(b) the contractor's surveyor had used GPS equipment to define the limits of the clearing, and therefore, sight line clearing was not required.
20 Finally, Mr Horton stated that the purpose of the high visibility fencing around the perimeter of the cleared areas was not to stop wildlife entering the site, as suggested by Hill Top, but to stop contractors and their machinery going beyond the cleared areas into other areas of vegetation on the site. Mr Horton stated that the erection of high visibility mesh fencing had commenced in respect of the areas cleared to date. He stated that this fencing would be progressively installed around cleared areas as it continued.
21 Significantly, the Minister also relied on an affidavit of Mr John Shipway, affirmed 21 October 2010. Mr Shipway is the Manager, Strategic Projects, Properties and Venues Division, New South Wales Sport and Recreation. In this capacity he is responsible for completing the major project the subject of the application.
22 Mr Shipway deposed, first, that the reference to drawing no "21-17859-C004" in condition C1 of the approval was an error. That condition states as follows:
C1 Vegetation clearance
The vegetation clearing for the shooting ranges, internal roads and facilities shall be undertaken in a staged manner. Approval is granted for the clearing of vegetation associated with the 500m rifle range, 50m pistol range, clubhouse and ancillary works. Clearing for the 500m range is to be in accordance with Drawing No. 21-17859-C004 Rev A prepared by GHD.
Prior to any further vegetation clearing for any other ranges and/or facilities, written authorisation shall be obtained from the Director General once documentation is provided confirming the funding agreements and timing for completion of the other ranges and/or facilities, and that a management plan for the additional clearing has been approved by the Department of Planning.
23 To the best of Mr Shipway's knowledge there was no such drawing in existence. Rather, it was his belief that a typographical error in condition C1 has occurred and that the intended reference was to drawing no 21-17850-C004 Rev A.
24 I accept this explanation. While, as Hill Top correctly submitted, any amendment to the approval can only be made by the Minister, this typographical error could not, by itself, found the basis for any interim injunctive relief.
25 Second, Mr Shipway states that on 19 October 2010, he sent a letter to the Department of Planning seeking modification of the approval. This was in accordance with drawing no 21-17-850-C004 Rev 0.
26 In that letter, in addition to outlining the typographical error referred to above, Mr Shipway stated the following:
I refer also to the plan detail for the 500m rifle range. In the Environmental Assessment Report and subsequent documentation provided to the Department, the exact location of the 500m range was detailed.
Subsequent to Quantity Surveyor costings for the 500m range based on detailed drawings and topography configurations, it became clear that major earth works and clearing would be required at the stop-but end of the range (western aspect). It was estimated that a very significant earth moving exercise would be required to construct the stop-but and that it would encroach onto the beginning of a gulley.
This was a major impediment to clearing and construction of the 500m range. It required Communities NSW (Sport and Recreation) to review the proposals for this range, including whether the range could physically be constructed. A shorter range length was contemplated.
It was finally agreed with GHD that the best approach to reduce the significant earth moving exercise, including the excessive cost involved, would be to lower the range and to re-locate it approximately 50m towards Wattle Ridge Road. The effect of this relocation would allow a fully functioning range without the need to clear additional vegetation and would overcome the requirement for a massive earth clearing operation.
Detail on the re-located 500m rifle range is included in the attached drawing, Drawing No. 21-17850-C004 prepared by GHD. We apologise for not submitting this re-located position for the 500m range.
Accordingly, we seek approval by the Department of Planning of the re-located site for the 500m rifle range, 200m rifle/pistol range and sedimentation pond location at the Southern Highlands Regional Shooting Complex as per the attached drawing.
27 Mr Shipway again wrote to the Department of Planning on 20 October 2010. In that letter he summarised the contents of his letter dated 19 October 2010 as follows:
It was detailed in that advice that Communities New South Wales (Sport and Recreation) was faced with a major construction issue in respect of the 500 m range once we received more precise survey data. It was clear that our ability to construct that range was severely impacted by the topography.
Our letter yesterday detailed that this agency varied the relevant drawing in a manner that would permit the range to be physically constructed, in summary, by moving the two ranges (500 m rifle range initially) towards Wattle Ridge Road.
28 The letter went on to provide the Department with the additional information that it had requested regarding the rationale for the relocation, the impact on surrounding ecology, a delineation of the extent of the relocation and detail on the clearing work undertaken to date.
29 One of the documents provided was drawing no 21-17850-C010, which detailed the revised 200 m and 500 m ranges in their relocated positions. The drawing was dated 11 October 2010. That is to say, before the clearing commenced.
30 Also attached to the affidavit was a memorandum dated 20 October 2010, from Mr Horton to Mr Shipway. The memorandum relevantly discussed the relocation of the proposed 500 m and 200 m ranges to the north of the current Environmental Assessment location. The memorandum further stated:
Based on the desire to limit fuel volumes, minimise clearing and improve earthworks generally, a revised location and configuration was considered and progressed as the detailed design (the range moved approximately 100 m north).
Whether There is a Serious Question to be Tried
The Clearing of the Land
31 The Minister argues that there is no serious question to be tried given the terms of the concession and the undertaking.
32 Hill Top, however, contends that there is a serious question to be tried, namely, whether interim injunctive relief ought to be granted to prevent any further clearing in the areas common to the approved area and those proposed to be approved by the modification application. Hill Top contends that given the past unapproved clearing, there is a risk that unlawful clearing will continue irrespective of the undertaking, particularly in respect of the areas about which modification to the approval is sought.
33 In my opinion, however, no serious question to be tried arises. The Minister has properly conceded that unapproved works occurred. The Minister cannot be prevented retrospectively from carrying out this activity by the interlocutory relief sought. As to the future, this will be governed by the undertaking.
34 When regard is had to the terms of the undertaking and the clearing that the Minister seeks to effect pursuant to it, with the exception of the issue of fencing (discussed below), there is nothing left to engage the relief sought. The Minister agrees that it will not conduct any new clearing except that as approved previously and, moreover, that he will not clear in any area that would cease to be approved if the modification application is successful. This undertaking in fact results in less area presently cleared than that which the Minister currently has approval to clear.
35 Accordingly, the only basis upon which it could be said that there is a serious question to be tried is if there is some reason for suspecting that the undertaking cannot be relied upon. Hill Top submits there is and that the undertaking cannot be relied upon because previously unapproved areas have been cleared and, according to Hill Top, deliberately so.
36 Hill Top makes this submission by reference to the material attached to Mr Shipway's affidavit. In particular, it relies on the modification application, on the letter sent to the Department of Planning on 20 October 2010, and on the memorandum of the same date.
37 It is Hill Top's submission that properly understood these documents reveal an intention on the part of the Minister to clear unapproved areas because of a desire to relocate the 500 m and 200 m ranges. Hill Top submits that once further geographical data was obtained by GHD, it sought to unilaterally vary the approval given due to the topographical constraints revealed by this information. A new plan was drawn up (the plan dated 11 October 2010) detailing the relocation. The clearing took place in accordance with this unilaterally revised plan, which resulted in the unapproved works. The conduct was therefore deliberate.
38 In the alternative, Hill Top submitted that the Minister was grossly negligent to the extent that the Minister did not know which areas had been approved for clearing and which had not, but he nevertheless proceeded to clear vegetation.
39 Either way, Hill Top submits, confidence cannot be placed in the undertaking given by the Minister.
40 The Minister states that Hill Top is seeking to read too much into the documents attached to Mr Shipway's affidavit. The only deliberate decision made, he states, was to move the range. This is not to say, however, that a decision was made to clear other than in accordance with the existing approval. While it was known that relocation of certain aspects of the development was required, there was no knowledge that the land which had been cleared was not the subject of approval until 19 October 2010.
41 The Minister further noted that clearing approval had been given for other aspects of the development, namely, the 50 m range, the clubhouse and ancillary works, for which no plans existed. It was, therefore, not the case that all approved works had plans associated with them. It was, therefore, not the case that all clearing was to take place in accordance with a known plan. It was in this context that the unapproved clearing had occurred. It ought reasonably be characterised as an oversight and nothing more. In short, the evidence, the Minister submitted, was not sufficiently cogent to permit the inference of deliberateness to be drawn which Hill Top had invited the Court to draw.
42 The implication suggested by Hill Top is a serious one. In my view, although certain aspects of the language used in the documentation referred to above appear, at first blush, troubling, I do not believe that there is a sufficient evidential nexus between what is revealed in those documents and the mere fact of the unapproved clearing, to permit me to make a finding that the unapproved clearing was consciously committed by the Minister. Rather, in my opinion, the better view of the language expressed in the modification application is that it is no more than a justification as to why the modification is necessary. It does not reveal, without more, any nefarious intent on behalf of the Minister, through GHD, to unilaterally change the approved plans and to clear vegetation absent any approval to do so, or in anticipation of a forthcoming approval.
43 Accordingly, in light of the terms of the undertaking and in light of the concession that unapproved clearing has taken place, there is no serious question to be tried enlivening the need for interim injunctive relief in respect of any future clearing.
The Fencing
44 Hill Top repeated the submissions it made in the first Hill Top decision that the activity of clearing constituted "construction" and not "pre-construction", and therefore, pursuant to the terms of the approval documents (as described in the first Hill Top decision) fencing had to be erected in the pre-construction phase. That is to say, before clearing could occur fencing had to be installed.
45 The Minister, by contrast, submitted that clearing was part of the "pre-construction" phase of the development and provided that at some point during that phase fencing was erected, this was sufficient to comply with the approval. That is to say, all that the approval did was prescribe the necessity for fencing and not the order in which the clearing and fencing were to take place during the "pre-construction" phase. This construction was reinforced by the purpose of the fencing, namely, to limit the construction footprint. Thus provided fencing was erected immediately after the clearing had occurred in order to ensure that any construction did not trespass upon uncleared land, this was sufficient.
46 Furthermore, the Minister submitted, the evidence of Mr Horton demonstrated that it was not possible to fence first and clear later. Moreover, there was no evidence before the Court that any reversal of the order suggested by Hill Top had caused or had the potential to cause environmental damage that would warrant protection by way of the granting of the injunction sought.
47 I agree with the Minister's submissions. When regard is had to the terms of the approval documents what is tolerably clear is that whether or not clearing forms part of the "construction" phase or the "pre-construction" phase is entirely unclear. This is because the ancillary approval documents are inconsistent both internally and as between themselves. For example, under "5.2.2 Construction phase" the associated mitigation measures state, "clearing activities confined to construction footprints delineated with temporary high visibility fencing during the preconstruction phase". This suggests clearing is part of the "construction" phase. Whereas in "5.2.1 Pre-construction phase", it states "loss of native vegetation through excessive construction footprint…clearly demarcate the construction footprint with high visibility fencing". This suggests that clearing is part of the "pre-construction" phase. In another document (the Construction Environmental Management Plan September 2010) in a section entitled "pre-construction", reference is made to the completion of pre-clearance surveys suggesting that clearing occurs later during the construction phase. Whereas later in the same document, reference is made in the "Construction phase" to "adhere to the set timing for clearing activities", indicating that clearing has already occurred during "pre-construction".
48 While it is correct that fencing must occur during the "pre-construction" phase, whether or not clearing falls within the preconstruction or construction phases of the development is, in my view, entirely ambiguous.
49 The ancillary approval documents are not statutes and the usual cannons of statutory construction do not apply to them. But having regard to the purpose of the requirement to fence, what is clear is that fencing must be erected in order to protect against construction works breaching the boundaries of the approved clearing areas and entering adjacent areas of vegetation. So much so is stated in "5.2 Ecological Management":
Fence proposed development areas with appropriate temporary fencing to ensure construction works do not breach the boundaries and enter the adjacent areas of vegetation.
50 For present purposes, it is therefore my view that provided fencing is installed either before or immediately after clearing has occurred, the approval has not been breached. Thus provided the fencing is in place prior to construction having commenced this will be sufficient. Whether the fencing is erected immediately before the clearing or immediately after does not matter so long as it is installed within a reasonably proximate period of time of the clearing and provided a system is in place to ensure that the clearing takes place within the approved areas. Having regard to the evidence of Mr Horton, I am confident that such a system is in place and that fencing is being erected in a timely manner after the land has been cleared.
51 It follows from the above discussion that for the purpose of this application I do not accept that the approval has been breached because fencing is being erected as contemplated by its terms. It therefore also follows that I do not accept that there is a serious question to be tried and thus there is no basis upon which interim injunctive relief can be granted in respect of this asserted breach of the approval.
52 But even if this conclusion is incorrect, in my view, the balance of convenience would not, in any event, favour the granting of the relief sought.
Balance of Convenience
53 The reasons for this are as follows. First, as discussed above, the terms of the concession and undertaking mean that there is very little remaining that requires protection pursuant to a grant of interim injunctive relief.
54 Second, while it is undeniable that the site is an area of high conservation value, the undertaking protects against any further unapproved clearing, and moreover, limits the amount of approved clearing. In addition, the fact that this application has been brought puts the Minister on notice that he must ensure that no further unapproved clearing takes place.
55 Third, there is no evidence that harm will, or even that it may, occur to the environment if the interim injunctive relief sought is not granted. On the contrary, given the terms of the undertaking, until such time as the modification application is approved, less land will be cleared.
56 Fourth, the impact the injunction would have on the development would be significant in terms of delay. For the reasons given in the first Hill Top decision, the Minister would not be able to undertake any clearing from November 2010 to May 2011.
57 In short, given the deleterious effect on the development that the grant of a temporary injunction would have, and in the absence of any evidence of likely or even possible harm to the environment if it were not ordered, the balance of convenience does not favour the granting of the injunction.
Costs
58 The Minister submitted that the costs of the application ought to be its costs in the cause. By contrast, Hill Top submitted that because the application for interlocutory relief had been refused on the basis of the concession and the undertaking given by the Minister, both not proffered until earlier today, the Minister should pay Hill Top's costs at least up to today.
59 Counsel for the Minister did not cavil with the suggestion that were it not for this application, the oversight giving rise to the unapproved clearing would not have been identified, or at the very least, would not have been identified as quickly as it had. On this basis it may be said that the application has had utility. Against this, is the fact that the delay in offering the undertaking and making the concession was caused largely by the late notice given to the Minister by Hill Top of the application.
60 Accordingly, in my view, the appropriate order is that each party bear its own costs.
61 Were it necessary to decide, I would have, in any event, readily found that this litigation was brought in the public interest and that an order that each party bear its own costs was justified under r 4.2 of the Land and Environment Court Rules 2007.
Consequential Orders
62 The parties agree that it is in their interests that the final hearing of this matter be expedited. While noting that as at 1 November 2010 no further clearing can take place on the site until May 2011, I nevertheless agree that the sooner all issues concerning the ambit of the approval are resolved, the better.
63 It will therefore be necessary for the parties to bring in short minutes of order, once they have had the opportunity to confer, for the expedition of the final hearing of the summons.
Orders
64 The orders of the Court are therefore:
(1) that the application for interim injunctive relief is dismissed with no orders as to costs;