Hopkins v Tamworth Regional Council

Land and Environment Court (NSW)|2024-12-19|Before: Pepper J, Pty Ltd J

Benjamin Hopkins Seek Interim Injunctive Relief to Halt Construction of the Tamworth Regional Skywalk

By notice of motion filed on 18 December 2024, the applicant, Benjamin Hopkins, seeks interim injunctive relief against the first respondent, Tamworth Regional Council ("the Council"), and the second respondent, Fleetwood Urban Pty Ltd ("Fleetwood Urban"), in relation to the site clearance, construction of entrances, tree felling, root grubbing and earth removal on a parcel of land recorded as Lot 7300/DP 1152789 situated in Oxley Park, NSW ("the property"), being the site of the proposed Tamworth Regional Skywalk ("the Skywalk").
The motion was heard in the afternoon of 19 December 2024 as a duty judge matter. Orders were made at the conclusion of the hearing with brief oral reasons provided for the decision and with the promise of more fulsome written reasons to be provided at a later date. These are those written reasons.
By summons filed on 7 November 2024, Hopkins, a resident of Tamworth, commenced Class 4 judicial review proceedings challenging the Council's Review of Environmental Factors Tamworth Regional Skywalk prepared by Geolink, dated 30 July 2024 ("the REF"), in relation to the Skywalk.
Hopkins submitted that the summons sought the following relief: The Court should order an injunction on the "Activity" known as the Tamworth Regional Skywalk in Oxley Park while a judicial review of the "decision" takes place in the Land and Environment Court. The Court should order the TRC to put a finished "Local Cultural Assessment Report" on public exhibition alongside or inside the revised and completed REF. The Court should order the TRC to hold a vote to accept that Local Cultural Assessment Report and the thereby completed and legally based REF in Open Council in a manner similar to that for the Victoria Park Master Plan (2021). The Court should order the re-creation of a public trust to oversee Oxley Park (to replace the Tamworth Public Recreation Reserve Trust wound up in 2019) to oversee all construction by the Council as "Crown Land Manager." That is, the creation of an oversight body in this large and unique Oxley Park (370 hectares in East Tamworth) made up of representatives from the community, Crown lands, (L)ALC and the TRC which could "approve" reports and development proposals coming out of Council and alert legal "consent authorities" ahead of time if there were disagreements.

Evidence of the Parties

In support of the motion, Hopkins relied upon his affidavit sworn on 17 December 2024, where he deposed to his observation of the construction works at the property, and included the following photographs showing the clearing that had already occurred:
Hopkins also relied upon: 1. the REF; and 2. appendix D to the REF, namely, an Aboriginal Cultural Heritage Assessment, dated September 2024.
The Council read an affidavit of Alyce Kleise, a solicitor acting for the Council, affirmed 19 December 2024. In this affidavit Kleise deposed to the potential damage to the Council and to Fleetwood Urban if the injunction was granted.
Relevantly for present purposes she deposed that: 6 I am instructed that the First Respondent's funding for the Tamworth Regional Skywalk is a total of $18 million, which is expected to be fully expended, and that this figure comprises the total of the following amounts: a. $14.3 million in State government grant funds. In this regard, on 3 March 2023, the NSW Government announced that the Tamworth Regional Skywalk had been the recipient of $14.3 million in funding from the NSW Government's Regional Tourism Activation Fund. b. $3.7 million in Council funds. The NSW Office of Local Government conducted a capital expenditure review of the First Respondent's proposal to expend $3.7 million through a loan from Council's Regional Development Fund, and repay this loan through general revenue. On 24 April 2024, the NSW Office of Local Government concluded that the First Respondent "has satisfactorily addressed the criteria required in the Guidelines". 7 In October 2024, the First Respondent entered into a Design & Construct Contract with the Second Respondent (the Construction Contract), given the funding received above. I have reviewed the Construction Contract and set out below, some important matters contained therein: a. the First Respondent is identified as both the 'Principal' and the 'Superintendent' in the Construction Contract. b. the 'Contract Sum' is defined as "the amount stated in Item 68, including Provisional Sums and including the amounts (if any) paid in connection with any Early Works, as adjusted in accordance with the Contract'. c. the Contract Sum is identified as $13,864,598 (excluding GST), pursuant to Item 68 of the table in Annexure Part A of the Construction Contract. d. the date for practical completion is 27 February 2026, pursuant to Item 7(a) of the table in Annexure Part A of the Construction Contract. 8 If the Applicant's proposed orders in the Notice of Motion are made, there will be contractual and financial implications for the First Respondent and Second Respondent, including the following: a. Delay damages - In circumstances where there is a delay to the current program for the works under the Construction Contract to be carried out, the First Respondent will be required to pay the Second Respondent any extra costs and expenses that are incurred as a result of the delay. The maximum daily amount of delay damages is capped at $2,000 per day and the maximum aggregate amount of delay damages is 5% of the Contract Sum (that is, in the order of $693,229.90). b. Termination of the Construction Contract - The First Respondent is obligated to provide the Second Respondent with access to the Site, pursuant to the Construction Contract. Any delay to the works under the Construction Contract of at least 60 business days is considered to be a 'substantial breach' of the Contract. In such circumstances, a right of termination arises for the Second Respondent to terminate the Construction Contract. 9 Additionally, I am instructed that a delay in the completion of the works will impact the community insofar as it will increase the time that the parts of the Site being developed will be fenced off and inaccessible, and will delay the community's enjoyment of the benefits of the Tamworth Regional Skywalk.
Kleise further stated that the works ceased on 18 December 2024 and would not resume until 13 January 2025. Moreover, with respect to the works completed to date, as to Stage 1 of the project, approximately 90% of the clearing was now complete, including construction access and a construction compound area; and approximately 80% of the clearing has been carried out with respect to Stage 2 of the development.

Legislative Framework

By reason of Div 12, s 2.73(3)(a) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 development consent was not required for the Skywalk: 2.73 Development permitted without consent … (3) Any of the following development may be carried out by or on behalf of a public authority without consent on land owned or controlled by the public authority - (a) development for any of the following purposes - (i) roads, pedestrian pathways, cycleways, single storey car parks, ticketing facilities, viewing platforms and pedestrian bridges, (ii) recreation areas and recreation facilities (outdoor), but not including grandstands, (iii) visitor information centres, information boards and other information facilities, (iv) lighting, if light spill and artificial sky glow is minimised in accordance with the Lighting for Roads and Public Spaces Standard, (v) landscaping, including landscape structures or features (such as art work) and irrigation systems, (vi) amenities for people using the reserve, including toilets and change rooms, (vii) food preparation and related facilities for people using the reserve, (viii) maintenance depots, (ix) portable lifeguard towers,
The Skywalk is an "activity" within the meaning of s 5.1(1) of the Environmental Planning and Assessment Act 1979 ("EPAA") that can be assessed and determined under Pt 5 of that Act: activity means - (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 3.14 that is prescribed by the regulations for the purposes of this definition, but does not include - (g) any act, matter or thing for which development consent under Part 4 is required or has been obtained, or …
When assessing activities under Pt 5, a determining authority has a duty pursuant to s 5.5(1) of the EPAA to examine and take into account to the fullest extent possible all matters affecting, or likely to affect, the environment by reason of that activity: 5.5 Duty to consider environmental impact (1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
The factors to be taken into account by a determining authority when considering the likely impact of an activity on the environment are set out in s 171 of the Environmental Planning and Assessment Regulation 2021 ("EPA Regulation") (as prescribed by s 5.10(a) of the EPAA): 171 Review of environmental factors - the Act, s 5.10(a) (1) When considering the likely impact of an activity on the environment, the determining authority must take into account the environmental factors specified in the environmental factors guidelines that apply to the activity. (2) If there are no environmental factors guidelines in force, the determining authority must take into account the following environmental factors - (a) the environmental impact on the community, (b) the transformation of the locality, (c) the environmental impact on the ecosystems of the locality, (d) reduction of the aesthetic, recreational, scientific or other environmental quality or value of the locality, (e) the effects on any locality, place or building that has - (i) aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance, or (ii) other special value for present or future generations, (f) the impact on the habitat of protected animals, within the meaning of the Biodiversity Conservation Act 2016, (g) the endangering of a species of animal, plant or other form of life, whether living on land, in water or in the air, (h) long-term effects on the environment, (i) degradation of the quality of the environment, (j) risk to the safety of the environment, (k) reduction in the range of beneficial uses of the environment, (l) pollution of the environment, (m) environmental problems associated with the disposal of waste, (n) increased demands on natural or other resources that are, or are likely to become, in short supply, (o) the cumulative environmental effect with other existing or likely future activities, (p) the impact on coastal processes and coastal hazards, including those under projected climate change conditions, (q) applicable local strategic planning statements, regional strategic plans or district strategic plans made under the Act, Division 3.1, (r) other relevant environmental factors.
Section 9.46(1) of the EPAA confers power upon the Court to grant the relief sought by Hopkins in the motion. It states as follows: 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
Hopkins relied upon s 9.46(1) of the EPAA to effectively argue that irrespective of whatever deficiencies existed with the summons as presently pleaded, he nevertheless had a right to seek interim injunctive relief because of the breaches of the EPAA (and other legislation not referred to in the summons) that he had identified in the summons. This is not correct.

Legal Principles Applying to the Grant of an Interim Injunction

The legal principles to be applied in determining whether or not to grant interim injunctive relief, although well traversed, bear repetition.
An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction (Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 at 153-4, Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [6] and South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [2024] NSWCA 64 at [32]).
Although normally the Court does not give or withhold interlocutory relief upon a forecast as to the ultimate result of the case (Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622), in some cases the strength of the applicant's case, above the threshold of a serious question, may be relevant to the risk of doing an injustice (Castlemaine at 154 and Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536). Put another way, the applicant must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief were granted. That is, the applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending trial (Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] and [65]).
In Tegra (at [41]), Preston J noted that, "the court may consider the relative strength of each party's case: Hubbard v Vosper [1972] 2 QB 84 at 96. Courts in Australia have taken the view that the relative strength of each party's case should be considered along with all the other factors in evaluating the balance of convenience".
Even if an applicant demonstrates a prima facie case, the strength of the case may be relevant to the balance of convenience (Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWLEC 42 at [62]).
The balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice (Kolback at 536). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent, or a third party, would be likely to suffer if the injunction were granted (Beecham at [18]-[19]).
In South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 Pritchard J, referring to Tegra, summarised the factors relevant to the balance of convenience (at [162]. Although overturned on appeal, her Honour's articulation of the legal principles was undisturbed), which I respectively adopt: 162 In Tegra (NSW) Pty Ltd v Gundagai Shire Council (Tegra), Preston CJ of LEC identified the following factors as relevant to the balance of convenience: (1) whether irreparable injury will be caused (at [18]); (2) whether damages are an adequate remedy (at [26]); (3) whether undertaking as to damages are offered (at [29] to [31]); (4) where the status quo lies (at [35]); (5) the nature of interlocutory relief sought (at [37] to [38]); (6) the relative strength of each party's case (at [41]); (7) equitable considerations (at [43]); (8) prejudice to third parties (at [51]); (9) the public interest (at [54] to [56]); and (10) the time period before a final hearing (at [58]).

There is No Serious Question to be Tried

By his own admission, Hopkins conceded that "there were problems" with the current drafting of the summons, however, he sought to proceed with the motion because he was concerned that, given that construction of the project had commenced, if he delayed seeking interim relief, the proceedings could become inutile because the development would be largely completed prior to the determination of the proceedings. When presented with the opportunity of withdrawing the motion, filing an amended summons earlier than 31 January 2025 (as ordered by Pain J on 13 December 2024, when the matter came before her), and seeking an injunction upon the filing of an amended summons with better articulated grounds, he declined to do so.
The Council also agitated for the motion to proceed on the basis that it had come prepared to argue the application albeit premised on the summons in its current form.
In the summons, Hopkins articulates two grounds of review - or purported serious questions to be tried - namely, whether the Council's REF for the Skywalk: 1. "satisfied" s 5.5 of the EPAA by considering to the fullest extent possible all matters affecting, or likely to affect, the environment by reason of the activity; and 2. properly "exhausts" the criteria set out in s 171 of the EPA Regulation.
In his written submissions filed in support of his application, Hopkins submitted that: 18 The exact title, heritage significance, and ownership of this land all form a part of the relevant material case for this judicial review. The REF states that this land is reserved under the National Parks and Wildlife Act although most community members understand that this is community land in the sense of the Local Government Act (1993) and Crown Lands Management Act (2016). Aboriginal Land Rights claims also exist in this area although they are not mentioned in the REF. 19 Further than the basic framework for proceeding in the summons, the tree-clearing and earthmoving may also not be in keeping with the REF. On page 18 of the REF the "potential Impacts" of the works in Chapter 5.1.3 is cited at 1.72 ha (upper limit estimate) of native forest vegetation. However the clearing by large plant machinery appears to be well in excess of that cited in the REF. 20 In chapter 5.1.5 of the REF - Safeguards and Mitigation Measures - there is a stated commitment that vegetation removal is to be kept to the minimum extent required to undertake the works. The level of tree removal appears (see photos) however to be "maximal" for a project of this nature. There is room for large machinery to travel on a road like surface, and the sides of this road work have been fully cleared using an excavator with an attachment piece for shredding trees (see photos). The batter slope on both sides of the road works also significantly encroaches on bushland. The works are at a minimum perhaps 4 metres wide and in parts there is additional clearance of bushland about the same width on one side of the road works. 21 The REF also suggested that local organisations ("businesses") who had been involved in assessments of cultural heritage in the area would be involved in 'the preparatory activity for the Skywalk. Only large plant is apparent on the site and no directions are being taken from local interest groups who provided input to the REF. 22 The advantages of a raised "Skywalk" for reducing damage to soil, flora, and fauna, and potential heritage objects have already been failed by the construction methodology. This is already apparent on site and the largest construction works have not yet been commenced (bridge over Scenic Road and a carpark on Endeavour Drive). 23 Although the application for judicial review of the Skywalk brought by Benjamin Hopkins is not based on 'how significant' the damages of this Activity are (EP&A Act Part 5) it is clear that the damage on site in Oxley Park is significant beyond that in the REF or concept design proposals. 24 An injunction on damage to public property in Oxley Park should be made in the interests of procedural fairness to the application of Benjamin Hopkins to the land and Environment Court with all respect to interlocutory orders which have been entered by the respondent.
Another set of written submissions was relied upon by Hopkins (styled as an affidavit but in truth, and as he conceded, a set of legal arguments) identified similar issues as presently drafted.
As is apparent from even the most cursory examination of the summons, almost none of the grounds articulated and discussed in either set of Hopkins's written submissions appear in the summons as presently drafted.
During the hearing Hopkins also sought to rely upon a further written set of submissions (10 pages in length) which had not been filed with the Court and had not been served upon the Council. The further submissions raised other grounds of challenge that were not identified in the summons (for example, that there had been a denial of procedural fairness in the making of the REF). The Court indicated to Hopkins that it would only proceed to determine the motion on the grounds set out in the summons as currently filed because to do otherwise would be unfair to the Council who had not come prepared to meet a different case.
Because it was not clear from the summons, and these being Class 4 judicial review proceedings, the Court asked Hopkins to identify the decision under review. Hopkins nominated the determining authority's sign off on 30 July 2024 by the General Manager of the Council that ("the decision"):
Based on the completed REF and my knowledge of the project, the assessment has been adequately completed, the project has predictable impacts which would not be significant, the conclusion as to the likely environmental impact of the project is reasonable, and the project can proceed subject to the relevant measures and conditions in this REF, any approval, license or permit.
Hopkins says that it was not until the REF was published on 10 October 2024 that he became aware of the decision. The summons was filed on 7 November 2024, that is three months and seven days after the decision was made.
This raises an issue as to whether or not the proceedings are out of time pursuant to Pt 59 r 59.10(1) of the UCPR: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
Again, this is likely to be a matter, if pursued by the Council, for determination by the trial judge.
It was difficult at times to completely grasp the essence of Hopkins's oral and written submissions with respect to the two grounds of review. This is understandable given his unrepresented status. I have endeavoured to deal with each in turn.
It must be reiterated, however, that, merely because grounds of review are prayed in aid of relief in the summons, this is insufficient to entitle Hopkins to interim relief under s 9.46 of the EPAA.

Section 5.5 of the EPAA

It is assumed by the first ground of review that Hopkins alleges a failure of the Council's duty under s 5.5(1) of the EPAA. The particulars of that failure are not set out.
The nature and scope of the duty imposed by s 5.5(1) of the EPAA was considered by Preston J in Palm Beach Protection Group Inc v Northern Beaches Council [2020] NSWLEC 156; (2020) 250 LGERA 212 (at [260(c)]): The duty is to "examine and take into account" the environmental impact of an activity. Both verbs require positive action by the determining authority. Examination of the environmental impact of an activity involves inspection, inquiry or investigation of the environmental impact (see Macquarie Dictionary definition). Taking into account involves not merely consideration of the environmental impact but also some responsiveness and reflectiveness to the environmental impact in the determining authority's decision-making. In Willoughby City Council v Minister administering the National Parks and Wildlife Act (1992) 78 LGERA 19 at 29, Stein J observed: "The obligation imposed on a determining authority under s 111, to examine and take into account to the fullest extent reasonably practicable all matters likely to affect the environment, imposes a positive obligation to conduct a proper examination. It requires more than merely adverting to a relevant matter and this would be regarded as paying no more than 'lip service' to the obligation".
As the Council observed, the REF sets out the potential environmental impacts of the activity. It contains approximately 80 safeguards and mitigation measures across 13 subjects at Table 6.1 of that document. On any view, the REF is material that was before the Council that would permit it to examine and take into account the likely environmental impacts of the project to form the requisite state of mind.
There is no evidence to suggest that the safeguards and mitigation measures contained in that document have neither been considered by the Council nor carried out.
To the extent that Hopkins takes issue with the fact that the activity is being carried out in Oxley Park, an alleged public reserve, which is not referred to in the REF, it is uncertain how this purported omission is relevant. In any event, the REF makes numerous references to the Skywalk being constructed in "Oxley Scenic Lookout" which is predominantly zoned RE1 Public Recreation under the Tamworth Regional Local Environmental Plan 2010.
Finally, although Hopkins was concerned that the Council had not taken into account the Indigenous cultural heritage of the area the subject of the activity, this argument cannot be maintained in light of his own evidence, that is, the Aboriginal Cultural Heritage Assessment appended to the REF. Furthermore, there was no evidence whatsoever that the land was the subject of a land rights claim under the Aboriginal Lands Rights Act 1983, as he claimed.
As pleaded, therefore, the asserted breach of s 5.5(1) of the EPAA raises no serious question to be tried on the evidence before the Court.

Clause 171 of the EPA Regulation

Clause 171 of the EPA Regulation sets out the matters that are required to be addressed by the REF. Hopkins appears to assert that not all of the factors listed therein were assessed or were adequately assessed by the Council in making the decision.
However, Hopkins has not described how the REF is deficient in this regard. It is a bald assertion without more. When pressed by the Court to identify what was missing from the document, Hopkins candidly replied "I just don't know". As drafted, therefore, there is no serious question to be tried with respect to cl 171 of the EPA Regulation.

The Balance of Convenience Favours Refusing Interim Relief

Because there is no serious question to be tried, this is sufficient to dispose of the motion. However, even if this conclusion is incorrect, I am of the opinion that the balance of convenience is against the granting of the interim injunction. This is because: 1. first, Hopkins cannot demonstrate any damage to any interest of his if the injunction is not granted; 2. second, as Hopkins was at pains to state, he is not bringing the application to prevent harm to the environment; 3. third, as the unchallenged evidence of Kleise demonstrates, the granting of the injunction will cause considerable prejudice to both the Council and Fleetwood Urban; 4. fourth, no undertaking as to damages was proffered by Hopkins and there is no evidence that the proceedings have been brought in the public interest (see rule 4.2(3) of the LEC Rules); 5. fifth, the risk of irreparable harm to the environment is low given that almost all of the clearing has been carried out; and 6. sixth, there is nothing preventing Hopkins from making a further application to the Court for interim injunctive relief once his summons has been amended. The project is not due to be completed until February 2026.

Costs

Although Hopkins sought to argue that the proceedings were brought in the public interest, and that therefore pursuant to r 4.2(1) of the LEC Rules there should be no order as to costs, no evidence was furnished to the Court in support of this submission, and it is a matter best left for determination by the trial judge.
This being an application for interlocutory relief pending the final outcome of the Class 4 proceedings, costs should be reserved. The Council did not seek to cavil with this order.

Orders

It follows that the formal orders of the Court are that: 1. the applicant's notice of motion filed on 18 December 2024 is dismissed; and 2. the first and second respondents' costs of the motion are reserved.

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: 20 December 2024

(2020) 250 LGERA 212

At a glance

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Judgment (11 paragraphs)

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Cases Cited (14)