Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc.

This is a claim to interlocutory injunction restraining: the Respondent itself or its servants, agents or contractors from carrying out development or any work or performing any works of any kind on the subject land being Portion 173 and Lot 1 in DP 42428 at Byron Bay and on the Crown Road Reserve and Crown land to the east of the above referred land until further order.

The claim was filed in Court yesterday as part of the Council's class 4 application, claiming declaratory and injunctive relief against the Respondent in respect of an approved development site situate at Byron Bay in respect of which the Court on 15 March 1995 granted development consent to a community title development creating inter alia 15 residential lots (the 1995 development consent).

The immediate circumstances giving rise to the Council's claim to interlocutory injunction are deposed to in the affidavit of Neil Duncan Howie sworn 12 March 2000. Mr Howie is the Solicitor acting for the Council in these proceedings.

The background facts and context to the present claim are also outlined in two judgments in proceedings between the same parties I delivered last Friday afternoon, where I dismissed the Company's modification application to modify the 1995 development consent and refused development consent to the Company's development application to remove trees from the development site: see proceedings nos 10515B of 1994 and 10096 of 2000.

The most crucial contextual fact is the liability of the 1995 development consent to lapse pursuant to the provisions of the EP&A Act s 95 on 15 March 2000 (ie tomorrow) unless building engineering or construction work relating to the approved development is physically commenced before that date: vide subsection (4). I should say that I am not called upon in the present proceedings to adjudicate upon the question (which is in dispute between the parties) as to whether there has already occurred in relation to the 1995 development consent a relevant physical commencement of works such as would avoid the statutory lapsing of the consent "five years after the date from which it operates": s 95(1).

However, the Respondent puts to the forefront of its defence of the Council's claim to interlocutory injunction the risk that it will incur if, by dint of the grant of the claimed interim injunction, it is restrained from undertaking some physical work on the development site today.

That work, when its case opened yesterday, involved the placing of steel reinforcement into a small excavation trench situate on the development site, and the pouring of concrete into the trench. As will appear, the scope of the work sought to be undertaken was considerably reduced as the hearing progressed.

The trench was apparently created in early October last year as part of the sediment control works approved in respect of the approved 1995 development.

However, work was suspended in October that year on the sediment control works in the face of the Council's insistence that the Company comply with the requirements of Condition 23 of the 1995 development consent. That insistence arose following local community protest to the development being undertaken.

Thereafter, the Company sought to comply with that condition by bringing the aforementioned proceedings seeking modification of the 1995 development consent in respect of condition 23 and seeking development consent for the removal of trees required to carry out the necessary infrastructure works for the approved development.

Those applications having failed in the Court by virtue of the judgments delivered last Friday, the Company's Solicitors notified the Council later that night of its Company's intention to carry out work on the property otherwise than work relating to the removal of trees.

The Council's claim to interlocutory relief asserts that the proposed works relevantly involve a breach of the EP&A Act being in contravention of Condition 23 of the 1995 development consent and in contravention of the EP&A Act s 81A(4) which provides that "subdivision work" (a defined term) in association with a development consent not be commenced until a construction certificate (another defined term) for the subdivision work has been issued.

The parties have fully argued the two legal foundations for the Council's claim to interlocutory relief and invite me to determine those issues finally in the present context. This is, in my view, the appropriate course to adopt.

In my judgment both the Council's bases for claim are well founded in that Condition 23 of the 1995 consent operates to preclude the "commencing" of any works in respect of the 1995 development consent until its requirements are satisfied.

The terms of condition 23 and its context (the 1995 development consent) are set out in both my judgments delivered last Friday. Condition 23 reads as follows:

No tree to be ringbarked, cut down, lopped, removed or damaged, or caused to be ringbarked, cut down, lopped removed or damaged in contravention of the Tree Preservation Order applicable to the land. Any tree or trees which require removal are to be shown on a plan of adequate scale for the approval of Council's Planning Manager prior to any works commencing.

It is the meaning of the second sentence that is in issue and in particular, the meaning of the expression " prior to any works commencing ".

The Council contends that condition imposes a condition precedent to the commencement of "any works" in relation to the approved development.

The Company contends that it is limited to works associated with tree removal.

In my opinion, the requirement imposed by the second sentence operates as a condition precedent to the commencement of any works in respect of the approved development and is not limited to works associated with tree removal.

The expressions "any works" is general and wide and I do not think that there are considerations of subject matter or context that justify limiting the expression in the manner contended for by the Company.

In so concluding, I would add that there has been no challenge to the validity of the condition.

I am satisfied on the evidence of Mr Christopher Pratt (affidavit sworn 12 March 2000) that he is the relevant officer for the purposes of condition 23 and that he has not granted the requisite approval.

It follows that condition 23 has not been fulfilled and it further follows that the works proposed to be undertaken by the Company is in contravention of condition 23 and therefore is in breach of the Act for the purposes of s 123.

The Council's separate basis for claim relies upon the EP&A Act s 81A. Again, I am satisfied by Mr Pratt's evidence that no relevant construction certification has been sought or granted in respect of the subdivision works.

Accordingly I am satisfied that the works proposed to be undertaken by the Company are in contravention of s 81A(4) and therefore involve a breach of the EP&A Act: s 123.

However, if the Council's claim were confined to reliance upon s 81A, I do not think in the exercise of discretion that the interlocutory injunction should be granted. This is because of the fact that on 12 April 1999, the Council approved the Company's engineering drawings (Exhibit A).

It may be that this approval, emanates from the requirement of the 1995 development consent and does not constitute a grant of subdivision approval under the Local Government Act Part XII prior to its repeal and does not constitute the grant of any construction certificate as required by s 81A(4). (At the time the 1995 development consent was granted, a community title development, involving subdivision required separate approval under the Local Government Act 1919 Part XII).

Nevertheless, the approval of the engineering plans is a powerful consideration weighing in favour of exercising the discretion in favour of the Company.

However, the Council's claim is more assuredly founded on condition 23, as I have interpreted it.

This brings me to the following difficult question, namely, how in the circumstances of this case should the Court's discretion be exercised.

These circumstances include, most materially my finding that Condition 23 will be breached by the carrying out of any work on the 1995 approved development.

However, the Company offers an undertaking not to carry out any work other than the placing of reinforcement in the excavated trench. All but two rods of the steel reinforcement have been deposited on the site. This is the work which the Company wishes to carry out before tomorrow.

All that remains is for that reinforcement to be put in place and two additional lengths of steel reinforcement to be carried to the site by two men. The works will take less than two hours for two men to undertake.

The Company submits that in the exercise of discretion, the Court will accept the Company's undertaking to guard against the added risk of the 1995 development consent lapsing if the Company is restrained from doing these minimal works, particularly in the circumstances where the Council offers no undertaking as to damages.

I have concluded that the balance of convenience favours an acceptance of the Company's undertaking so as to provide it with the last opportunity to carry out the small amount of work it proposes today.

Whether that work, which I have held will involve a breach of Condition 23 of the 1995 development consent and of the EP&A Act s 81A(4) , will be availing in the Company's quest to avoid the statutory lapsing of the 1995 development consent is not for me now to say: but see Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. (1992) 81 LGERA 132.

In reaching this conclusion, the following factors have been decisive:- (i.) the proposed work is minimalist work and will not involve any serious environmental damage to the development site; (ii.) the Company has no realistic opportunity, because of the extreme time constraints, to challenge my construction of Condition 23; (iii.) if my construction were wrong, the Company may suffer irremediable harm if it were prevented by interlocutory injunction, from carrying out its proposed work in its attempt to avoid the lapsing of the 1995 development consent; (iv.) the Council's position in the proceedings has not been weakened; (v.) the public interest, in the due and proper enforcement of the EP&A Act is not compromised to any meaningful extent.

For all the foregoing reasons, I accept in the Respondent's undertakings proffered to the Court yesterday and I dismiss the Council's claim to injunctive relief.

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.

38. For all the foregoing reasons, I accept in the Respondent's undertakings proffered to the Court yesterday and I dismiss the Council's claim to injunctive relief.