Central Coast Council v 422 Pacific Highway Wyong Pty Ltd

Land and Environment Court (NSW)|2018-03-23|Before: Moore J

TABLE OF CONTENTS Introduction The evidence on the interlocutory application Material from the Company The matters demonstrating a serious issue to be tried The balance of convenience The absence of the "usual undertaking"

Introduction

On Friday 23 March 2018, I agreed to issue, in modified form, ex parte orders sought by Central Coast Council (the Council) to restrain 422 Pacific Highway Wyong Pty Ltd (the Company) from continuing to import soil onto a property at Wyong comprising portions of Lot 21 in Deposited Plan 1006849 and Lot 3 in Deposited Plan 543325. These two allotments abut each other with Lot 21 having a frontage to the Pacific Highway. Lot 21 has a street address of 422 Pacific Highway, Wyong.
Mr T To, barrister for the Council, appeared before me on the making of the application for the interim injunction. The Council had commenced, earlier that day, Class 4 civil enforcement proceedings against the Company and five other respondents. These five respondents comprised the owners of Lot 3 (as the Second and Third Respondents); Arja Jortikka and Jarmo Jortikka (as the owners of Lot 21) (as the Fourth and Fifth Respondents); and Mr William Dagger, a private certifier who had issued a complying development certificate for the earthworks being undertaken by the Company on Lot 3 (as the Sixth Respondent).
At this point, I note that I was satisfied that it was appropriate to make short‑term interlocutory orders against the Company and against the Sixth Respondent as it was the potential (although unlikely) position that Mr Dagger could be regarded as being an agent of the Company for the purposes of the Company's activities.

The evidence on the interlocutory application

The Council read two affidavits on the interlocutory application. These affidavits were from: 1. Affidavit of Mr Rhys Richards dated 22 March 2018; 2. Affidavit of Mr Brian Jones dated 22 March 2018.
Each of these affidavits had a bundle of documents exhibited to it.
Also handed up, relevant on the interlocutory application, were extracts from State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) and Mr To had also prepared short written submissions in support of the interlocutory application.
The two affidavits contained information that established that the Company was seeking to import and distribute fill across very large portions of Lot 21 and Lot 3, with this fill to be to a depth of 1.95 metres across significant portions of the two allotments. In evidence before me was a copy of the complying development certificate which Mr Dagger purported to have given to approve these earthworks and a copy of the plans showing the extent and depth to which the fill was proposed to be applied to the land.
The affidavits, and the material exhibited to them, provide a proper basis upon which I could be satisfied that fill had been imported onto the land on more than one occasion.
The affidavits also satisfied me, from express statements of personal observation made in them (observations consistent with what was able to be observed from contemporary air photos in the exhibited material), that each of the lots had a dwelling erected on it. The presence of a dwelling on each of the allotments is a matter relevant to the question of whether or not the SEPP could be relied upon as a basis upon which the filling would be allowed to be imported and spread.
I was satisfied that this evidentiary material provided a sufficient factual basis to permit Mr To to be heard on the question of whether or not there was a significant issue to be tried.

Material from the Company

At a little after 2.00 am on the morning of Friday 23 March 2018, an e-mail was sent to the Court's public e-mail address signed by "Richard" and giving a mobile phone number. Appended to that e-mail was what was described as being "our response to Applicants proposed lodgement as per their advice below". This material comprised 53 sequentially numbered pages. Later in the day, at 2.37 pm, a further e-mail was received from Richard, an e-mail which had attached to it what appears to be an expanded version of the document sent in the early hours that morning. This document comprised 76 sequentially numbered pages.
I had my judicial researcher phone the mobile phone number given by Richard and it was through that contact that she established that the author of the material was Mr Richard Clark and that, as appeared from the status he asserted on one of the folios he had signed, he was a director of the Company. It is to be observed that, in the material exhibited to the Council's affidavits, there was an extract from the official records of the Australian Securities and Investments Commission (ASIC) setting out the primary statutory information concerning the Company. This extract confirmed that Mr Richard Clark was the sole Director of the Company.
I had asked my researcher to enquire of Mr Richard (Clark as now known) whether he objected to me making available a copy of the longer version of the material transmitted to the Court, as it did not appear that this was available to the legal representatives of the Council for the purposes of the interlocutory hearing. Mr Clark advised that he had no objection to the material or his covering e-mail being made available, as he had (as was able to be seen from the header information to the e-mail) copied the e-mail to one of the Council's legal representatives. My chambers, therefore, made a copy of the e-mail and the attached material available to Mr T Pickup, solicitor instructing Mr To on behalf of the Council.
Although this material was not able to be tendered on behalf of the Council, in the absence of it being represented before me, I considered it appropriate to examine the material on an informal basis. In addition, properly, Mr To took me to an element of the material concerning the assertion made on behalf of the Company that a provision of the SEPP provided a proper basis for the Company to carry out the earthworks' activities shown on the plans upon the basis of which Mr Dagger had issued his complying development certificate.

The matters demonstrating a serious issue to be tried

In its Summons commencing the Class 4 proceedings, the Council seeks, in essence, that Mr Dagger's complying development certificate authorising the Company's activities should be held to be invalid. As a consequence of such a finding (if made), the Council proposes that the various Respondents should be restrained from carrying out any further earthworks on Lot 21 and Lot 3 (as the Council submits that there is no development consent currently valid which would provide any basis for such activities and that there is no basis in the SEPP to conclude that the earthworks are permissible without development consent).
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.
It is, however, sufficient for me to have concluded that there is a seriously arguable case, based on the evidence advanced by the Council on this interlocutory application.

The balance of convenience

It is difficult to assess what might be the impact if continued importation of fill material to support the earthworks was permitted. However, it is obvious from the earthworks' plan that had been submitted to Mr Dagger that there were very significant volumes of material needing to be imported to fill the extent of Lots 21 and 3 to a depth of 1.95 metres across a very significant area of this land. If there later proved to be a necessity to remove the material, it is reasonable to conclude that that would be an activity of considerable cost. The volume of material, and the potential difficulty in effecting removal if continued importation was not restrained, weighs in favour of making an interlocutory order. I had no evidence on behalf of the Company, to enable me to consider the extent of disadvantage to the Company (if any) that would arise if I were to restrain the Company, for the short period of time for which I have restrained it, by so doing.
It therefore follows that, on this basis, I was satisfied that the balance of convenience lay in favour of preserving the status quo, if only until the time and date to which I adjourned the interlocutory application.

The absence of the "usual undertaking"

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 which I made in the early evening of Friday 23 March 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: 26 March 2018

At a glance

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Judgment (8 paragraphs)

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