation and depositing of any material (including but not limited to fill) on the land described as Lots 1-7 SP 96758 and known as 40 Gindurra Road, Somersby (Land) immediately upon the service of these orders on the Respondent, until further order. 2. Subject to Order 3, the Applicant Council is to: 1. serve these Orders by sending them to the email address: info@timecon.com.au and by leaving a copy of the Order at 40 Gindurra Road, Somersby, by 12.00 noon on Wednesday 30 May 2018; and 2. serve any documents filed in Court and any evidence tendered in support of Order 1 which was not otherwise provided to Mr Richard Bernard Clark at or before the hearing on 21 May 2018 by 5.00pm on Wednesday 30 May 2018. 1. Service of these Orders on the Respondent will be deemed to have been effected if the Respondent is represented in Court by a duly appointed legal representative or by its sole director, company secretary and shareholder Mr Richard Bernard Clark when judgment is given and these Orders are made. 2. Costs reserved. 3. The matter is listed for directions before the List Judge on Friday 1 June 2018.

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: 30 May 2018

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (15)

Cited By (2)