Deborah Gay Michalek v Penrith City Council

After argument I am now in the position to rule on the application of Mrs Michalek for an interlocutory injunction. The terms sought are set out in the summons filed on 20 February 2026. The terms of the injunction sought in the first prayer relate to stopping the Council doing work concerning stormwater in what is called permanent tree protection zones (TPZs). The Council is able to undertake such work pursuant to development consent DA22/0075 it currently has in relation to land it owns for the preparation of a four-lot subdivision.

The second prayer seeks to prevent the installation of sewer mains, which as I understand from what the Council has taken me to, is future work that simply has not arisen and cannot arise at the moment. There is no factual basis I can see for prayer 2.

Prayer 3 suggests that an alternative to what is proposed could be undertaken by the Council. There is no legal basis for the Court to consider that. There is no legal issue raised in prayer 3.

Prayer 4 advises the Court of when Mrs Michalek had a meeting with Council officers and was advised about changes in tree root plans. No legal issue is identified.

There are no grounds set out in the summons, as is generally required. The basis on which the legal case is intended to be put by Mrs Michalek is not identified in the summons. That is one difficulty I have in identifying whether any legal issue is raised.

I identify also that Mrs Michalek swore an affidavit on 20 February 2026 where she advises that she is the owner of three properties which essentially adjoin the Council's land where four residential subdivision lots are proposed.

The reason why she filed urgently was that at a meeting on Wednesday 18 February 2026 with Council officers, they told her work would commence shortly. She sets out broadly why she believes that the injunction is necessary, because the excavation would cause permanent damage by severing tree roots and creating weakness in these. She maintains that the stormwater easement and sewer lines along the boundary will cause damage to those trees.

As far as I can understand from what is being put by both the Council and Mrs Michalek there is an existing stormwater easement at the rear of the lot which is the Council's land where the stormwater is intended to run. As I will come to in a moment, none of the work proposed that is currently consented to for the provision of stormwater on the Council’s land impacts in any way on any of the trees which are included in the tree protection zone except for tree 1. There is an arborist's report before the Court which suggests that measures can be taken to ensure that tree will be protected.

The other matters raised in Mrs Michalek's affidavit I consider go essentially to her proposal for an alternative treatment for the trees which is a merit issue. Mrs Michalek states that she has told the Council on numerous occasions about her objections and concerns. This brings me to one issue with the application currently before me. I understood from Mrs Michalek's submissions that she considered she had an objector appeal right under s 8.8 of the Environmental Planning and Assessment Act 1979 (NSW), which I have informed her she does not as the development is not designated.

The relevant decision when the Council obtained consent for DA22/0075 was made on 20 December 2022. The only ability to challenge that decision is by way of judicial review proceedings. There is a statutory provision which provides for a three-month time limit on the commencement of proceedings, which would have to be from the time that there was the grant of consent. For current purposes I do not have to say exactly when the three months expired. The point I am making is that I think it is likely that the three-month time limit for commencing judicial review proceedings probably expired some time ago. There is an ability to commence proceedings and seek leave to commence outside that period, but further affidavit evidence to justify why that would be the case would be required.

In terms of the documentation provided, Mrs Michalek has not advised the Court of any legal issue that I can see to underpin a challenge in judicial review proceedings to the Council's development consent. In submissions today Mrs Michalek referred to a breach of the Australian Standards for the Protection of Trees on Development Sites. Unfortunately, the Court does not have that Standard before it and simply referring to it and stating her view that it has been breached of itself does not give rise to any legal issue that I am aware of which could be referred to in judicial review proceedings.

The other issue raised was in relation to future work by future residents or future owners of the four lots which are the subject of the approved subdivision plan. There is simply no basis that I am aware of at this point for a legal issue to arise in relation to restraining activity for which as I understand it there is no development consent. Speculation on what might happen in the future remains speculation. Once again, no legal issue is identified.

The Council in its objection to the interlocutory injunction application relied on the affidavit of Mrs McAndrew, solicitor, which attached a number of documents in what became exhibit 1. That is the MM1 exhibit to that affidavit. I was assisted in terms of understanding the development processes so far by reference to the plans that have been given consent, as contained in tab 9 of exhibit 1. I was helpfully shown where the tree protection zone is and the relationship to the four lots, confirmed by looking at the relevant conditions of consent that there is approval for stormwater works only, not sewer works at this point. That is a further reason why any injunction could not be considered in relation to sewer works.

I was taken to the arborist's report relating to the stormwater works, which suggests that none of the TPZs will be impacted by the work but for tree 1 and there are measures in place to deal with that.

In terms of the balance of matters that I would look at for an interlocutory injunction application, I was referred to, amongst many cases which set out the relevant principles, South East Forest Rescue Incorporated INC9894013 v Forestry Corporation of New South Wales [2024] NSWLEC 7 where Pritchard J identified, relying in turn on Tegra (NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA; [2007] NSWLE 806, a number of factors relating to balance of convenience.

The first of those is whether irreparable injury will be caused. There is no basis for such a conclusion. Given what I have been advised by the Council based on the documents none of the trees that Mrs Michalek is concerned about will suffer irreparable injury.

Mrs Michalek is not offering an undertaking to pay damages, even if I was minded to issue an interlocutory injunction and that would have been a factor against the issue of an injunction, given this matter is essentially being brought by a private landowner.

The status quo clearly lies in not granting the interlocutory injunction. The other matter that has not been explicitly mentioned but arises is that I think there has been substantial delay in commencing these proceedings. So for all these reasons I do not consider it is appropriate to grant the interlocutory injunction order sought in prayer 1 in the summons filed by Mrs Michalek.

The injunction application is refused.