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[2026] NSWLEC 16
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-19
Pain J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Fred Caterson Champions Inc v The Hills Shire Council (No 3) [2026] NSWLEC 16
Hearing dates: 18 February 2026
Date of orders: 19 February 2026
Decision date: 19 February 2026
Jurisdiction: Class 4
Before: Pain J
Decision: See [51]
Catchwords: INTERLOCUTORY INJUNCTION – application for interlocutory order restraining work by local council of development of playing fields – whether serious question to be tried – whether irreparable harm caused if no order made – claim of acting in public interest – balance of convenience – delay in making application – application dismissed
Legislation Cited: Environmental Planning and Assessment Regulation 2021 (NSW) s 171A(1)(a)
Land and Environment Court Rules 2025 (NSW) r 4.2(3)
Uniform Civil Procedure Rules 2005 (NSW) r 59.10(2)
Cases Cited: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58
Fred Caterson Champions Inc. trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2025] NSWLEC 139
Fred Caterson Champions Inc. v The Hills Shire Council (No 2) [2026] NSWLEC 11
Hunter Community Forum Inc v Crescent Newcastle Pty Ltd [2023] NSWLEC 1
Jarasius v Forestry Commission of New South Wales (1989) 69 LGRA 156
Tegra (NSW) Pty Ltd v Gundegai Shire Council (2007) 160 LGERA 1; [2007] NSWLEC 806
Category: Principal judgment
Parties: Fred Caterson Champions Inc (Applicant)
The Hills Shire Council (Respondent)
Representation: Counsel:
N Hammond (Applicant)
I King (Respondent)
Solicitors:
Stringybark Legal (Applicant)
Matthews Folbigg Lawyers (Respondent)
File Number(s): 2025/00340555-007
The Applicant an incorporated association seeks an urgent interlocutory injunction restraining the Hills Shire Council (Council) from commencing work preparing and constructing three sports fields for rugby union on Fred Caterson Reserve (Reserve) until such time as the Court adjudicates on the relief claimed in the judicial review proceedings it has commenced.
The Notice of Motion was filed late afternoon on Tuesday 17 February 2026 (NOM 007) and I heard the matter urgently yesterday 18 February 2026 at 1 pm as duty judge. Given the timeframe, the Council had very little opportunity to respond to the application by way of evidence. The Applicant bears the onus of establishing that the order it seeks ought to be made.
The procedural history of the proceedings is relevant to my consideration. The Applicant commenced judicial review proceedings on 4 September 2025 challenging the approval of a Review of Environmental Factors (REF) and Addendum Review of Environmental Factors (AREF) by the Council as part of the development of three rugby union fields in the Reserve by the Council.
On 12 October 2025 the Council sent a letter to the NSW Government Crown Lands notifying them of the Council’s intention to proceed with the construction on Lot 224 DP 752020, which forms part of the Reserve.
On 14 October 2025 the Council resolved to accept a tender for the commencement of works at the Reserve in relation to the rugby union fields.
On 31 October 2025 the Applicant filed a Notice of Motion (NOM 002) seeking leave to extend the time to commence proceedings under Rule 59.10(2) Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and leave to rely upon expert evidence of an owl biologist.
On 21 November 2025 Pritchard J listed the matter for a two-day hearing on 23-24 February 2026 and made orders for hearing preparation such as the filing of evidence.
On 24 November 2025 the Council wrote a letter to residents stating its intention to commence construction activity in February 2026. This was published on the Council’s website on the same day.
Justice Pritchard heard NOM 002 on 3 December 2025. Her Honour delivered judgment on 4 December 2025 in Fred Caterson Champions Inc. trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2025] NSWLEC 139 (Caterson No 1) granting leave to extend the time to commence proceedings under UCPR r 59.10(2). Her Honour dismissed the application to rely on the expert evidence.
On 12 December 2025 the Applicant filed a Notice of Intention to Appeal Caterson No 1 and served the notice on the Council by email.
On 23 January 2026 the Council filed a Notice of Motion (NOM 003) which sought orders relating to the Applicant’s Notice to Produce (NTP) dated 12 December 2025.
The Applicant filed two Notices of Motion (NOM 004 and NOM 005) on 23 January 2026. NOM 004 seeks copies of documents subject to the Applicant’s NTP dated 29 October 2025. NOM 005 seeks copies of documents subject to the NTP dated 12 December 2025.
On 30 January 2026 the Applicant filed a summons in the NSW Court of Appeal seeking leave to appeal Caterson No 1. On 30 January 2026 the Applicant’s solicitor wrote to the Council’s solicitor serving the summons. The summons was listed for directions in the Court of Appeal on 9 March 2026.
On 30 January 2026 the Applicant filed a further Notice of Motion (NOM 006). NOM 006 sought a stay of the substantive proceedings to allow the appeal to the Court of Appeal to proceed first which would result in vacation of the hearing dates.
On 4 February 2026 the Council wrote to the Applicant stating that construction is scheduled to commence on or around 20 February 2026.
NOM 003 and NOM 006 were heard by me on 10 February 2026.
On 10 February 2026 I delivered an oral judgment in Fred Caterson Champions Inc. v The Hills Shire Council (No 2) [2026] NSWLEC 11 (Caterson No 2) in respect of NOM 003 and NOM 006. I dismissed NOM 003.
In relation to NOM 006 I ordered the proceedings be stayed until the determination of Court of Appeal proceedings 2026/41170 and for the hearing dates of 23 and 24 February 2026 to be vacated.
NOM 004 and NOM 005 were part heard on 10 February 2026 and are listed for further hearing on 11 March 2026.
On 12 February 2026 the Applicant wrote to the Council requesting a written commitment that it will not engage in any works in respect of the rugby union fields.
On 16 February 2026 the Council sent an email in reply to the Applicant declining the requested commitment.
On 16 February 2026 the Court of Appeal granted expedition with a decision on the papers to be made after 26 February 2026.
On 17 February 2026 the Applicant filed this Notice of Motion (NOM 007).
The Applicant relied on an affidavit of James Ryan, the Applicant’s solicitor, dated 17 February 2026 in support of the motion which identified steps taken in the proceedings and stated that no financial disadvantage would occur to Council in the sense that it had allocated money to the project from its own funds and I infer did not have to service a loan if the project was delayed. A bundle of documents annexed to Mr Ryan’s affidavit was tendered and marked Exhibit A by the Court.
The Applicant additionally relied on an affidavit of Jennifer Coburn dated 25 November 2025 which annexed the constitution of the Applicant.
The Council relied on paragraphs [1]-[28] of an affidavit of Dylann Brew, the Respondent’s solicitor, dated 6 February 2026 which identified steps in the proceedings inter alia.
The Council additionally relied on one page from the affidavit of Mark Colburt council officer dated 4 February 2026 stating when the Council resolved to award the contract to undertake the work in October 2025, and that it entered into a formal instrument of agreement with a contractor on 9 December 2025.
The Court must weigh up matters as identified in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58 (Castlemaine) as relevant in exercising its discretion whether to make the order sought.
The Applicant asserts there is a serious question to be tried or that a prima facie case has been made out. Castlemaine at 153 states that this means ‘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 held entitled to relief’ in relation to grounds 1 and 2 of the Amended Summons. These grounds refer to the failure to assess mandatory matters identified under s 171A(1)(a) of the E**nvironmental P**lanning and A**ssessment Regulation 2021 (NSW). The Applicant’s case was said to be largely documentary. The REF and AREF were referred to and the absence of reference to matters in s 171A(1)(a) highlighted, somewhat simplistically. That was said to provide a sufficient basis to establish that there was a prima facie case.
The Council submitted that there will be substantial material placed before the Court at any final hearing of some 800 pages of environmental assessment undertaken by the Council. In the time available there was no time to present that or a subset of that material to the Court.
The REF and the AREF are substantial and will need to be considered in full together with other relevant material at the final hearing. The Applicant’s very brief presentation of its case on grounds 1 and 2 amounted to little more than assertion and I can only conclude that grounds 1 and 2 appear weak on what has been presented. A prima facie case in the terms identified in Castlemaine has not been made out in relation to grounds 1 and 2.
Ground 3 alleges a failure to consider or inquire into potential for lighting impacts on three endangered owl species in relation to the 100 lux lighting proposed.
Ground 4 alleges a failure to take into account the mandatory matter when considering the likely impact of the Activity on the environment of “(o) any cumulative effect with other existing or likely future activities”. A request by the local rugby club to install cabling and wiring to enable 500 lux lights is identified in the summons. The ground asserts that the provision of 500 lux lighting to the sports fields is a likely future activity at the site.
These grounds hinge according to the Applicant in Caterson No 2 and at the hearing of NOM 007 on the evidence of an owl expert whose report was not permitted to be relied on in NOM 002. I did not understand that these grounds were relied on in support of this application as it is presently unknown if that evidence will be available.
If they are, as the Council submitted, the factual basis for ground 4 is not established by the affidavit of Ms Sandercock dated 4 February 2026 which included extracts of diagrams in the REF about the extent of light shed if using 100 lux. Light spill if using 500 lux lights in the REF/AREF was also identified in the affidavit. The legal basis underpinning the ground was not made out by this material.
I observe that the Applicant’s submission that the Council in not acting to strike out the summons was indicative that it had a prima facie case is not accepted. If accepted it would effectively reverse the onus of proof the Applicant bears. That the Council has engaged with the Applicant’s case in filing a defence takes this aspect of the matter no further for the Applicant.
The Applicant asserted that it is acting in the public interest relying on the objective identified in its constitution when it became registered on 27 June 2025. That objective states there is no other evidence provided to support the claim of acting in the public interest such as evidence of members and activities engaged in. It is difficult to reach any final conclusion on this matter given the paucity of evidence and the early stage of the proceedings.
I observe that the Council is seeking to build playing fields which will also be of benefit to that local community. The press release issued by the Council on Tuesday 17 February 2026 in evidence states ‘preliminary works to transform the former Pony club site at Fred Caterson Reserve are underway, signalling the start of a project that will deliver new sporting fields and bolster the reserve’s position as a vital local sporting hub’.
The Applicant wished to maintain the status quo which it submits is preservation of the Reserve in its present state. There was little evidence referred to by the Applicant explaining what environmental impacts were of concern to the Applicant if the work commences beyond the provision of lighting which could disturb three owl species. Reference was made to the report of the owl expert, not presently permitted to be relied on in these proceedings, who expressed concern about the greater penetration of light into owl habitat if trees were removed as is planned as part of the project.
The Council has entered into a contract for the work to be undertaken and wishes to proceed with that work.
Delay in seeking the interlocutory injunction is raised against the Applicant with some foundation. Delay in seeking interlocutory relief is a significant factor against granting such relief, see Tegra at [43] citing Jarasius v Forestry Commission of New South Wales (1989) 69 LGRA 156 at 164-167 inter alia.
The original summons filed on 4 September 2025 included in prayer 1 an interlocutory restraining order. No such order was sought until yesterday 17 February 2026, following the filing of five other interlocutory notices of motion dealing with notices to produce and an application to vacate hearing dates to enable application for leave to appeal the interlocutory decision in NOM 002 refusing leave to rely on expert evidence. The public and presumably the Applicant was aware from 24 November 2025 of the Council’s intention to proceed with the work in February 2026.
At the hearing of NOM 003 and NOM 006 before me on 10 February 2026 there was no submission from the Applicant that an interlocutory application was to be sought as has occurred seven days later. Indeed the Applicant’s submissions at that hearing identified that there was no interlocutory order in place as part of its argument for the relief then sought. The hearing dates of 23 and 24 February 2026 were vacated on the Applicant’s application.
There is no satisfactory explanation for the delay in seeking an interlocutory injunction. I understand the main basis the Applicant relied on to submit it had not caused any relevant delay or inconvenience to the Council was its understanding that the Council had to have a plan of management in place before the Council could commence the work. This matter is disputed by the Council. It is not referred to in the amended summons. I declined to deal with the issue in Caterson No 2 at [26]. As identified in Hunter Community Forum Inc v Crescent Newcastle Pty L**td [2023] NSWLEC 1 at [18]-[19] by Duggan J identification of a serious question to be tried is directed to the issues raised in the substantive proceedings. It is not appropriate that the court adjudicate on a matter that is not the subject of a ground of review as to do so is impermissibly akin to providing judicial advice. Further the matter had to be determined urgently as required of the duty judge with the necessity to give an urgent decision inter alia. The same observations apply to this matter. Accordingly whether a plan of management is required before work can start has no role to play in explaining the delay on the Applicant’s part. I am unable to determine if the Applicant’s reliance on that matter is reasonable to explain its actions. I consider the Applicant has materially delayed in making this application.
As the Council submitted, had an application for an interlocutory order been made earlier, the matter of expedition of proceedings could have been considered as part of the exercise of the Court’s discretion. As it stands now I agreed to make the orders sought by the Applicant on 10 February 2026 which has resulted in the vacation of the hearing on 23 and 24 February 2026. The Council entered into a contract for the activity on 9 December 2025 and it has commenced with project planning, materials and resource ordering and logistics being arranged. Construction establishment works that form part of the activity were intended to commence on about 18 February 2026. I infer that the Council will incur costs if the work is stopped. That it has the funds available in its accounts does not ameliorate that unquantified loss.
I was told that the contract entered into by the Council runs to spring 2027. If the Applicant is able to resolve its appeal quickly it can consider seeking to obtain an early hearing date on return to the Court in order for this matter to be resolved promptly so that there is some utility in any orders the Court might make if the Applicant is ultimately successful.
Weighing up these various factors based on the somewhat limited material placed before the Court by the Applicant in particular, I consider that the Applicant’s NOM 007 should be dismissed.
The Court orders that:
The Applicant’s Notice of Motion filed on 17 February 2026 is dismissed.
Costs of the Notice of Motion filed on 17 February 2026 to be the Respondent’s costs in the cause.
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Fred Caterson Champions Inc
The Hills Shire Council
(1986) 161 CLR 148
(2007) 160 LGERA 1